W.B. and D.B., on behalf of minor child, B.B. v. Board of Education of the Township of Wayne, Passaic County, 4/5/2021, (#75-21)

75-21
New Jersey Commissioner of Education
Final Decision
W.B. and D.B., on behalf of minor child, B.B.,
Petitioners,
v.
Board of Education of the Township of Wayne,
Passaic County,
Respondent.
Synopsis
Pro se petitioners challenged the respondent Board’s determination that B.B. is not entitled to attend
Wayne Valley High School (Wayne Valley) because he is not residing within the attendance zone for that
school; petitioners claim their move from Wayne Valley’s attendance zone was due to financial hardship and
the change in school assignment has caused B.B. anxiety in addition to his other learning issues; 	petitioners
sought to have B.B. reassigned from Wayne Hills High School (Wayne Hills) to Wayne Valley, both of which
are operated by the Wayne Township school district; and petitioners contended that the Board should exercise
its discretionary powers under Policy #5120, which allows that the superintendent may assign a pupil to a
school other than the one designated by the attendance area when such an exception is justified by
circumstances and/or is in the best interests of the pupil.
The ALJ found, inter alia, that: a school board has discretionary power to determine which school students will
attend within its district, so long as the decision is not contrary to law; the Board has applied Policy #5120 in an
even-handed manner and B.B. was permitted to finish his last year of middle school in the Wayne Valley
attendance zone, as is typical for pupils in their last year at a school; the Board considered whether attendance
at Wayne Valley was required in the best interests of the pupil and determined that B.B. could obtain all the
services he needs at either school; and B.B. would be entering his first year of high school whether at Wayne
Hills or Wayne Valley. 	The ALJ concluded that the Board did not act in an arbitrary, capricious, or
unreasonable manner when it denied petitioners’ request to allow B.B. to attend Wayne Valley while the family
resided in the attendance zone for Wayne Hills, and recommended that the petition be dismissed.
Upon review, the Commissioner concurred with the ALJ’s findings and conclusion. 	Accordingly, the
Initial Decision of the OAL was adopted as the final decision in this matter and the petition was dismissed.
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 5, 2021

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OAL Dkt. No. EDU 05471-20
Agency Dkt. No. 113-5/20
New Jersey Commissioner of Education
Final Decision
W.B. and D.B., on behalf of minor child, B.B.,
Petitioners,
v.
Board of Education of the Township of Wayne,
Passaic County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge (ALJ) that
that Board did not act in an arbitrary, capricious, or unreasonable manner when it denied petitioners’
request to allow their minor child to attend Wayne Valley High School while the family resided in the
attendance zone for Wayne Hills High School.
According, the Initial Decision of the OAL is adopted as the final decision in this matter,
and the petition of appeal is hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	April 5, 2021
Date of Mailing: 	April 9, 2021
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.

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State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 05471-20
AGENCY DKT. NO. 113-5/20
W.B. AND D.B., ON BEHALF OF MINOR
CHILD, B.B.,
Petitioner,
v.
BOARD OF EDUCATION OF THE TOWNSHIP
OF WAYNE, PASSAIC COUNTY,
Respondent.
_______________________________________
W.B. and D. B., petitioners pro se
John G. Geppert, Jr., Esq., for respondent Wayne Township Board of Education
(Scarinci Hollenbeck, attorneys)
Record Closed: February 10, 2021 	Decided: February 18, 2021
BEFORE GAIL M. COOKSON, ALJ:
STATEMENT OF THE CASE
W.B. and D.B. (petitioners) appeal the Board of Education for the Township of
Wayne’s (Board) determination that their son, B.B., is not entitled to attend Wayne
Valley High School because he is not residing within that attendance zone. 	Petitioners

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claim their move from that attendance zone, albeit still within Wayne Township, was due
to a hardship and has caused their son anxiety in addition to his learning issues.
The Board notified petitioners of its determination on May 11, 2020. [J-8.] 	They
filed their petition of appeal directly with the Commissioner of Education on May 20,
2020. 	The Board filed its answer on June 10, 2020, and the matter was then
transmitted to the Office of Administrative Law for determination as a contested case on
June 17, 2020. 	The matter was assigned to me on or about July 17, 2020. 	Several
case management conferences have been held in order to allow the parties to review
new information. 	Thereafter, the hearing was scheduled and held on February 10,
2021, through the use of Zoom remote technology because of the continued New
Jersey State of Emergency for the coronavirus pandemic. 	Insofar as the petitioners
were not represented by counsel and the case was presented thoroughly by both sides,
I determined that I did not need post-hearing submissions and I closed the record at the
end of the hearing.
FINDINGS OF FACT
Based 	upon 	due 	consideration 	of 	the 	pleadings 	and 	the 	testimonial 	and
documentary evidence presented, and having had the opportunity to observe the
demeanor of the witnesses and assess their credibility, I FIND the following facts:
Petitioners testified on their own and their son’s behalf. 	They opened their case
by remarking as to how proud they are of the progress B.B. has made in the Wayne
school system and how amazing the teachers have been working with his Individualized
Education Plan (IEP). 	B.B. is classified as having a specific learning disability and has
needed some reading and test-taking accommodations. 	His grades have improved, he
has a good group of friends as a support network with whom he has attended school for
many years, and intends to proceed to college.
In January 2019, petitioners faced a hardship that required them to move from
their home. 	They relocated to a residence inn for almost nine months, which further

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stressed their financial situation, so that B.B. could remain in his school. 	They then
moved to an apartment, but it was on the other side of Wayne. 	They tried very hard to
find an apartment within the same “attendance zone” as their house had been located
but having a dog made finding such difficult, if not impossible. 	As a result, B.B. was
technically within the attendance zone for Wayne Hills instead of Wayne Valley, but he
was refusing to attend and was showing signs of anxiety. Prior to the start of the 2019-
2020 school year, petitioners requested the Board to allow B.B. to remain for his eighth-
grade year at the Wayne Valley middle school. [J-3.] The Board approved this request
so that B.B. could complete middle school where he had always attended. [J-4.]
As was true for most students, B.B. began to engage in remote learning once the
Covid pandemic emergency spread over New Jersey. 	Learning then was conducted
under the hybrid model. 	In the spring of 2020, petitioners anticipated their son’s entry
into high school in the fall and extended their request that he be permitted to remain
with his friends from his former neighborhood and attendance zone. [J-5.] At that time,
their request was denied (J-6), on the basis of the Board’s Policy #5120. 	At the same
time that petitioners continued to argue in favor of an exception being made for B.B., as
they viewed many others having been afforded that right, they also made the difficult
decision to split up the household. 	D.B. had a girlfriend who offered her and B.B. a
place to stay within the Wayne Valley attendance zone, while W.B. and their dog
remained in the apartment they had all moved into earlier in the year. 	Petitioners also
testified that it had been suggested that they take B.B. to a psychiatrist to assist him
with the difficult adjustment, but they did not do so.
On cross examination, petitioners acknowledged that D.B. and B.B. will stay
living and sharing expenses with her girlfriend if that is what is required so that B.B. can
attend the high school he prefers. 	They also acknowledged that his IEP could be
implemented at either high school and that he does not require special services only
available at Wayne Valley. 	W.B. wanted the record to reflect his disappointment that
the Superintendent, Dr. Toback with whom he had had a personal conversation and
who 	promised 	that 	he 	would 	personally 	follow-up, 	never 	did 	return 	those
communications.

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Donna Reichman testified on behalf of the Board. 	She has been an employee
with the Wayne district for seventeen years as a teacher, principal, and now Assistant
Superintendent. 	Reichman reviewed the history of the petitioners’ requests and the
Board’s responses, that were largely delegated to her, especially after Covid when
everyone 	was 	overwhelmed 	with 	the 	“new normal” 	and 	an 	excessive 	number 	of
personal requests by staff and pupils. She further stated that petitioners’ request in May
2020 contained the argument that B.B. had always looked forward to playing football for
Wayne Valley High School, which by state athletic standards, could not be taken into
consideration.
With respect to other reasons provided by petitioners, Reichman explained that
Policy #5120 supported the Board’s decision to grant the request for eighth grade
because it prevents disruption in one’s last year before a graduation and also supported
the denial for B.B.’s freshman year of high school. 	Policy #5120 specifically, and in
pertinent part, states:
Pupils 	shall 	generally 	attend 	the 	school 	located 	in 	the
attendance area of their residence. The Superintendent may
assign a pupil to a school other than that designated by the
attendance area when such an exception is justified by
circumstances and/or is in the best interests of the pupil.
Reichman focused on the fact that either high school within Wayne could implement
B.B.’s IEP and that it was clear that he could succeed at either. She also noted that the
middle school he attended was the only one in the district to have a mix of kids from the
two high school attendance zones such that some of his friends might also be heading
to Wayne Hills.
When 	questioned 	about 	the 	frequency 	with 	which 	the 	Board 	has 	granted
exceptions under Policy #5120, Reichman stated that out of a student population of
over 2400, there had been approximately three who were granted it because they were
in their final year and three who were granted it because of IEP implementation issues.
On cross-examination, she estimated that forty students make these requests a year.

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The policy is applied mostly to pupils who are medically fragile or severely disabled.
With respect to relocations, she agreed that no one wants to see a student go to two
different schools within two months. 	Reichman also assured petitioners that if new
information became available, such as a current psychiatric evaluation, that it would be
considered.
ANALYSIS AND CONCLUSIONS OF LAW
The issue in this matter is whether B.B. was entitled to attend Wayne Valley High
School, notwithstanding that 	his parents moved 	out 	of 	that 	attendance 	zone 	but
remained within the Township.
Generally speaking, domicile is the place of a person’s abode where he or she
has the present intention of remaining and to which, if absent, he or she intends to
return. Mercadante v. City of Paterson, 111 N.J. Super. 35, 39 (Ch. Div. 1970), aff’d, 58
N.J. 112 (1971). 	A person may have multiple residences, but only one domicile at a
time; as such, the residence may coincide with domicile, but does not alone determine
domicile. 	State v. Benny, 20 N.J. 238, 251 (1955). 	The question of domicile is one of
fact and must be determined on a case-by-case basis. Lea v. Lea, 18 N.J. 1, 7 (1955).
In the present matter, there is evidence that petitioners established themselves in
the Wayne Hills attendance zone prior to B.B.’s last year in middle school and before
the commencement of high school. Thereafter, the petitioners purposely separated, not
for marital reasons, but in order to re-establish B.B. in the Wayne Valley attendance
zone, with D.B. and B.B. moving in with a friend. They seek a determination herein that
the Board should exercise its discretion under its Policy #5120 to allow B.B. to attend
Wayne Valley even if they reunite the family at the current residence of W.B. outside
that zone.
As set forth above, Policy #5120 states:

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Pupils 	shall 	generally 	attend 	the 	school 	located 	in 	the
attendance area of their residence. The Superintendent may
assign a pupil to a school other than that designated by the
attendance area when such an exception is justified by
circumstances and/or is in the best interests of the pupil.
[J-2.]
Based on the preponderance of the credible facts, I CONCLUDE that B.B. is
residing in the attendance zone of Wayne Valley High School only so long as he and a
parent reside in that zone. I further CONCLUDE that the Board has properly applied its
Policy #5120 and did so herein in a fair, reasonable, and nonarbitrary manner. 	The
evidence clearly demonstrates that the Board has applied Policy #5120 in an even-
handed manner in general and specifically for B.B. 	In his last year of middle school,
B.B. was permitted to finish school in the Wayne Valley attendance zone, as it typically
did for pupils in their last year at a school. The Board also carefully considered whether
attendance at Wayne Valley High School was required in the best interests of the pupil
and determined that B.B. could obtain all the services he needs at either high school,
and at either, he would be entering his first year and was likely to succeed.
I 	CONCLUDE 	that 	the 	Board 	was 	correct 	in 	deciding 	that 	petitioners’
circumstances do not come within the school assignment policy exceptions. 	If the
family choses to reside as an entire family unit in the current apartment of W.B., B.B.
will be required to attend Wayne Hills High School. 	I recognize that economic or other
hardships which befall parents often have unintended consequences for their child(ren).
Nevertheless, these events happen in life and we all have to adjust within the system
that governs all similarly situated pupils.
ORDER
Based upon the foregoing, it is ORDERED that the petition of appeal of W.B. and
D.B. on behalf of B.B. should be and is hereby DISMISSED.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.

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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.
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. of any exceptions must be sent to the judge and to
the other parties.
February 18, 2021
DATE 	GAIL M. COOKSON, ALJ
Date Received at Agency: 	2/18/21
Date Mailed to Parties: 	2/18/21
id

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APPENDIX
WITNESSES
For Petitioner:
W.B.
D.B.
For Respondent:
Donna Reichman
LIST OF EXHIBITS IN EVIDENCE
Joint Exhibits:
J-1 	B.B. Individualized Education Plan, dated February 4, 2020
J-2 	Wayne Township Board of Education District Policy #5120
J-3 	Letter to Donna Reichman from petitioners, dated August 31, 2019
J-4 	Letter to petitioners from Donna Reichman, dated September 4, 2019
J-5 	Letter to Dr. Mark Toback from petitioners, dated February 20, 2020
J-6 	Letter to petitioners from Donna Reichman, dated February 25, 2020
J-7 	Letter to Dr. Mark Toback from petitioners, dated May 1, 2020
J-8 	Letter to petitioners from Donna Reichman, dated May 11, 2020
J-9 	Residency documents of petitioners
J-10 	Email exchanges between petitioners and Board, various dates
For Petitioner:
None.
For Respondent:
None.