Tristin Goode, Doreen Blanchard-Gliebe; D.G., on behalf of minor child N.G.; T.A., on behalf of minor children, C.A., C.A., C.A., G.A., C.A., and T.A. and L.V., on behalf of minor children, E.V., K.V. and D.V. v. Board of Education of the Watchung Hills Regional School District, Somerset County, 12/13/2021, (#327-21)

327-21
New Jersey Commissioner of Education
Final Decision
Tristin Goode, Doreen Blanchard-Gliebe; D.G., on
behalf of minor child N.G.; T.A., on behalf of minor
children, C.A., C.A., C.A., G.A., C.A., and T.A. and
L.V., on behalf of minor children, E.V., K.V. and
D.V.,
Petitioners,
v.
Board of Education of the Watchung Hills Regional
School District, Somerset County,
Respondent.
Synopsis
Petitioning parents alleged that the respondent Board violated N.J.S.A. 18A:33-1, which requires school
districts to provide “courses of study suited to the ages and attainments of all pupils,” by approving a
twelfth-grade curriculum that includes as optional reading a book entitled Fun Home: A Family
Tragicomic (Fun Home). Petitioners contended that the book contains obscene, age-inappropriate
material that is ill-suited for the school curriculum. The Board filed a motion to dismiss the petition in
lieu of filing an answer, arguing that the petition is time-barred pursuant to N.J.A.C. 6A:3-1.3(i) which
requires petitions to be filed no later than 90 days from the date of the relevant Board decision.
The ALJ found, inter alia, that: pursuant to N.J.A.C. 6A:3-1.3(i), a petition must be filed no later than the
90th day from the date of receipt of the notice of a final order or action that is the subject of the appeal;
the “90 day rule” may only be relaxed in cases where strict adherence to the rule would be
inappropriate or result in an injustice, or if there is a substantial constitutional issue involved; in the
instant case, petitioners argued that they did not know that they could file an appeal with the
Commissioner until they received the Superior Court’s June 10, 2019 order dismissing their complaint
which sought to enjoin the Board from violating criminal statute N.J.S.A. 2C:34-3 by “distributing to
minors” the “obscene and pornographic” Fun Home, yet they subsequently failed to file the within
petition until nearly six months later, on December 6, 2019; and it is unclear how exactly Fun Home’s
placement in a twelfth-grade curriculum as an optional assignment violates the thorough-and-efficient-
education clause of the New Jersey constitution and thus rises to the level of a “substantial
constitutional issue” that would override the ninety-day rule. Accordingly, the ALJ concluded that
petitioners failed to file a timely appeal and consequently declined to address any substantive issues in
this matter.
The Commissioner concurred with the ALJ’s determinations herein and adopted the Initial Decision of
the OAL as the final decision in this case. 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.

OAL Dkt. No. EDU 00592-20
Agency Dkt. No. 314-12/19
New Jersey Commissioner of Education
Decision
Tristin Goode, Doreen Blanchard-Gliebe; D.G., on
behalf of minor child N.G.; T.A., on behalf of minor
children, C.A., C.A., C.A., G.A., C.A., and T.A. and
L.V., on behalf of minor children, E.V., K.V. and
D.V.,
Petitioners,
v.
Board of Education of the Watchung Hills Regional
School District, Somerset 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 such review, the Commissioner concurs with
the Administrative Law Judge that the petition should be dismissed because it was filed outside of the
90-day limitation period set forth in N.J.A.C. 6A:3-1.3(i). Accordingly, the Initial Decision of the OAL is
adopted as the final decision in this matter for the reasons stated therein, and the petition of appeal is
hereby dismissed.
IT IS SO ORDERED. 1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
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.
327-21
December 13, 2021
December 14, 2021

New Jersey is an Equal Opportunity Employer
INITIAL DECISION GRANTING
MOTION FOR SUMMARY
DECISION
OAL DKT. NO. EDU 00592-20
AGENCY DKT. 314-12/19
TRISTIN GOODE;
DOREEN BLANCHARD-GLIEBE;
D.G. ON BEHALF OF MINOR CHILD N.G.;
T.A. ON BEHALF OF MINOR CHILDREN C.A.,
C.A., C.A., G.A., C.A., AND T.A.; AND
L.V. ON BEHALF OF MINOR CHILDREN E.V., K.V., AND D.V.,
Petitioners,
v.
BOARD OF EDUCATION,
WATCHUNG HILLS REGIONAL SCHOOL DISTRICT,
SOMERSET COUNTY,
Respondent.
Demetrios K. Stratis, Esq., appearing for petitioners Tristin Goode; Doreen
Blanchard-Gliebe; D.G. on behalf of minor child N.G.; T.A. on behalf of
minor children C.A., C.A., C.A., G.A., C.A., and T.A.; and L.V. on behalf of
minor children E.V., K.V., and D.V. (Ruta, Soulios & Stratis, attorneys)
Erik Harrison, Esq., appearing for respondent Board of Education, Watchung Hills
Regional School District (Methfessel & Werbel, attorneys)

OAL DKT. NO. EDU 00592-20
2
Record Closed: December 7, 2020 Decided: November 5, 2021
BEFORE SUSAN M. SCAROLA, ALJ:
STATEMENT OF THE CASE
The petitioners, five individual parents of children who attend or attended school
in the Watchung Hills Regional School District,1 allege that the respondent, the Board of
Education of the Watchung Hills Regional School District (Board), violated N.J.S.A.
18A:33-1, which requires school districts to provide “courses of study suited to the ages
and attainments of all pupils,” by approving a twelfth-grade curriculum that includes as
optional reading Alison Bechdel’s graphic memoir entitled Fun Home: A Family
Tragicomic (Fun Home), which includes comic illustrations and in which the author
chronicles her early struggles with her sexual identity as a lesbian and her complicated
relationship with her gay father. According to petitioners, the book contains obscene,
age-inappropriate material that is ill-suited for the curriculum.
In response, the Board has moved to dismiss the petition in lieu of filing an answer
on the basis that petitioners failed to file their challenge within ninety days of the relevant
Board decision, as required by N.J.A.C. 6A:3-1.3(i).
PROCEDURAL HISTORY
On December 6, 2019, the petition was filed with Commissioner of the Department
of Education. The District responded by filing a motion to dismiss in lieu of an answer,
contending that because the petitioners had failed to file their petition within the ninety-day
limitation required under N.J.A.C. 6A:3-1.3(i), dismissal was required.
The matter was transmitted to the Office of Administrative Law, where it was filed
as a contested case on January 13, 2019 [sic, 2020]. N.J.S.A. 52:14B-1 to -15; N.J.S.A.
1 The petitioners are Tristin Goode and Doreen Blanchard, individually; D.G., on behalf of her child N.G.;
T.A. on behalf of her six children; and L.V. on behalf of her three children.

OAL DKT. NO. EDU 00592-20
3
52:14F-1 to -13. On June 19, 2020, the petitioners filed a response to the motion in which
they contend that the petition is not time barred, and that even if the time limits had been
exceeded, the issue is of such importance that the rule should be relaxed to permit the
matter to go forward. Supplemental responses were received from the parties on
December 2, December 4, and December 7, 2020, when the record closed.2
STATEMENT OF FACTS3
On November 7, 2017, the Board ostensibly approved a revised curriculum
resolution that added Fun Home to the twelfth-grade English curriculum. Board Ex. E.
While it may be accurate to say that the Board did, in fact, resolve to add Fun Home to
the curriculum at that meeting, the meeting minutes provided by the Board in support of
its motion to dismiss simply state “RESOLVED, the Board of Education approves the
curriculum for the courses as per the attached list”; however, there is no list attached to
the minutes, and the Board has not otherwise submitted a list showing that Fun Home
was added to the curriculum at its November 7, 2017, meeting. Ibid.
Nonetheless, it is not disputed that the Board distributed Fun Home to certain
students in spring 2018. At the Board’s May 22, 2018, meeting, several parents voiced
their concern about sexually explicit material contained in the book. Board Ex. F. One
parent asked the Board and the district’s superintendent about the process to remove the
book from the curriculum. Ibid. In response, the Board’s president, Peter Fallon, stated,
“[w]e don’t have that set out in a particular policy,” but encouraged the parent to come to
the next Board meeting, if, after speaking with certain district personnel, the parent’s
concerns were not allayed. Petitioners’ Ex. B. The district’s superintendent, Elizabeth
Jewett, advised, “if you do not want your child to participate in a certain part of the
curriculum, we have a process for that.” Ibid.
At the next Board meeting on June 5, 2018, the Board again allowed for public
comment on the inclusion of Fun Home in the curriculum. Board Ex. G. Prior to public
2 This decision was delayed in filing by a personal extended medical emergency and the COVID-19
pandemic.
3 The facts are gleaned from the exhibits of both parties.

OAL DKT. NO. EDU 00592-20
4
comment, Mr. Fallon and Ms. Jewett made statements regarding Fun Home. Ibid.
Mr. Fallon acknowledged that the Board had recently received many emails and phone
calls from parents about the book. Ibid. He explained that Fun Home was added to the
curriculum as part of a five-year strategic plan that the Board had implemented in part to
“enhance the social and emotional wellness of all students within a compassionate
learning community.” Ibid.
He clarified that Fun Home was optional reading, such that if students “are
uncomfortable with the content or the images in the book, they can opt out of reading the
book and another book will be assigned.” Ibid. He also stated, “approval of the curriculum
for the next school year is not on our Meeting Agenda for tonight.” Ibid. He surmised that
“[i]t is possible that after listening to your comments tonight some Board members may
want to revisit that and discuss whether or not the current curriculum—which does include
[Fun Home]—should be revised,” but he also advised that absent such revision by the
Board, “the next time this will be considered would likely be next January, when the Board
typically is asked to approve or disapprove of the entire curriculum.” Ibid.
Mr. Fallon directed “those of you who find the images [in the book] offensive” to
Board Policy No. 2240, which pertains to “Controversial Issues.” Ibid. That policy states
that “[a]ll complaints about instructional material directed to the [Board] must be in
writing,” and advises that the Board has the “ultimate responsibility to decide on the
educational materials to be used.” Petitioners’ Ex. E.
Ms. Jewett then gave a statement on the district’s reasoning for including the book
in the curriculum. Board Ex. E. She explained that “[w]e chose Fun Home to advance
our goals for thoughtful, contextualized literary reading and to expand the LGBTQ voices
in our curriculum.” Ibid.
Thereafter, several members of the public made comments, some in favor of the
book, but many in opposition to the inclusion of Fun Home in the curriculum. Ibid.
After public comment, Ms. Jewett announced that “the English supervisor will be
working with members of the English department this summer to select additional titles to

OAL DKT. NO. EDU 00592-20
5
add to the LGBTQ literature unit of study in addition to . . . Fun Home,” and that “[t]his will
allow students to have several options from which to choose one work to read during the
LGBTQ literature unit.” Ibid. She stated that she anticipated “the additional titles being
shared with the [Board’s] Education Committee in September and subsequently being
recommended to the full Board for approval at our September or early October board
meeting.” Ibid.
At its September 6, 2018, meeting, the Education Committee ultimately approved
the addition of two other books that students could choose if they did not want to read
Fun Home. Board Ex. K.
At a September 11, 2018, Board meeting, a parent presented the Board with a
petition signed by 650 parents and community members urging the Board to remove Fun
Home from the curriculum. Petitioners’ Ex. F.
On September 29, 2018, petitioner Tristin Goode emailed her concerns about Fun
Home to the Somerset County executive superintendent, Roger Jinks. Board Ex. L. She
asked that Mr. Jinks “address our concerns regarding the apparent criminal offense posed
by requiring this book to be read by students under age 18.” Ibid. She stated that “[a]n
expedited response is requested, since if this curriculum is approved at the next [Board]
meeting on October 2, 2018, the book will be included in the current Class of 2019
curriculum.” Ibid.
In response, Mr. Jinks stated, “[t]he selection of materials to implement the
curriculum is in the discretion of the school district,” and “[p]lease continue to share your
concerns with the board of education.” Ibid. He also advised Ms. Goode to “address this
[criminal] issue with your county prosecutor’s office.” Ibid.
On October 2, 2018, the Board approved the inclusion in the curriculum of Fun
Home and the two alternative books recommended by the Education Committee. Board
Ex. M.

OAL DKT. NO. EDU 00592-20
6
On May 3, 2019, several of the petitioners in this matter filed a verified complaint
against the Board in the New Jersey Superior Court, Chancery Division, seeking to enjoin
the Board from violating criminal statute N.J.S.A. 2C:34-3 by “distributing to minors” the
“obscene and pornographic” Fun Home. Board Ex. N. On June 10, 2019, the court
dismissed the complaint for several reasons, including the complainants’ failure to
exhaust their administrative remedies with the Commissioner of Education. Board Ex. O.
According to petitioners, “[i]n July and August 2019, the lawsuit participants,
following the order of the Court, worked with the staff of the Commissioner of Education
to set a date to meet with the Commissioner to have our dispute heard.” Petition, ¶ 13.
Petitioners met with staff on September 23, 2019, and “[t]hey then were made aware of
the procedure to follow to have the dispute formally heard by the Commissioner.” Ibid.
On December 6, 2019, petitioners filed with the Commissioner of Education this
petition seeking to remove Fun Home from the curriculum. On December 26, 2019, the
Board filed a brief in support of its motion to dismiss in lieu of an answer in accordance
with N.J.A.C. 6A:3-1.5(g).
According to the Board, the petition should be dismissed as untimely under
N.J.A.C. 6A:3-1.3(i), also known as the “ninety-day rule,” which requires a petitioner who
seeks to challenge a school board’s action to file a petition with the Commissioner of
Education “no later than the 90th day from the date of receipt of the notice of a final order,
ruling, or other action by the district board of education.” The Board argues that the
December 6, 2019, petition should be dismissed because the petitioners failed to file their
petition within ninety days of the Board’s initial decision to add Fun Home to the curriculum
on November 7, 2017, or within ninety days of the Board’s decision on October 2, 2018,
to revise the curriculum to add two other books from which students could choose to read
instead of Fun Home.
The Board alternatively argues that good cause does not exist to relax the
ninety-day rule, and questions the standing of several of the petitioners.

OAL DKT. NO. EDU 00592-20
7
In opposition to the Board’s motion, petitioners contend that the ninety-day rule
should be relaxed because this matter implicates significant questions of public interest
and constitutionality with respect to whether certain material in Fun Home is obscene and
the book should be removed from the curriculum. Petitioners further argue that the ninety-
day rule should not apply to this matter because the Board’s action in including the book
in the curriculum was not limited to certain votes taken in 2018, as the Board votes on the
curriculum on a yearly basis, and thus the repeated inclusion of Fun Home in the
curriculum “involves an ongoing violation” that should be subject to the Commissioner’s
review.
Petitioners also submit that the ninety-day rule should not apply here because the
Board misled petitioners by advising them of the incorrect policy for seeking removal of
the book from the curriculum. Specifically, the Board directed parents who wished to
have Fun Home removed from the curriculum to seek redress through Board Policy No.
2240, which pertains to “Controversial Issues”; however, the appropriate policy is No.
9130, “Public Complaints and Grievances,” which sets forth the procedure for “complaints
about instructional or resource materials” and for the Board’s determination of whether
“challenged material may be removed from the curriculum.” Petitioners’ Ex. D.
That policy further provides that, upon receipt of a written complaint, “[t]he
Superintendent shall appoint a committee of professional staff members and community
representatives to review the challenged material against the standards for the selection
of resource materials established by Board policy.” Ibid. The committee would then
report its findings to the Board and, if the Board ultimately decides not to remove
challenged material from the curriculum, “[a] complainant shall be notified that a decision
of the Board may be appealed to the Commissioner of Education.” Ibid. Petitioners argue
that the Board’s failure to advise them of this policy caused a delay in the filing of the
petition such that the ninety-day rule should be relaxed.
Finally, the parties dispute whether, even if the matter is not dismissed pursuant
to the ninety-day rule, the Board’s decision to include Fun Home in the curriculum was
arbitrary and capricious and in violation of N.J.S.A. 18A:33-1.

OAL DKT. NO. EDU 00592-20
8
LEGAL ANALYSIS AND CONCLUSION
Under the “rules of procedure for the filing of petitions with the Commissioner of
Education to hear and decide controversies and disputes arising under school laws,”
N.J.A.C. 6A:3-1.1 to -1.17, “[t]he petitioner shall file a petition no later than the 90th day
from the date of receipt of the notice of a final order, ruling, or other action by the district
board of education, individual party, or agency, that is the subject of the requested
contested case hearing.” N.J.A.C. 6A:3-1.3(i). The rules further provide that a
respondent may file a motion to dismiss in lieu of an answer to a petition. N.J.A.C. 6A:3-
1.5(g). Such motion may be made “on the grounds that the petitioner has advanced no
cause of action even if the petitioner's factual allegations are accepted as true or for lack
of jurisdiction, failure to prosecute or other good reason.” N.J.A.C. 6A:3-1.10.
Here, the Board has filed a motion to dismiss in lieu of an answer to the petition on
the grounds that the petition is untimely under the ninety-day rule, N.J.A.C. 6A:3-1.3(i).
As the Supreme Court has explained, the ninety-day rule serves the dual purposes of
(1) “stimulat[ing] litigants to pursue a right of action within a reasonable time so that the
opposing party may have a fair opportunity to defend, thus preventing the litigation of
stale claims” and (2) “penaliz[ing] dilatoriness and serv[ing] as a measure of repose by
giving security and stability to human affairs.” Kaprow v. Bd. of Educ. of Berkeley Twp.,
131 N.J. 572, 587 (1993) (citations and quotations omitted).
The ninety-day rule may be “relaxed or dispensed with . . . in any case where a
strict adherence thereto may be deemed inappropriate or unnecessary or may result in
injustice,” or if there is “the presence of a substantial constitutional issue or other issue of
fundamental public interest beyond that of concern only to the parties themselves.”
N.J.A.C. 6A:3-1.16; Balwierczak v. Bd. of Educ. of Berkeley Heights, 1999 N.J. AGEN
LEXIS 1367 (Dec. 8, 1999).
The ninety-day rule has been relaxed in several cases. For example, in
D’Alessandro v. Board of Education of Middletown, 1986 S.L.D. 2496, although a teacher
untimely filed his petition alleging that the school board had adopted a discriminatory
affirmative-action policy, the Commissioner relaxed the ninety-day rule “in the interest of

OAL DKT. NO. EDU 00592-20
9
justice” because “if the facts of this case are as petitioner alleges, then, potentially, the
situation could constitute a continuing violation . . . in permitting a potentially illegal
discriminatory practice to continue in perpetuity,” absent a review by the Commissioner.
Id. at 2514, 2515.
In Newark Teachers Union Local 481 v. State-Operated School District of Newark,
2016 N.J. AGEN LEXIS 502 (May 12, 2016), in a case involving the layoff of forty-six
attendance officers responsible for monitoring and locating truant students, the
Commissioner deemed relaxation of the ninety-day rule appropriate due to “the
importance of attendance.”
Lastly, in C.G. & R.G. ex rel. R.M.G. v. Board of Education of Brick, EDU 2375-05
(State Bd. of Educ. July 19, 2006), in which parents sought to challenge the grade their
child received in an English class, the State Board of Education relaxed the ninety-day
rule because the parents twice sought help from the Department of Education in filing an
appeal within the relevant limitations period but were given insufficient guidance.4
Here, there are two relevant Board actions for purposes of the ninety-day rule. The
first is the Board’s November 7, 2017, vote to add Fun Home to the curriculum; the second
is the Board’s October 2, 2018, decision to keep Fun Home in the curriculum, but to make
the book optional reading by offering two other books from which twelfth-grade students
could choose. Petitioners filed their petition on December 6, 2019, well more than ninety
days from either Board decision. However, the papers submitted in support of and in
opposition to the Board’s motion reveal that petitioners’ late filing was not entirely without
excuse.
First, the minutes from the November 7, 2017, meeting in which the Board added
Fun Home to the curriculum state that the Board approved “the curriculum for the courses
as per the attached list”; however, there is no list attached to the minutes, and the Board
has not otherwise submitted a list showing that the public was then put on notice that Fun
Home was added to the curriculum. As the Court stated in Kaprow, “[a]dequate notice”
4 This decision is available at https://www.nj.gov/education/legal/sboe/index.shtml.

OAL DKT. NO. EDU 00592-20
10
to trigger the ninety-day limitations period “must be sufficient to inform an individual of
some fact that he or she has a right to know and that the communicating party has a duty
to communicate.” Kaprow, 131 N.J. at 587. Because the November 7, 2017, meeting
minutes do not reflect that the public, including petitioners, were given adequate notice of
the Board’s decision to add Fun Home to the curriculum, the Board’s November 7, 2017,
decision cannot be said to have started the ninety-day clock to challenge the Board’s
decision and to seek the removal of the book from the curriculum.
Moreover, it appears from the record that the Board misinformed the public at
subsequent meetings of the proper procedure to use, and that this misinformation also
could have delayed the filing of the instant petition. Specifically, at the Board’s May 22,
2018, meeting, in response to a parent who asked how to pursue the removal of Fun
Home from the curriculum, Mr. Fallon, the Board president, stated, “[w]e don’t have that
set out in a particular policy,” and Ms. Jewett, the superintendent, advised, “if you do not
want your child to participate in a certain part of the curriculum, we have a process for
that.” Then, at the June 5, 2018, Board meeting, Mr. Fallon advised parents who objected
to Fun Home to seek redress under Board Policy No. 2240, “Controversial Issues,” which
states that “[a]ll complaints about instructional material directed to the [Board] must be in
writing,” and that the Board has the “ultimate responsibility to decide on the educational
materials to be used.”
However, as petitioners point out, it is Board Policy No. 9130, and not Board Policy
No. 2240, that sets out the procedure for seeking the removal of material from the
curriculum. Board Policy No. 9130, “Public Complaints and Grievances,” includes the
procedure for “complaints about instructional or resource materials” and for the Board’s
determination of whether “challenged material may be removed from the curriculum.”
That policy provides that, upon receipt of a written complaint, “[t]he Superintendent shall
appoint a committee of professional staff members and community representatives to
review the challenged material against the standards for the selection of resource
materials established by Board policy.” The committee would then report its findings to
the Board and, if the Board ultimately decided not to remove challenged material from the
curriculum, “[a] complainant shall be notified that a decision of the Board may be appealed
to the Commissioner of Education.”

OAL DKT. NO. EDU 00592-20
11
Petitioners’ argument that the Board caused a delay in the filing of this appeal by
directing the public, including petitioners, to Board Policy No. 2240, and not to Board
Policy No. 9130, has some merit. It seems clear that Board Policy No. 9130 governs the
removal of material from the curriculum, and the policy clearly states that at the end of
the process, the Board has an affirmative duty to notify a complainant that he or she may
appeal the Board’s decision not to remove material from the curriculum to the
Commissioner of Education. If Mr. Fallon had properly referred those who objected to
Fun Home to Board Policy No. 9130, and not Board Policy No. 2240, petitioners could
have filed a written complaint with the Board; the superintendent would have formed a
committee that included members of the public; and if the Board thereafter declined to
remove Fun Home, the Board would have had to inform any complainants of their appeal
rights. That certainly would have triggered the ninety-day limitations period. However,
because the Board misinformed the public about the relevance of that policy, the Board
is not without fault with respect to petitioners’ delayed filing.
The record further shows that one of the petitioners, Tristin Goode, sought redress
from the Somerset County executive county superintendent of schools Roger Jinks prior
to the Board’s October 2, 2018, meeting. The superintendent was asked to “address our
concerns regarding the apparent criminal offense posed by requiring this book to be read
by students under age 18.” In response, Mr. Jinks stated, “[t]he selection of materials to
implement the curriculum is in the discretion of the school district,” and “[p]lease continue
to share your concerns with the board of education.” He also advised Mr./Ms. Goode to
“address this [criminal] issue with your county prosecutor’s office.” Whether Mr. Jinks had
a duty or not, he did not inform Mr./Ms. Goode of the potential right to seek redress from
the Commissioner of Education if, at the October 2, 2018, meeting, the Board had
approved a curriculum including Fun Home. As in C.G., this interaction with Mr. Jinks
also could have delayed a filing of an appeal with the Commissioner, as Mr. Jinks advised
Mr./Ms. Goode to seek redress instead from a county prosecutor.
It appears that this was followed when Tristin Goode and others filed a verified
complaint in Superior Court, Chancery Division, on May 3, 2019, seeking to enjoin the
Board from violating criminal statute N.J.S.A. 2C:34-3 by “distributing to minors” the
“obscene and pornographic” Fun Home. However, on June 10, 2019, the court dismissed

OAL DKT. NO. EDU 00592-20
12
the complaint for several reasons, including the complainants’ failure to exhaust their
administrative remedies. In dismissing the complaint, the court stated that “the
Commissioner [of Education] has special expertise on matters regarding curriculum, and
what is or is not appropriate curricular material for 12th grade English students.”
However, even if the foregoing could serve as good cause to relax the ninety-day
rule, such that petitioners did not receive adequate notice of the Board’s initial decision
to add Fun Home to the curriculum; that they were misinformed of the proper procedure
to seek the removal of Fun Home under Board Policy No. 9130; that they were
misinformed by the executive county superintendent of their right to seek redress from
the Commissioner; and that they did not know that they could file an appeal with the
Commissioner until they received the court order dismissing their complaint on June 10,
2019, no reason has been presented as to why the petitioners waited until December 6,
2019, nearly six months after the court order, to file an appeal with the Commissioner.
Certainly, as a party to that judicial matter, the Board reasonably could have
expected petitioners to file an appeal with the Commissioner upon the dismissal of the
verified complaint. And if petitioners had done so within ninety days of June 10, 2019,
perhaps a stronger argument for relaxation could have been made.5 However, petitioners
still waited almost six months after the Superior Court order to file their petition. While
petitioners state that they first contacted the Commissioner about filing an appeal in July
or August 2019, there comes a point at which petitioners can no longer blame others for
their dilatoriness and must take required action on their own. To be sure, a simple internet
search would have directed petitioners to the Department of Education’s website, which
clearly sets forth the procedures for filing an appeal.6
As such, the ninety-day rule should not be relaxed or dispensed with since, under
these circumstances, strict adherence to the rule would not be inappropriate. The fact
5 The filing of a Superior Court action does not toll the ninety-day period for filing an appeal with the
Commissioner. Semprevivo v. Bd. of Educ. of the Pinelands Reg’l Sch. Dist., EDU 6386-09, Initial Decision
(Dec. 8, 2009), adopted, Comm’r (Jan. 15. 2010), available at https://njlaw.rutgers.edu/collections/oal.
However, given the misinformation received by petitioners from the Board and the executive county
superintendent, it may be considered that the petitioners’ delayed filing could have otherwise been excused.
6 See Controversies and Disputes, https://www.nj.gov/education/cd/faq.

OAL DKT. NO. EDU 00592-20
13
that one month after the filing of this petition the Board again voted to approve a
curriculum that included Fun Home also does not save the petition from dismissal as
untimely, nor can the Board’s continued approval of the book constitute an ongoing
violation. See N. Plainfield Educ. Ass’n v. Bd. of Educ. of N. Plainfield, 96 N.J. 587 (1984)
(holding that teachers who untimely filed an appeal regarding salary credit could not claim
that “the withholding of [an] increment constitute[d] a continuing violation” because “[s]uch
a claim, which is associated with the assertion of discrimination in employment, has no
relevance to this case”).
The ninety-day rule should also not be relaxed or dispensed with because, contrary
to petitioners’ arguments, this case does not involve a “substantial constitutional issue” or
a “fundamental public interest.” First, petitioners have failed to articulate how this matter
involves a “substantial constitutional issue.” Petitioners generally allege that the inclusion
of Fun Home in the curriculum conflicts with the thorough-and-efficient-education clause
of the State Constitution, such that “the 90-day rule should not be applied to prevent the
Commissioner from reviewing the suitability of this book in the high school classroom as
required in the fulfillment of his constitutional mandate.”7 Petitioners also argue that “the
90-day rule should be dispensed with in cases such as this where a school board has run
roughshod over parents’ rights to direct the education of their children and to protect them
from exposure to obscene and otherwise inappropriate material.”
To raise a constitutional claim, a party “must have suffered, or may presently
suffer, a direct impairment of his own constitutional rights.” Trombetta v. Mayor &
Comm’rs of Atl. City, 181 N.J. Super. 203, 222 (Law. Div. 1981). Petitioners have not
articulated how an optional book directly impairs their children’s constitutional right to a
thorough and efficient education or their right to make decisions regarding their children’s
upbringing. Petitioners argue that the inclusion of Fun Home in the curriculum somehow
offends the thorough-and-efficient-education clause because the book “is riddled with
numerous sexually explicit illustrations and narrative accounts and promotes adult
themes and erotic and other age-inappropriate literature throughout.” It is unclear how
7 Under the New Jersey State Constitution, the “Legislature shall provide for the maintenance and support
of a thorough and efficient system of free public schools for the instruction of all the children in the State
between the ages of five and eighteen years.” N.J. Const. art. VIII, § 4, ¶ 1.

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14
exactly Fun Home’s placement in a twelfth-grade curriculum as an optional assignment
violates the thorough-and-efficient clause and thus rises to the level of a “substantial
constitutional issue” that would override the ninety-day rule.
And while “the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and control
of their children,” there are “certain circumstances [in which] the parental right to control
the upbringing of a child must give way to a school’s ability to control curriculum and the
school environment.” Troxel v. Granville, 530 U.S. 57, 66 (2000); C.N. v. Ridgewood Bd.
of Educ., 430 F.3d 159, 182 (3d Cir. 2005).
In Smith v. Ricci, 89 N.J. 514 (1982), the New Jersey Supreme Court upheld a
State regulation that required local school boards “to develop and implement a family life
education program in the public elementary and secondary curricula.” Id. at 516. In that
case, a group of parents “contend[ed] that such a program impinges upon the free
exercise of their religion and constitutes an establishment of religion in violation of the
United States Constitution.” Ibid. In particular, the parents argued that through the
teaching of family life and human sexuality “children will be exposed to attitudes, goals,
and values that are contrary to their own and to those of their parents, and will thereby be
inhibited in the practice of their religion.” Id. at 520–21. However, because the regulation
included an “excusal clause,” the Court stated that “[w]hether or not [the parents’
argument was] well-reasoned we need not now decide, for we believe that the simple fact
that parents can remove their children from any objectionable part of the program is
dispositive.” Id. at 521. That is, “if the program violates a person’s beliefs, that person is
not required to participate.” Ibid. Thus, “[w]here there is no compulsion to participate in
this program, there can be no infringement upon appellants’ rights freely to exercise their
religion.” Ibid.
Here, as in the family life program in Smith, Fun Home is optional. Any twelfth-
grade student who finds the book objectionable need not read it. Thus, there is no
“substantial constitutional issue” involving the thorough-and-efficient clause or a parent’s
right to control their children. The unproven fear that “there is no way [to] reasonably
prevent Fun Home’s obscene images from being viewed by other children in the school

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15
or on the bus or even by young siblings at home,” as petitioners argue, is also an
unavailing claim for dispensing with the ninety-day rule.8
Finally, petitioners maintain that relaxation is appropriate because of the “[p]ublic
interest in protecting children from inappropriate, sexually explicit, illicit and otherwise
harmful material.” While it appears that 650 parents and community members signed a
petition asking the Board to remove Fun Home from the curriculum, and these numbers
reflect a public interest beyond petitioners’ private interest, “the greater public interest in
this matter lies with enforcement of the 90-day rule and dismissal of petitioner[s’] appeal
as untimely.” Le Mee v. Bd. of Educ. of Ridgewood, 1990 S.L.D. 671, 673. There is no
“fundamental public interest” in the inclusion of an optional reading assignment in a
twelfth-grade curriculum as was seen in D’Alessandro or Newark Teachers Union.
N.J.S.A. 18A:33-1 empowers a school board to provide “courses of study suited to
the ages and attainments of all pupils,” and further provides that “no course of study shall
be adopted or altered except by the recorded roll call majority vote of the full membership
of the board of education of the district.” An action by a board of education “is entitled to
a presumption of correctness and will not be upset unless there is an affirmative showing
that such decision was arbitrary, capricious or unreasonable.” Thomas v. Morris Twp.
Bd. of Educ., 89 N.J. Super. 327, 332 (App. Div. 1965). If petitioners had wished to
challenge the Board’s decision, they should not have waited more than a year to file this
appeal in violation of the ninety-day rule, which is designed to “stimulate litigants to pursue
8 It should be noted that N.J.S.A. 18A:35-4.35 became effective January 31, 2019, and provides that the
history of disabled and LGBT persons be included in the middle- and high-school curriculum. “A board of
education shall include instruction on the political, economic, and social contributions of persons with
disabilities and lesbian, gay, bisexual, and transgender people, in an appropriate place in the curriculum of
middle school and high school students as part of the district’s implementation of the New Jersey Student
Learning Standards.”
N.J.S.A. 18A:35-4.36, effective the same date, provides for the policies and procedures pertaining to
inclusive instructional materials. “A board of education shall have policies and procedures in place
pertaining to the selection of instructional materials to implement the requirements of section 1 [C.18A:35-
4.35] of this act. When adopting instructional materials for use in the schools of the district, a board of
education shall adopt inclusive instructional materials that portray the cultural and economic diversity of
society including the political, economic, and social contributions of persons with disabilities and lesbian,
gay, bisexual, and transgender people, where appropriate.”

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16
a right of action within a reasonable time” and “penalize dilatoriness and serve as a
measure of repose.”9
For these reasons, the Board’s motion to dismiss the petition as untimely shall be
granted, and the petition shall be dismissed. As such, it is unnecessary to reach the
substantive issue of whether the Board’s decision to include Fun Home in the curriculum
was arbitrary or capricious.
ORDER
I hereby ORDER that the motion to dismiss filed by the respondent Board of
Education of the Watchung Hills Regional School District is GRANTED, and the petition
is DISMISSED.
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.
9 The Board also questions the standing of several of the petitioners. Given that the Board filed its motion
during the 2019–2020 school year, and it is currently the 2021–2022 school year, the status of the various
petitioners is unclear. That is, it is not now known with certainty if any of the petitioners have moved out of
the school district, what grade or grades their children are in, or if some of the children on whose behalf the
petition was filed have graduated and/or are now adults. Standing is “a threshold justiciability determination
whether the litigant is entitled to initiate and maintain an action before a court or other tribunal.” In re Six-
Month Extension of N.J.A.C. 5:91-1 et seq., 372 N.J. Super. 61, 85 (App. Div. 2004). However, because
this matter should be dismissed under the ninety-day rule, any standing issues need not now be addressed.

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17
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 5, 2021_______
DATE SUSAN M. SCAROLA, ALJ
(Ret., on recall)
Date Received at Agency: November 5, 2021 (emailed)
Date Mailed to Parties:

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18
APPENDIX
WITNESSES
For petitioners:
None
For respondent:
None
EXHIBITS
For petitioners:
Brief and Certification
Letter Supplement
Response
For respondent:
Brief and Certification
Letter response to Supplement