C.D., on behalf of minor children, A.V. and O.V. v. Board of Education of the Borough of South River, Middlesex County, 1/16/26 (#18-26E)

18-26E
OAL Dkt. No. EDU 21086-25
Agency Dkt. No. 416-12/25
New Jersey Commissioner of Education
Order on Emergent Relief
C.D., on behalf of minor children, A.V. and O.V.,
Petitioner,
v.
Board of Education of the Borough of South River,
Middlesex County,
Respondent.
The record of this emergent matter, the sound recording of the hearing held at the Office of
Administrative Law (OAL), and the recommended Order of the Administrative Law Judge (ALJ) have been
reviewed and considered.
Upon review, the Commissioner concurs with the ALJ that petitioner has failed to demonstrate
entitlement to emergent relief pursuant to the standards enunciated in Crowe v. DeGioia, 90 N.J. 126,
132-34 (1982), and codified at N.J.A.C. 6A:3-1.6.
Accordingly, the recommended Order denying petitioner’s application for emergent relief is
adopted. This matter shall continue at the OAL with such proceedings as the parties and the ALJ deem
necessary to bring it to closure.
IT IS SO ORDERED.
COMMISSIONER OF EDUCATION
Date of Decision: 	January 16, 2026
Date of Mailing: 	January 20, 2026

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
ORDER
DENYING EMERGENT RELIEF
OAL DKT. NO. EDU 21086-25
AGENCY DKT. NO. 416-12/25
C.D., ON BEHALF OF MINOR CHILDREN, A.V. AND
O.V.,
Petitioner,
v.
BOARD OF EDUCATION OF THE BOROUGH
OF SOUTH RIVER, MIDDLESEX COUNTY,
Respondent.
______________________________________
C.D., petitioner, pro se
Christopher B. Parton, Esq., for respondent (Kenney, Gross, Kovats & Parton,
attorneys)
BEFORE JOAN M. BURKE, ALJ:
STATEMENT OF THE CASE
Petitioner C.D. is the parent of A.V. and O.V. After a residency investigation it was
determined by respondent Board of Education of the Borough of South River (Board) that
the two minor children are not domiciled in South River. O.V. is three years old and
attended the preschool program in the district. O.V. was removed from the program. A.V.

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2
is a kindergarten student and he continues to attend school in the district. Petitioner
challenges the Board of Education’s residency determination.
Petitioner seeks emergent relief regarding the continued attendance of O.V. at the
preschool program in the district.
PROCEDURAL HISTORY
On November 12, 2025, respondent conducted a hearing and found that A.V. and
O.V. were not domiciled in South River. On November 13, 2025, petitioner was notified.
O.V. was removed from the preschool program while A.V. continued in his kindergarten
class. On December 10, 2025, the Department of Education, Office of Controversies and
Disputes, transmitted this case to the Office of Administrative Law (OAL) for hearing as
to the resolution of petitioner’s motion for emergency relief. The merits of the underlying
petition are to be addressed once the motion for emergent relief is heard and decided.
DISCUSSION AND FINDINGS OF FACT
The only issue to be determined in petitioner’s application for emergent relief is the
removal of O.V. from the preschool program. Petitioner argues that O.V.’s removal will
result in immediate harm because he has built strong relationships with his teachers and
peers and is thriving socially and academically. She argues that the legal right underlying
the claim is settled because students are entitled to a stable and uninterrupted
educational environment. Petitioner also stated that they will succeed on the merits
because O.V. is already enrolled, attending, and successfully integrated into his
preschool program. Petitioner further posits that, on balance, the hardship on O.V. far
outweighs the hardship on the district.
The Board responds that petitioner cannot and does not meet the standard for
emergent relief. The Board argues that it is its discretionary determination to have a
preschool program for students between three and five years old. The Board further
argues that preschool programs are not mandatory in New Jersey. New Jersey
Constitution, Article VIII, Section 4, par. 1, expressly limits the right to a thorough, efficient,

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3
and free education to all children in the state between five and eighteen years of age.
Respondent further argues that O.V. is three years old. He was born May 28, 2022, and
will be five years old “seventeen months from now,” in May 2027. O.V. is not classified
as being entitled to special education and related services. The Board further states:
As a matter of constitutional law, he is not entitled to a free
and public education in New Jersey. By state law, he is not
entitled to admission into the South River School District. And
under controlling NJDOE regulation, the residency appeal
procedures are not available to him. See, respectively, N.J.
Const. Art. VIII, §4,11; N.J.S.A. 18A:38-l; N.J.A.C. 6A:22-
l.l(b).
[Resp’t’s Br. in Opposition to Emergent Relief.]
Respondent further argues:
There is no right to an education, in South River or
elsewhere, in this matter. There is no settled legal support
for this student, at three years old, to require a school
district to admit or educate him. There is certainly no
objective likelihood of success on the merits of the
matter—in fact the highest legal authority in New Jersey
specifically excludes a three-year-old from the entitlement,
relief, and even the process which Petitioner seeks.
[Ibid.]
On December 19, 2025, I heard oral argument on the motion for emergent relief.
DISCUSSION AND CONCLUSIONS OF LAW
Under N.J.S.A. 18A:6-9, the Commissioner’s jurisdiction is defined, and is limited
to “controversies and disputes arising under the school laws.” In Dunellen Board of
Education v. Dunellen Education Association, 64 N.J. 17, 23 (1973), the New Jersey
Supreme Court concluded that “the Legislature enacted provisions entrusting school
supervision and management to local school boards . . . subject to the supervisory control
[of] . . . the State Commissioner of Education.”

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4
The regulations governing such disputes before the Commissioner of Education
provide that “[w]here the subject matter of the controversy is a particular course of action
by a district board of education or any other party subject to the jurisdiction of the
Commissioner, the petitioner may include with the petition of appeal, a separate motion
for emergent relief or a stay of that action pending the Commissioner’s final decision in
the contested case.” N.J.A.C. 6A:3-1.6(a). The regulations further provide that the
Commissioner may “[t]ransmit the motion to the OAL for immediate hearing on the
motion.” N.J.A.C. 6A:3-1.6(c)(3).
N.J.A.C. 6A:3-1.6(b) sets forth the standards governing motions for emergent relief
and instructs:
A motion for a stay or emergent relief shall be accompanied
by a letter memorandum or brief which shall address the
following standards to be met for granting such relief pursuant
to Crowe v. DeGioia, 90 N.J. 126 (1982):
1. The petitioner will suffer irreparable harm if the
requested relief is not granted;
2. The legal right underlying petitioner’s claim is
settled;
3. The petitioner has a likelihood of prevailing on
the merits of the underlying claim; and
4. When the equities and interests of the parties
are balanced, the petitioner will suffer greater harm
than the respondent will suffer if the requested relief is
not granted.
Indeed, the moving party must demonstrate each element “clearly and
convincingly.” Waste Mgmt. of N.J. v. Union Cnty. Utils. Auth., 399 N.J. Super. 508, 520
(App. Div. 2008). Emergent relief is designed “to ‘prevent some threatening, irreparable
mischief, which should be averted until opportunity is afforded for a full and deliberate
investigation of the case.’” Crowe, 90 N.J. at 132 (citation omitted).

OAL DKT. NO. EDU 21086-25
5
Irreparable Harm
Harm is generally considered irreparable if monetary damages cannot adequately
redress it. Id. at 132–33. In other words, irreparable harm is described as “‘substantial
injury to a material degree coupled with the inadequacy of money damages.’” Judice’s
Sunshine Pontiac, Inc. v. General Motors Corp., 418 F. Supp. 1212, 1218 (D.N.J. 1976)
(citation omitted). A claimant must demonstrate more than a risk of irreparable harm.
Continental Group, Inc. v. Amoco Chems. Corp., 614 F.2d 351, 359 (3d Cir. 1980). The
requisite for injunctive relief requires a “‘clear showing of immediate irreparable injury,’”
or a “‘presently existing actual threat; (an injunction) may not be used simply to eliminate
a possibility of a remote future injury, or a future invasion of rights, be those rights
protected by statute or by the common law.’” Ibid. (citation omitted).
Petitioner submits that O.V. will suffer immediate and irreparable harm. Petitioner
asserts that preschool children require stability and a consistent environment to succeed.
Because O.V. has built strong relationships with his teachers and peers and is doing well,
removing him mid-year will disrupt his routine, emotional well-being, and developmental
progress.
In response, the Board argues that petitioner has not satisfied her burden of proof
regarding irreparable harm by clear and convincing evidence. Specifically, the Board
argues that monetary relief is available. South River’s is not the only available preschool
program in Middlesex County. The program is free for bonafide residents of South River.
In addition, the program is not so unique that its absence would constitute irreparable
harm, or so unique as to warrant ignorance of constitutional and statutory parameters.
I agree with the Board’s argument, and I CONCLUDE that petitioner has not
satisfied her burden as to irreparable harm. Emergent relief “should not be entered except
when necessary to prevent substantial, immediate and irreparable harm.” Subcarrier
Commc’ns, Inc. v. Day, 299 N.J. Super. 634, 638 (App. Div. 1997).

OAL DKT. NO. EDU 21086-25
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Settled Legal Right
Emergent relief “should be withheld when the legal right underlying plaintiff’s claim
is unsettled.” Crowe, 90 N.J. at 133 (citing Citizens Coach Co. v. Camden H. R. Co., 29
N.J. Eq. 299, 304–05 (E. & A .1878)).
Each school district is obligated to provide a thorough and efficient education
system to all children residing in its school district. N.J. Const. art. VIII, § 4, ¶ 1. To carry
out this policy, local boards of education have discretionary authority under N.J.S.A.
18A:11-1(c). The boards adopt rules for the management of the district’s public schools
and act in a manner to ensure the lawful and proper conduct of the district’s public
schools. This Board cites the applicable policy, which states that “[p]ublic school shall be
free to the following persons over five and under 20 years of age . . . .” N.J.S.A. 18A:38-
1. O.V. is only three years old, and thus is not at the age where the district is obligated
to provide him with free public education.
I therefore CONCLUDE that petitioner has not met her burden of establishing that the
legal right underlying her claim is settled.
Likelihood of Success on the Merits
Under the third emergent-relief standard, “a plaintiff must make a preliminary
showing of a reasonable probability of ultimate success on the merits.” Crowe, 90 N.J.
at 133 (citing Ideal Laundry Co. v. Gugliemone, 107 N.J. Eq. 108, 115–16 (E. & A. 1930)).
This requirement is often implicitly tied to whether the right to the underlying claim is
settled.
A presumption of lawfulness and good faith applies to a board of education’s
actions. In challenges to board actions, the challenger bears the burden of proving that
such acts were unlawful, arbitrary, capricious, or unreasonable. Schuster v. Bd. of Educ.
of Montgomery Twp., 96 N.J.A.R.2d (EDU) 670, 676 (citing Schnick v. Westwood Ed. of
Educ., 60 N.J. Super. 448 (App. Div. 1960), and Quinlan v. Bd. of Educ. of North Bergen
Twp., 73 N.J. Super. 40 (App. Div. 1962)).

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The “arbitrary, capricious and unreasonable” standard of review imposes a heavy
burden on challengers of board actions, and “means having no rational basis.” Piccoli v.
Bd. of Educ. of Ramapo Indian Hills Reg’l Sch. Dist., 1999 N.J. AGEN LEXIS 20, Initial
Decision (January 22, 1999), adopted, 1999 N.J. AGEN LEXIS 1314 (March 10, 1999)
(citing Bayshore Sewage Co. v. Dep’t of Envtl. Protection, 122 N.J. Super. 184, 199–200
(Ch. Div. 1973), aff’d, 131 N.J. Super. 37 (App. Div. 1974)).
In support of her argument, petitioner states that O.V. is already enrolled in the
preschool program. She asserts that his family resides in South River, which established
the district as their rightful place of residence. Removing a child from an established
placement without considering developmental harm is inconsistent with both educational
best practices and administrative fairness.
The issue of residency is in dispute and will be determined at a plenary hearing.
The petitioner has not cited any regulations to support her position or that the district’s
action was “arbitrary, capricious or unreasonable.” Under the circumstances and prior to a
full hearing, petitioner has not demonstrated a likelihood of prevailing on the merits of her claim.
Therefore, I CONCLUDE that petitioner does not meet the third prong of the
emergent-relief standard.
Balancing of the Equities
Lastly, petitioner fails to meet the fourth emergent-relief standard, which involves
“the relative hardship to the parties in granting or denying relief.” Crowe, 90 N.J. at 134
(citing Isolantite, Inc. v. United Elect. Radio & Mach. Workers, 130 N.J. Eq. 506, 515 (Ch.
1941), mod. on other grounds, 132 N.J. Eq. 613 (E. & A. 1942)). To satisfy this standard,
petitioner must demonstrate that she will suffer more significant harm than the Board if
this tribunal does not grant the requested relief. Petitioner argues that O.V. will suffer
emotional distress, developmental regression, social disruption, and loss of educational
continuity. This is a speculative assertion, at best.

OAL DKT. NO. EDU 21086-25
8
Respondent argues that the preschool program is popular in the district. To allow
O.V., who has been found to not be domiciled in the district or whose residency is at
issue, to attend preschool in the district while other South River residents’ children are
wait-listed for the program is patently unfair. I CONCLUDE that respondent would suffer
greater harm if the requested relief were granted.
Therefore, for all of the foregoing reasons, I CONCLUDE that petitioner has not
demonstrated entitlement to the emergent relief requested, since she has not satisfied
any of the four prongs of the test.
ORDER
It is ORDERED that petitioner’s application for emergent relief is DENIED. This
matter will continue to a plenary hearing scheduled for January 15, 2025, to address the
merits of the underlying petition.

OAL DKT. NO. EDU 21086-25
9
This Order on application for emergency relief may be adopted, modified, or
rejected by the Commissioner of Education, who by law is authorized to make a final
decision in this matter. The final decision on the application for emergent relief shall be
issued without undue delay, but no later than forty-five (45) days following the entry of
this Order. If the Commissioner of Education does not adopt, modify, or reject this Order
within forty-five days, this recommended order shall become a final decision on the issue
of emergent relief in accordance with N.J.S.A. 52:14B-10.
December 22, 2025
DATE JOAN M. BURKE, ALJ
Date Received at Agency:
Date Mailed to Parties:
JMB/sb/jm
c: Clerk OAL-T

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APPENDIX
Exhibits
For petitioner
P-1 Petitioner’s submission accompanying the emergent appeal
P-2 Response letter addressing the emergent-relief factors pursuant to Crowe
v. DeGioia, 90 N.J. 126 (1982)
For respondent
R-1 Respondent’s December 17, 2025, Brief in Opposition to the Application for
Emergent Relief