THE CENTER FOR EDUCATION V. STATE OF NEW JERSEY DEPARTMENT OF EDUCATION, 4/3/17, (#99-17)

99-17
THE CENTER FOR EDUCATION, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
STATE OF NEW JERSEY, 	: 	DECISION
DEPARTMENT OF EDUCATION,
:
RESPONDENT.
:
SYNOPSIS
Petitioner – the Center for Education (Center) – alleged that the respondent New Jersey
Department of Education (NJDOE) acted in a biased and arbitrary, capricious and unreasonable
manner when the Office of Special Education Programs (OSEP) denied the petitioner’s 2014
application to become an Approved Private School for Students with Disabilities (APSSD).
Petitioner further contended that the NJDOE conducted an improper investigation in connection
with the Center’s application for approval. 	Respondent asserted that the denial of the Center’s
application was pursuant to regulatory requirements and proper under the circumstances.
Respondent further contended that the matter became moot when the Center’s application was
advanced from Phase II to Phase III in March 2015; the Center received preliminary approval in
May 2015.
The ALJ found, inter alia, that: 	the matter was not moot because the issue was capable of
repetition and of substantial importance to the public; and the OSEP’s investigation was a sham,
and its conclusion was contrary to the facts before it. 	The ALJ concluded that while the
NJDOE’s conduct did not demonstrate bias, NJDOE did act in an arbitrary, capricious and
unreasonable manner when it improperly denied the Center’s 2014 application “based on
information it knew was incorrect.” 	The ALJ ordered that the matter be concluded “in
accordance with the findings set forth” in the Initial Decision.
Upon a comprehensive review, the Commissioner rejected the Initial Decision, finding that the
matter became moot when the Center’s application was advanced in March 2015, and then
granted preliminary approval in May 2015. 	In so deciding, the Commissioner found that the
ALJ either failed to understand or disregarded the governing regulations with respect to the facts
in the matter and the standard for mootness.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It
has been neither reviewed nor approved by the Commissioner.
April 3, 2017

1
OAL DKT. NO. EDU 14525-14
AGENCY DKT. NO. 280-9/14
THE CENTER FOR EDUCATION, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
STATE OF NEW JERSEY, 	: 	DECISION
DEPARTMENT OF EDUCATION,
:
RESPONDENT.
:
The record of this matter and the Initial Decision of the Office of Administrative
Law (“OAL”) have been reviewed, as have the exceptions filed pursuant to N.J.A.C. 1:1-18.4 by
the respondent, and the petitioner’s reply thereto. 	In this matter, petitioner alleges that the
New Jersey 	Department 	of 	Education 	(“NJDOE”) 	acted 	in 	an 	arbitrary, 	capricious 	and
unreasonable manner when the Office of Special Education Programs (“OSEP”) denied the
Center for Education’s (“Center”) application to establish itself as an Approved Private School
for Students with Disabilities (“APSSD”) on the basis that the Center did not demonstrate a need
for the school.1 	Petitioner further contends that the NJDOE acted in a biased manner, and
conducted an improper investigation in connection with the Center’s application for approval.
Respondent argues that the NJDOE did not act in an arbitrary, capricious, unreasonable, or
1 For clarity and accuracy, this decision will only refer to the Center for Education as “Center,” and the Special
Children’s Center will be referred to as “SCC.” A review of the record reveals that the Initial Decision and several
submissions by petitioner use “Special Children’s Center” and “Center for Education” interchangeably. The Center
and SCC cannot be considered the same entity with regard to the subject matter of this litigation: SCC is described
as a non-profit organization located in Lakewood, New Jersey and Brooklyn, New York, providing various services
to children and adults with disabilities; it is not an APSSD, nor is SCC seeking such status in this litigation.
Notably, the Lakewood School District (“Lakewood” or “District”) has an ongoing relationship with SCC that is
separate from the Center, which includes a services agreement entered into in August 2012, to provide services to
the District’s children with special needs at SCC’s “Day Care Center.” The Center for Education, which is not the
“Day Care Center” and is referred to as a division of SCC in various documents submitted by petitioner, is a for-
profit school for young children with disabilities, and is the only entity in this litigation seeking to establish itself as
an APSSD. Therefore, referring to the two entities as the same is incorrect.

2
biased manner because the denial of the application was pursuant to the regulatory requirements,
and proper under the circumstances. 	Respondent further contends that the matter became moot
when the Center’s application was advanced to Phase III in March 2015, after the NJDOE
received documentation demonstrating sufficient need, which rendered the Center eligible for
APSSD status.2
The ALJ found that the matter was not moot because the issue was capable of
repetition and of substantial importance to the public. The ALJ explained:
The approval given in the matter was a preliminary approval only
good for two years and the petitioner will have to continue
substantiating a daily enrollment of at least twenty-four students.
During this process they may well be faced with again dealing with
the issue of being denied continued approval based on unknown or
known incorrect information relied upon by the DOE and is
therefore subject 	to 	repetition. 	In 	addition, 	this 	issue is 	of
substantial important because of the waste of judicial resources, the
expense in filing and prosecuting this appeal, and the substantial
expenditure of resources in defending the indefensible on the part
of the DOE after it knew it had relied on incorrect information.
Furthermore this matter I find to be of substantial importance also
for the reason that it hopefully will affect public policy by
henceforth having applications under OSEP’s review be treated
fairly, openly, honestly and efficiently in the application process.
(Initial Decision at 5)
The ALJ further found that OSEP’s “investigation was a sham, and its conclusion was contrary
to the facts before it.” The ALJ concluded that while the NJDOE’s conduct did not demonstrate
bias, the NJDOE did act in an arbitrary, capricious and unreasonable manner when it denied the
Center’s application. (Id. at 6)
Respondent takes exception to the ALJ’s finding that the matter is not moot and
that the NJDOE acted in an arbitrary, capricious and unreasonable manner. 	Respondent argues
that: the ALJ erred when he determined that this matter was not moot after the Center was
2 The needs assessment survey submitted by Lakewood in March 2015, in support of the Center’s application for
APSSD, reflected that more that twenty-four students from the District would likely be placed at the Center.

3
advanced from Phase II to Phase III and received preliminary approval; the ALJ erred when he
conducted a hearing in this matter and denied the NJDOE’s motion to dismiss the matter as moot
– filed in March 2015 – during the May 8, 2015 hearing; the ALJ erred when he found that the
NJDOE acted in an arbitrary, capricious and unreasonable manner in denying the Center’s
application at Phase II; and the ALJ erred in entering summary decision in favor of the Center.3
Respondent maintains the matter is moot because there is no existing controversy, and the issue
involved is not a matter of substantial importance to the public that is capable of repetition yet
evading review. 	Respondent further contends that the NJDOE’s denial of the Center’s
application in Phase II was appropriate and reasonable because information provided to OSEP by
way of the needs assessment survey did not satisfy the regulatory requirement of “sufficient
need.”4 	Respondent submits that OSEP’s investigation of the matter and reliance on the local
school district were also appropriate and reasonable.5
Petitioner has filed a reply to respondent’s exceptions, arguing that the ALJ
correctly determined that the matter was not moot and that OSEP’s investigation was a sham.
Petitioner repeats the following arguments in its submission: 1) NJDOE employees were “well
aware” that there were more than twenty-four students from Lakewood who would be enrolled at
the Center based on information available to the NJDOE from the Center, documents that the
NJDOE had access to from other offices and employees within the Department, and informal
3 Although the Initial Decision does not explicitly dispose of the motion and cross-motion filed by the petitioner and
respondent, respectively, after the hearing in this matter, the pleadings are referenced in the Initial Decision and it
can be inferred that determination of the pending motions were incorporated into the ALJ’s recommendation to the
Commissioner.
4 “The applicant shall . . . document the need for a minimum of 24 public school placement students in order to be
approved by the Commissioner.” See N.J.A.C. 6A:23A-18.3(b)(1).
5 N.J.A.C. 6A:14-7.2(a)(2) provides in relevant part: “A survey of need indicating the number, age range, types of
students with disabilities to be served by the proposed programs/services and the reasons these students cannot be
served in the resident district, supported by documentation from local public school districts. Documentation of local
school districts surveyed shall be included.”

4
exchanges between OSEP and other NJDOE employees. 	The NJDOE “chose to ignore” all the
“independent” information and engaged in “deviant behaviors”; 	2) OSEP conducted a “sham
investigation” as it relied on information from Lakewood employees, even though OSEP
employees were “warned” of a Lakewood employee’s alleged bias against the Center.6 	OSEP
improperly interviewed the Superintendent of Schools and the Director of Special Services when
it should have contacted the Center or the Lakewood employee who executed the needs
assessment survey; 	3) The matter is not moot because it is capable of repetition yet evading
review, since the law cannot “sanction such ‘sham’ investigations of the facts,” and because in
this matter the NJDOE “deviated from its normal procedures and the Code, albeit, failing to
allow truthful and accurate correction, not to mention inquiring of individuals who had known
‘agendas’ and/or no knowledge and/or information.” (Petitioner’s Exceptions at 10-11, emphasis
in original) 	Additionally, petitioner asserts that the NJDOE has already repeated this conduct,
citing a case wherein OSEP employees “direct[ed]” Lakewood to remove students from SCC and
“wreaked havoc with tons of classified public school children’s lives.”7 (Id. at 12) 	Finally,
6 Petitioner inappropriately introduces a tenure matter relating to one of the Lakewood employees, interviewed by
OSEP during its investigation process, to establish that the Lakewood employee was not credible and had “her own
agenda towards the Application,” and that the NJDOE was aware of this “fact.” Petitioner’s assertions are
unsubstantiated because there is neither any proof nor has there been a finding of “agenda” or “bias” against the
Center and its application from the Lakewood employee with regard to this matter. 	Moreover, the Lakewood
employee is not a party to this matter, and the facts in this matter are unrelated to the tenure charges.
7 Petitioner, again, introduces a case where the facts and issues are unrelated and does not support its argument that
the issue in this matter is capable of repetition. Petitioner refers to J.N. and F.N. o/b/o E.N., et al., v. Lakewood
Twp. Bd. of Educ., OAL Dkt. No. EDS 13659-14, (August 24, 2016), to suggest that the issue in that litigation –
revision of children’s IEPs to change their placement from SCC to another school – is the same as the NJDOE’s
initial denial of the Center’s application for failure to establish sufficient need. It is undeniable that the placement
considerations raised in J.N., and the parents’ objections to removal of their children from SCC had nothing to do
with the Center’s application to become an APSSD. Based on the evidence in the record, it also bears noting that
the Lakewood students enrolled in SCC have no effect on the Center’s student enrollment because the SCC students
do not automatically transition from SCC to the Center’s program – placement is based on the students’
Individualized Education Program as determined by the Lakewood Child Study Team.

5
petitioner reiterates its position that this matter should be independently reviewed by another
entity other than the Commissioner because the NJDOE is a party to this matter.8 (Id. at 13)
Upon a comprehensive review of the record, the Commissioner rejects the ALJ’s
decision. 	Specifically, the Commissioner finds that the matter became moot when the Center’s
application was advanced from Phase II to Phase III in March 2015, and there was no remaining
dispute or controversy once the Center was granted preliminary approval in May 2015. 	It
appears that in deciding the mootness issue, the ALJ either failed to understand, or disregarded,
the governing regulations with respect to the facts in this matter and the standard for mootness.
It is well-settled that a matter is moot when it no longer presents a justiciable
controversy, and the determination sought, when rendered, cannot have a practical effect on the
existing controversy. 	See Oxfeld v. New Jersey State Board of Education, 68 N.J. 301 (1975).
Moot cases may, nevertheless, be adjudicated 	when the issues raised are of substantial
importance to the public and are capable of repetition yet evade review. 	See In re J.I.S.
Industrial Service Co. Landfill, 110 N.J. 101 (1988). 	The ALJ found that the issue at hand is
capable of repetition because the Center’s approval was “a preliminary approval only good for
two years and petitioner will have to continue to substantiate a daily enrollment of at least
twenty-four students.”9 Essentially, the ALJ suggests that the issue at hand – NJDOE’s denial of
preliminary approval – is capable of repetition two years from now because the Center (just like
8 N.J.S.A. 18A:9-1 provides in relevant part, “[t]he commissioner shall have jurisdiction to hear and determine,
without cost to the parties, all controversies and disputes arising under the school laws, excepting those governing
higher education, or under the rules of the State board or of the commissioner.” The State Legislature has provided
the Commissioner with jurisdiction to hear and determine all controversies and disputes relating to the school laws
of the State except in limited circumstances. The subject matter of this litigation does not fall within one of the
narrow exceptions enumerated in the statute. Additionally, the Legislature has not made an exception for situations
where the NJDOE is a party to the case.
9 N.J.A.C. 6A:23A-18.3(c)(1)-(i) provides: The school shall receive preliminary approval to operate for a two year
period, after which the school shall provide documentation that the school has a minimum ADE of 24 public school
placement students by the end of the second school year . . . . A school meeting the minimum ADE of 24 public
school placement students by the end of the second school year shall receive new school approval.

6
all other preliminarily approved schools in its position) has to provide evidence of compliance
with the regulatory requirements in order to attain approval as a “new school” and maintain its
APSSD status.
First, the preliminary approval stage and the new school approval stage are two
separate phases of the approval process. 	Preliminary approval requires corroboration from the
local school district: a needs assessment survey is to be conducted at the local school district
level to substantiate “sufficient need.” Once the applicant has received preliminary approval, the
local school district is no longer involved.10 Second, at the end of the two years, the applicant
school needs to meet the minimum average daily enrollment (ADE) of twenty-four public school
placement students so that it may receive approval as a “new school.”11 	In other words, the
Center (just like other APSSDs in its position) needs to satisfy the minimal requirements of the
regulation and the onus remains exclusively on the Center to provide proper information and data
from its records to the NJ DOE to prove that it continues to qualify as an APSSD. Additionally,
if a dispute arises regarding the Center’s approval, there is a mechanism through which the
Center may appeal the determination. 	As such, the issue raised in this litigation relating to the
NJDOE’s denial of the Center’s preliminary approval is not capable of repetition yet evading
review.
Similarly, this matter does not meet the criteria of substantial importance to the
public. The ALJ’s finding – that the issue is of substantial importance because of “the waste of
10 This should also resolve the ALJ’s concern that “[d]uring this process they [the Center] may well be faced with
again dealing with the issue of being denied continued approval based on unknown or known incorrect information
relied upon by the DOE. . . .” (emphasis added), because any information provided to the NJDOE would be coming
directly from the Center.
11 N.J.A.C. 6A:23A-18.1 defines “average daily enrollment” as follows: the sum of the days present and absent of all
school students enrolled in the register(s) of the school divided by the number of days the approved private school
for students with disabilities was actually in session for the entire school year rounded to the nearest four decimal
places, except in no event shall the divisor be less than 180 days (emphasis added).

7
judicial resources, the expense in filing and prosecuting this appeal, and the substantial
expenditure of resources in defending the indefensible on the part of the DOE. . . ”, and because
it “hopefully will affect public policy by henceforth having applicants under OSEP’s review be
treated fairly, openly, honestly and efficiently in the application process” – is unsubstantiated
and unpersuasive. 	Matters of substantial importance are issues that relate to the welfare of the
general public or issues that could arise in the public context where the general public may be a
collective stakeholder. 	An individual’s or entity’s personal interests cannot be substituted for
matters that are of substantial importance to the public. 	Furthermore, the “waste of judicial
resources” and “substantial expenditure of resources” were certainly not a result of the nature of
this issue (denial of preliminary approval pursuant to State regulations); thus, such bases cannot
be utilized to justify a finding of “substantial importance.”12 The Commissioner, therefore, finds
that this matter became moot in March 2015, when the Center received preliminary approval
from the NJDOE, and no justiciable controversy exists that is of substantial importance and
capable of repetition yet evading review.
The Commissioner also finds that the ALJ’s determination that the NJDOE acted
in an arbitrary, capricious and unreasonable manner when OSEP conducted an investigation and
denied the Center’s application, was incorrect. 	Specifically, the Commissioner finds that the
ALJ inappropriately applied the requirements of the governing regulations when he determined
that the NJDOE’s actions were arbitrary, capricious and unreasonable. 	The ALJ’s finding that
the NJDOE was arbitrary, capricious and unreasonable does not require significant discussion, as
the matter has been rendered moot. 	Notwithstanding, the Commissioner has considered the
12 The ALJ’s decision to proceed to hearing when the matter was moot – despite having the opportunity to dispose
of the case prior to the hearing – was improper, extraneous, and the true waste of judicial resources. There is also no
evidence in the record that either the Center or any other applicant has been treated unfairly, dishonestly or
inefficiently by the NJDOE with regard to the approval process.

8
merits and finds that OSEP followed the mandate of the regulation when it denied the Center’s
application for failure to demonstrate “sufficient need.”13 	Once documentation was submitted
establishing sufficient need, OSEP approved the application within the regulatory timeframe.14
Since 	OSEP’s 	investigative 	efforts 	in 	this 	matter 	exceeded 	the 	scope 	of 	the 	governing
regulations, the Commissioner will not address the merits of the investigation in detail either.
The Commissioner finds, however, that OSEP appropriately relied on representations made by
Lakewood and information provided by its employees because “sufficient need” must be
supported by documentation from the local school district, not the applicant or any other
independent source. 	See N.J.A.C. 6A:14-7.2; N.J.A.C. 6A:23A-18.3. 	Seeking alternative
confirmation of “sufficient need” – as petitioner and the ALJ have proposed – when the
regulations are unambiguous, would constitute a deviation from the regulations. 	In this regard,
OSEP undertook an unnecessary yet considerate project when it conducted its investigation, as
the plain language of the regulations do not require such efforts. 	OSEP could have simply
denied the application without engaging in an investigation, solely based on the contents of the
needs 	assessment 	survey, 	because 	it 	did 	not 	reflect 	sufficient 	need 	as 	defined 	under
N.J.A.C. 6A:23A-18.3. 	Instead of denying the application outright, OSEP appears to have
provided the Center a second chance by investigating the matter and seeking to reconcile any
discrepancy between the Center’s representations in its application and the information on
Lakewood’s needs assessment survey in support of the Center’s application.
The regulations are clear: it is the applicant’s responsibility to ensure submission
of 	all 	required 	information 	pursuant 	to 	the 	provisions 	of 	N.J.A.C. 	6A:14-7.2 	and
13 The needs assessment survey submitted by Lakewood listed less than twenty-four students, which is the minimum
requirement. See N.J.A.C. 6A:23A-18.3(b)(1).
14 See N.J.A.C. 6A:14-7.2(a)(2).

9
N.J.A.C. 6A:23A-18.3; the applicant must provide evidence of sufficient need (corroboration
from 	the 	local 	school 	district); 	if 	the 	applicant 	follows 	the 	procedures 	and 	meets 	the
requirements, it advances through the application process; if the applicant does not ensure
provision of proper evidence and information, the applicant does not obtain approval. Following
the regulations and acting in accordance with its provisions is the antithesis of arbitrary,
capricious 	and 	unreasonable. 	Remarkably, 	the 	suggestions 	made 	by 	the 	ALJ 	in 	the
Initial Decision and by the petitioner in its exceptions would result in OSEP circumventing the
regulatory 	process, 	which 	could 	be 	deemed 	arbitrary, 	capricious 	and 	unreasonable.15
Accordingly, the recommended decision of the ALJ is rejected, and the petition is hereby
dismissed as moot.
IT IS SO ORDERED.16
ACTING COMMISSIONER OF EDUCATION
Date of Decision: April 3, 2017
Date of Mailing: 	April 3, 2017
15 The ALJ and petitioner have suggested that in reviewing the Center’s application, OSEP should have: looked to
other sources not outlined in the regulations; relied on informal information shared and discussed among colleagues;
made inappropriate inferences regarding the sources of information and parties involved in the process; determined
the credibility of information received based on tenuous allegation, and engaged in activities not required by the
regulation.
16 Pursuant to P.L. 2008, c. 36 (N.J.S.A. 18A:6-9.1), Commissioner decisions are appealable to the Superior Court,
Appellate Division.

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 14525-14
AGENCY DKT. NO. 280-9/14
THE CENTER FOR EDUCATION,
Petitioner,
v.
STATE OF NEW JERSEY,
DEPARTMENT OF EDUCATION,
Respondent.
Michael I. Inzelbuch, Esq., for petitioner
Caroline Jones, Deputy Attorney General, and Jennifer Hoff, Deputy Attorney
General, for respondent (Christopher S. Porrino, Attorney General of New
Jersey, attorney)
Eric L. Harrison, Esq., and Steven K. Parness, Esq., for intervenor (Methfessel
& Werbel, attorneys)
Record Closed: October 11, 2016 	Decided: November 17, 2016
BEFORE JOHN SCHUSTER III, ALJ:

In this matter petitioner, the Center for Education t/a Special Children’s Center
(SCC), brings a Notice of Motion, filed September 20, 2016 requesting the relief by way
of a finding that respondent, State of New Jersey, Department of Education (DOE)
acted in a biased and arbitrary manner in not granting petitioner’s 2014 application to
become an approved private school for students with disabilities. 	DOE filed a Cross
Motion on October 11, 2016 seeking an order dismissing the petition as moot or in the
alternative moving for summary decision as no material facts are in dispute.
FINDINGS OF FACT AND PROCEDURAL HISTORY
The DOE is authorized to approve institutions of learning to provide programs for
students with disabilities upon proof that certain criteria are met. 	N.J.A.C. 6A:14-7.1 et
als. 	Among the criteria is the demonstration of need from local public school districts.
Need is met upon a showing that a minimum of twenty-one public school students
attend the school. 	N.J.A.C. 6A:23A-18.3. 	Petitioner filed an application seeking
approval in April 2014. 	Phase I of the application process was met by May 6, 2014
leaving only a sufficient determination of need. 	On or about June 30, 2014 the
Lakewood School District submitted Attachment C, Local School Districts’ Assessment
Survey Response Form (P-1) to the DOE as part of petitioner’s application process.
The document was signed by Laura Winters, the Superintendent of Schools and Eli
Freund, the District’s Supervisor of Child Study Teams and listed by initials twenty-one
students who were currently at petitioner’s facility and would continue in the 2014–2015
school year. 	This contradicted petitioner’s application which informed DOE “The
Special Children’s Center Preschool (Center) currently educates thirty-eight preschool
children with disabilities from the Lakewood Public Schools (Lakewood).” 	Presumably
to resolve this disparity the DOE Commissioner’s Office dispatched John Worthington,
the Manager of Policy and Planning, to investigate this issue.
Instead of checking with the DOE’s county office which is supposed to have a
record of all out-of-district placements, a meeting was arranged with the Lakewood
District. 	Mr. Worthington directed Dr. Dolores Walther, the Acting Coordinator of
Dispute Resolutions and Coordinator of Complaint Investigations, to accompany him to

OAL DKT. NO. EDU 14525-14
that meeting. 	Her purpose was to listen, take notes, and ask follow-up questions if
relevant. 	Lakewood District was represented at that meeting by Superintendent of
Schools, Laura Winters and Helen Tobia, the Director of Special Services. Ms. Winters
signed the assessment along with Eli Freund, the Supervisor of Child Study Teams.
Ms. Tobia was not a signatory. 	Mr. Worthington asked at that meeting if any names
were missing or were the twenty-one individuals listed accurate, and whether there was
any reason to reconsider the document. Ms. Winters stated she did not prepare the list
of twenty-one students on attachment C (P-1) as that was done by the District’s
attorney Mr. Zitomer and given to her for signature. 	She stated she did not know
anything about the particular students at petitioner’s facility and signed it assuming its
accuracy. Ms. Tobia however believed that the twenty-one students were an inaccurate
number as five or six of them were no longer attending the Special Children’s Center.
That brought the number from twenty-one down to fifteen or sixteen students. 	Either
Mr. Worthington or Dr. Walther asked to see the IEPs for the children at SCC but only
ten IEPs could be produced. 	The IEPs revealed that some of the students were in an
inclusion class with supports or in a preschool disabled class. 	As a result of that
meeting the discrepancy of what the District reported as opposed to what the petitioner
reported increased instead of what was expected that being that additional students at
SCC would be identified. 	Mr. Worthington’s investigation seemed to end at that point.
A reasonable effort could have been made to contact Mr. Freund who signed the
document and inquire as to him how many students he could verify were at SCC and
were going to continue in the 2014–2015 school year or SCC could have been
contacted directly and/or visited to physically see the students in attendance and/or
review their records to determine the accuracy of the thirty-eight or thirty-nine students
that they claimed to be in attendance. 	This did not happen. 	And one must questions
the gross inefficiency in which this investigation took place. In addition, in the early part
of August 2014 Dr. Walther informed Mr. Worthington that she was aware at that time
that there were at least thirty-one preschool disabled students attending SCC. 	Mr.
Worthington acknowledged receiving that information. 	In spite of the DOE having that
information a denial letter was sent to SCC on August 25, 2014 by Susan Martz the
Assistant Commissioner denying the 2014 application for approval based on the needs
assessment surveys submitted to OSEP did not reflect the minimum of twenty-four

potential student placements at SCC. 	DOE has not explained why they did not review
their own county office’s records, did not question Mr. Freund, did not physically count
the number of children from Lakewood at SCC or did not examine the student records
and IEP’s in SCC’s files as the later would have given Mr. Worthington an accurate
number upon which the DOE could make a supportable determination of need. 	While
one could argue an incomplete investigation is simply inefficient and/or negligent work
one must conclude capriciousness in the denial of August 25, 2014 when the DOE
knew directly from Dr. Walther that there were at least thirty-one students attending the
Special Children’s Center.
As a result of that denial a petition was filed by SCC on September 24, 2014
seeking further review of the needs assessment, to complete the review of SCC’s
application based on the needs assessment review and for a finding that DOE acted in
a biased and arbitrary fashion. 	The answer was filed by DOE on November 4, 2014.
The Lakewood BOE was permitted to intervene on February 10, 2015. In furtherance of
a motion, on or about February 9, 2015, Mr. Eli Freund submitted an affidavit as the
Supervisor of Special Services for the Lakewood Board of Education indicating that
SCC 	educates 	thirty-eight 	Lakewood 	students, 	thirty-four 	of 	which 	are 	preschool
disabled. 	In spite of now learning from the signatory on the original needs assessment
that there were thirty-four preschool disabled students at SCC the litigation continued
and testimony of Dr. Walther and Mr. Worthington was taken on May 5, 2015. 	The
litigation terminated on May 28, 2015 when DOE advised petitioner that they were
preliminarily approved for the 2015–2016 and 2016–2017 school years for four classes
for preschool disabled students and one class for multiply disabled students. 	That
notice also provided that this preliminary approval could be revoked if SCC did not
provide documentation of a minimum average daily enrollment of twenty-four public
school students.
Ms. Walter testified during the hearing of May 8, 2015 that all the children on P-1
were confirmed to have IEPs at SCC in the preschool disabled self-contained program
in the 2014–2015 school year. 	She was also shown during that hearing eighteen

OAL DKT. NO. EDU 14525-14
additional IEPs for children at SCC which brought the number at that time to thirty-nine
students attending the preschool disabled program.
LEGAL ARGUMENT
Respondent argues that because preliminary approval to operate was granted to
petitioner effective July 1, 2015 this matter should be dismissed as moot. 	“An action is
considered moot when it no longer presents a justiciable controversy because the
issues involved have become academic. 	A case is moot when a determination is
sought on a matter which, when rendered, cannot have any practical effect on the
existing controversy.” 	Victoria v. Board of Educ. of Woodbridge, 1982 S.L.D. 1, 5.
However courts will hear moot cases nevertheless when the issues they raise are of
substantial importance and are capable of repetition yet evade review. 	In re J.I.S.
Indus. Serv. Co. Landfill, 110 N.J. 101 (1988); See also Handabaka v. Div. of Consumer
Affairs, 167 N.J. Super. 12, 14 (App. Div. 1979). In this matter SCC’s license to operate
is always subject to the scrutiny of the DOE. 	The approval given in this matter was a
preliminary approval only good for two years and the petitioner will have to continue
substantiating a daily enrollment of at least twenty-four students. 	During this process
they may well be faced with again dealing with the issue of being denied continued
approval based on unknown or known incorrect information relied upon by the DOE and
is therefore subject to repetition. 	In addition this issue is of substantial importance
because of the waste of judicial resources, the expense in filing and prosecuting this
appeal, and the substantial expenditure of resources in defending the indefensible on
the part of the DOE after it knew it had relied on incorrect information. Furthermore this
matter I find to be of substantial importance also for the reason that it hopefully will
affect public policy by henceforth having applicants under OSEP’s review be treated
fairly, openly, honestly and efficiently in the application process. 	For those reasons I
CONCLUDE that this matter is not moot but the issues raised are of substantial
importance and are capable of repetition.
As to petitioner’s demand for a finding that DOE operated in a biased and
arbitrary fashion I do not find that any bias has been demonstrated on the part of

respondent. 	I cannot find however that it did not act arbitrarily, capriciously, or
unreasonably. 	In fact I find it operated in all three of those manners. 	Its investigation
was a sham, and its conclusion was contrary to the facts before it. 	While I cannot find
any 	fault 	with 	Assistant 	Commissioner 	Martz 	because 	there 	have 	been 	no facts
submitted that she was aware of the knowledge and actions of Mr. Worthington, that
does not excuse the conduct of the DOE.
CONCLUSION
For the reasons set forth above I CONCLUDE that the DOE acted in an arbitrary
fashion when it incorrectly decided the issue of Phase II based on information it knew
was incorrect. 	And I hereby ORDER that this matter be concluded in accordance with
the findings set forth herein.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.

OAL DKT. NO. EDU 14525-14
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked "Attention: Exceptions." A copy of any exceptions must be sent to
the judge and to the other parties.
November 17, 2016
DATE 	JOHN SCHUSTER III, ALJ
Date Received at Agency: 	November 17, 2016
Date Mailed to Parties: 	November 17, 2016
/cb

OAL DKT. NO. EDU 14525-14
APPENDIX
WITNESSES
For petitioner:
Dolores Walther
John Worthington
For respondent:
None
For intervenor:
None
EXHIBITS
For petitioner:
P-1 	Attachment C, dated June 30, 2014
P-2 	Attachment C, dated March 13, 2015
P-3 	Letter from Chaya Bender to Dr. Walther
For respondent:
None
For intervenor:
None