Cathleen Cahn v. Board of Education of the Ramapo Indian Hills Regional High School District, Bergen County, 6/12/25 (#298-25R)

298-25R
OAL Dkt. No. EDU 05928-23
Agency Dkt. No. 125-5/23
New Jersey Commissioner of Education
Final Decision
Cathleen Cahn,
Petitioner,
v.
Board of Education of the Ramapo Indian Hills
Regional High School District, Bergen County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by the petitioner pursuant to N.J.A.C. 1:1-18.4, and the Ramapo Indian Hills
Regional High School District Board of Education’s (Board) reply thereto, have been reviewed and
considered.
Petitioner challenges the Board’s denial of her application for a substitute teacher
position, alleging that she was denied employment due to her social media posts concerning the
Board’s operations. 	The Administrative Law Judge (ALJ) concluded that petitioner was not
employed by the Board and was therefore not entitled to the protections related to the non-
renewal of school district employment; the Board took no action to prevent petitioner’s free
expression; and petitioner had not shown that the Board’s action was the result of a
discriminatory action based upon a protected class. The ALJ also found that petitioner had not
put forward facts that would allow a reasonable inference that petitioner’s online activity formed

2
the basis for the Board’s decision, and that there was nothing to objectively establish that but for
petitioner’s social media posts, the Board would have appointed her to the position of substitute
teacher. Accordingly, the ALJ granted the Board’s motion for summary decision and dismissed
the petition.
In her exceptions, petitioner argues that in making its hiring decisions, the Board’s
decision must comport with the law, including the First Amendment. Petitioner contends that
the Board’s refusal to hire her in response to her First Amendment-protected activity is
actionable as retaliation, such that it is irrelevant for purposes of the analysis that petitioner was
not employed by the Board at the time of its action. According to petitioner, the ALJ applied the
wrong standard, requiring petitioner to provide her case by a preponderance of the evidence,
rather than viewing the facts in the light most favorable to her. Petitioner argues that, because
the Board failed to provide any explanation for its decision, the only evidence in the record
regarding its reasoning is that it was based on petitioner’s social media posts, and therefore
summary decision was inappropriate; for similar reasons, petitioner also contends that she
should have been permitted to engage in discovery to obtain information about its reasoning
from the Board.
In response, the Board argues that the ALJ properly applied the summary decision
standard, which requires petitioner to provide some fact or evidence to demonstrate that a
reasonable factfinder could conclude that the Board’s decision not to appoint petitioner to the
substitute teaching position violated her constitutional rights or was otherwise arbitrary,
capricious, or unreasonable. 	According to the Board, the ALJ correctly found that petitioner
failed to provide such evidence. 	The Board asserts that petitioner’s arguments regarding the

3
existence of a genuine issue of material fact – the reason for the Board’s decision – is a completely
speculative conclusion, insufficient to defeat summary decision. The Board argues that petitioner
has not identified the actual speech that the alleged retaliation was based on, or any evidence
that her speech was a substantial and motivating factor in the Board’s decision.
Upon 	review, 	the 	Commissioner 	concurs 	with 	the 	ALJ 	that 	petitioner 	has 	not
demonstrated that the Board’s decision was in violation of her constitutional rights. Petitioner’s
argument is premised on the assumption that, absent an explanation to the contrary for its
decision, the only possible conclusion is that its decision was based on petitioner’s allegedly-
protected speech. But that type of speculation is insufficient for the Commissioner to conclude
that the Board’s decision was in violation of petitioner’s constitutional rights.
Nonetheless, the Commissioner is constrained to remand this matter for further
factfinding. The petition of appeal alleges that the Board’s decision not to appoint petitioner to
the position of substitute teacher was arbitrary, capricious, and unreasonable, in violation of
N.J.S.A. 18A:27-4.1. When a board of education votes on a recommended appointment, it “shall
not withhold its approval for arbitrary and capricious reasons.” 	N.J.S.A. 18A:27-4.1(a). 	This
language exactly parallels the language pertaining to non-renewals, which the Appellate Division
has found to “circumscribe the board’s power to withhold approval.” Truncellito v. Bd. of Educ.
of the Twp. of Lyndhurst, Bergen Co., 2022 N.J. Super. Unpub. LEXIS 92, at *8 (App. Div. Jan. 24,
2022). The statute requires the Commissioner to examine whether the Board exceeded its power
to withhold approval of petitioner’s appointment. 	Although a board of education has wide
latitude regarding its employment decisions, Dore v. Bedminster Twp. Bd. of Ed., 185 N.J. Super.
447 (App. Div. 1982), the absence of any explanation whatsoever by the Board for its action here

4
creates a genuine issue of material fact as to what the Board’s reason was, sufficient to preclude
summary decision at this stage.1
Accordingly, this matter is remanded to the OAL for further proceedings consistent with
this decision.
IT IS SO ORDERED.
COMMISSIONER OF EDUCATION
Date of Decision: 	June 12, 2025
Date of Mailing: 	June 12, 2025
1 The Commissioner notes that the ALJ indicated in his Order denying petitioner’s motion to compel
discovery that the specific reasoning of the five Board members who did not vote in favor of employing
petitioner may be obtained by subpoena of those Board members, but that he suspected that the
deliberative process privilege would preclude that discovery. The Commissioner declines to determine,
at this stage, whether the deliberative process privilege protects any information petitioner may seek to
elicit from Board members or any other witnesses.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
GRANTING RESPONDENT’S
SUMMARY DISPOSITION MOTION
OAL DKT. NO. EDU 05928-23
AGENCY DKT. NO. 125-5/23
CATHLEEN CAHN,
Petitioner,
v.
BOARD OF EDUCATION OF THE
RAMAPO INDIAN HILLS REGIONAL
HIGH SCHOOL DISTRICT, BERGEN
COUNTY,
Respondent.
_______________________________
Edward A. Cridge, Esq., for petitioner (Mellk Cridge, attorneys)
Matthew J. Giacobbe, and Anthony G. LoBrace, Esqs., for respondent (Cleary,
Giacobbe, Alferi, Jacobs, attorneys)
BEFORE JOSEPH A. ASCIONE, ALJ (Ret., on recall):
Record Closed: February 10, 2025 	Decided: March 12, 2025

OAL DKT. NO. EDU 05928-23
2
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
On 	May 	4, 	2023, 	petitioner 	filed 	a 	Verified 	Petition 	of 	Appeal 	with 	the
Commissioner of Education. 	On July 5, 2023, the New Jersey State Department of
Education, Bureau of Controversies and Disputes, transmitted the matter to the Office of
Administrative Law (OAL), pursuant to N.J.A.C. 1:1-8.2. On August 16, 2024, petitioner
filed a motion to compel complete and specific answers to interrogatories of respondent,
on the basis that the answers were non-responsive. 	The Board filed answering papers
and brief on September 6, 2024, and petitioner filed a reply brief on September 11,
2024. 	The OAL heard oral argument on October 4, 2024. 	Petitioner’s motion was
denied on October 10, 2024. 	On December 16, 2024, Respondent filed a motion for
summary disposition. 	On January 15, 2025, Petitioner filed answering papers. 	On
January 29, 2025, respondent filed reply papers. 	Oral argument was held on February
10, 2025, and the record closed on February 10, 2025.
FACTUAL DISCUSSION
Petitioner possess teaching certificates for Elementary School and Handicapped
(Verified Petition Paragraph 1). 	On or about January 26, 2023, petitioner submitted an
application for employment, as a substitute teacher, with the respondent, pursuant to a
request posted by respondent. 	On March 13, 2023, at the Board’s meeting, Dr. Riu
Dionisio, the Board Superintendent, recommended the appointment of petitioner to the
position of substitute teacher. The matter was tabled at that meeting, but considered at
the March 27, 2023, meeting, where the appointment did not receive sufficient votes for
approval. The petitioner is not an employee of the Board, nor was she at the time of the
submission of the application for consideration. 	The petition maintains she was denied
employment due to the Board’s influence from petitioner’s speech published on social
media, specifically Facebook©, addressed to the operation of the Board. 	Petitioner
maintains the Board violated the 1st and 14 th Amendments to the United States
Constitution, the New Jersey Constitution, Article 1, Paragraph 6, and the New Jersey
Civil Rights Act, N.J.S.A. 10:6.1 et. seq.

OAL DKT. NO. EDU 05928-23
3
Respondent 	proffers, 	the 	petitioner 	is 	not 	an 	employee 	of 	the 	Board, 	the
respondent here is the Board, not its individual members, and the deliberative process
privilege generally exempts public officials from being required to explain their reason
for voting for or against any action. Petitioner here did not receive an affirmative vote of
a majority of the members of the Board to be offered a position as a substitute teacher.
FINDINGS OF FACT
As a result of the certifications and documentary evidence provided, I
FIND the following FACTS:
1. 	The petitioner is not and was never an employee of the respondent prior to
the incident in question.
2. 	On January 26, 2023, the petitioner applied for a substitute teaching position
for 	the 	2022-2023 	school 	year 	at 	respondent. 	See 	Verified 	Petition
Paragraph 4.
3. 	The then superintendent, Dr. Rui Dionisio, recommended the petitioner for the
position. See Verified Petition Paragraph 5.
4. 	Prior to respondent’s vote on the consideration of appointment of petitioner,
various members of the public expressed concern about the appointment of
petitioner. See Petitioner’s Interrogatories responses Cahn 007, 011, 013.
5. 	Respondent’s duties include consideration of public imput.
6. 	On March 27, 2023, a majority of the members of respondent voted against
consideration of hiring petitioner for the position of substitute teacher. 	See
minutes of respondent’s March 27, 2023 meeting.
7. 	The 	petitioner 	alleges 	that 	submissions 	by 	the 	public 	in 	opposition 	to
consideration of the petitioner to the position of substitute teacher which

OAL DKT. NO. EDU 05928-23
4
contained excerpts of online posts by petitioner resulted in a violation of her
freedom of expression.
8. 	The excerpt reflects petitioner’s opinion regarding the actions of the public at
respondent’s meetings. 	Specifically, related to the public’s mis-impression
that a member of the respondent has any obligation to respond to a public
comment. 	This 	in 	no 	way 	can 	be 	characterized 	as 	a 	criticism 	of 	the
respondent or its members and does not support any claim of petitioner.
9. 	The second excerpt reflects petitioner’s comment as, “(o)ur school board has
been hijacked by an uninformed majority.” 	While critical of a school board, it
is 	insufficient 	to 	qualify 	as 	language 	which 	rises 	to 	a 	“substantial 	and
motivating factor” in the adverse decision made.
10. There is no showing that the action of the Board was motivated by an
impermissible motivation, ie. protected class -- age, race, national origin,
religion, etc.
11. The petitioner exercised her freedom of expression.
12. The petitioner has failed to show any violation of a constitutional right.
13. A potential employee has no cause of action for a failure to hire, when as
here there is no claim or showing the petitioner is a member of a protected
class.
14. Respondent is within its rights to reject the application of a potential employee
based upon negative public input.
15. Respondent 	is 	within 	it’s 	rights 	to 	reject 	the 	application 	of 	a 	potential
employee based upon public observation of online content which it may deem
undesirable to its operation of a school system.

OAL DKT. NO. EDU 05928-23
5
16. Respondent’s action can in no way be deemed arbitrary, capricious, or
unreasonable.
LEGAL DISCUSSION
Under N.J.A.C. 1:1-12.5, “[a] party may move for summary decision upon all or
any of the substantive issues in a contested case.” N.J.A.C. 1:1-12.5(a). 	Summary
decision may be granted if “[t]he papers and discovery which have been filed, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to prevail as a matter of law.” 	N.J.A.C.
1:1-12.5(b). 	And “[w]hen a motion for summary decision is made and supported, an
adverse party in order to prevail must by responding affidavit set forth specific facts
showing that there is a genuine issue which can only be determined in an evidentiary
proceeding.” Ibid.
In making this determination, a judge is to consider “[w]hether the competent
evidential materials presented, when viewed in a light most favorable to the non-moving
party in consideration of the applicable evidentiary standard, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523 (1995). 	The relevant
inquiry 	is 	whether 	the 	evidence 	presents 	a 	sufficient 	disagreement 	to 	require
submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law. Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
In this situation, the petitioner is not a public employee, accordingly non-renewal
protections are not applicable here. 	The petitioner does not allege any protected class
rather she claims entitlement for a position she did not receive. 	She maintains that
because she expressed her opinion in social media, her 1st Amendment and New
Jersey Constitutional rights were denied because she had been denied potential
employment as a substitute teacher. 	Petitioner has only offered submissions of
excerpts from negative public comments regarding her potential appointment. 	She has
failed to identify the protected speech she maintains supports her claim. 	She has
offered no evidence of these facts. 	She attempted to obtain these facts from one or

OAL DKT. NO. EDU 05928-23
6
more of the five members of the Board who did not vote to approve her appointment as
a potential substitute teacher, however, petitioner did not bring her action against
individual board members. The respondent is the Board. This tribunal does not accept
petitioncer’s 	argument 	that 	the 	1st 	and 	14 th 	Amendments 	of 	the 	United 	States
Constitution, the New Jersey Constitution, nor the New Jersey Civil Rights Act, N.J.S.A.
10:6.1 et. seq., provide her with a valid claim when rejected for public employment
based upon her freedom of expression. 	Petitioner presently has offered insufficient
evidence 	to 	support 	her 	position 	that 	the 	Board’s 	actions 	were 	based 	upon
impermissible rationales. 	All of the cases put forth by petitioner involve retailiatory
action taken against an employee based upon the exercise of free speech. Even in the
case of Smith v. Cent. Dauphin Sch. Dist., 419 F. Supp. 2d 639 (M.D. Pa. Sept. 23,
2005), that petitioner was a teacher at Central Dauphin School District, and had
previously held a position of assistant coach which was not renewed after the petitioner
had reported concerns regarding an ongoing mold hazard to a State agency. Here, the
petitioner exercised her right to free speech, however the respondent took no action to
prevent such expression. 	Petitioner must recognize that the use of free speech may
result in consequences. 	To argue that the respondent cannot consider her actions in
determining whether to offer her employment has no basis in law. 	A public body is
permitted to determine that the employment of a gadfly or opinionated individual does
not support its objectives. Whether the decision in this matter was made because of the
negative public input or the actual content of online postings is not relevant. There is no
showing that the action was the result of a discriminatory action based upon a protected
class. 	The current case presents insufficient evidence for a reasonable factfinder to
believe a person of ordinary firmness would feel deterred from exercising free speech
out of fear of merely being denied a job opportunity.
This tribunal’s considerion of the line of cases dealing with retaliation for the
exercise of free speech requires a finding that the speech be a substantial and
motivating factor in the respondent’s action. 	Specifically, supported by an unusually
suggestive temporal proximaty between the speech and the respondent’s retailiatory
action; a pattern of antagonism coupled with suspicious timining; or that the record
evidence, taken as a whole, compels the trier of fact to infer that causation existed. See
Oliver v. Roquet, 858 F.3d 180, 190 (3d Cir. 2017); Lauren W., 480 F.3d at 267. 	This

OAL DKT. NO. EDU 05928-23
7
burden is not discharged by simply showing that the challenged governmental action
happened to relate in some way to the protected speech; rather, there must be
“particular facts that allow the court to reasonably infer it is the protected activity itself ...
that formed the basis for the defendant’s adverse action.” 	Oliver, F.3d at 192. Courts
must be diligent in enforcing this causation requirement so as to avoid chilling a
governmental actor’s appropriate discharge of the responsibilities of their office or
position. Lauren W., 480 F.3d at 267-68. Petitioner has not put forward particular facts
that allow this tribunal to reasonably infer that it was petitioner’s online activity that
formed the basis for the respondent’s decision. 	Petitioner has put forward ten (10)
words she posted online that were marginally critical of the respondent and somehow
draws the conclusion that it was these ten (10) words that the respondent’s decision
was based upon. There is no record evidence demonstrating any sort of antagonism or
hostility that arose or previously existed between the repondent and petitioner in
connection with the content she posted on social media, nor is there record evidence
from which an inference could be drawn that it was petitioner’s actual social media
content itself that caused the respondent’s decision. 	Petitioner claims that, but for her
Facebook© postings, the respondent would have appointed her, however, there is
nothing to objectively establish that to have been the case.
The record evidence put forward by petitioner in seeking to avoid summary
decision in this matter is simply insufficient to create a genuine issue of material fact
that the respondent’s decision not to appoint her violated her state or federal free
speech rights. 	Petitioner has not identified any of her own Facebook© content that the
respondent’s decision was allegedly based upon. 	Furthermore, the Facebook© content
that she has identified, through emails of others that were sent to the Board, is
incomplete, without sufficient information for this tribunal to conduct a legitimate First
Amendment analysis, and is not of such a quality that any plausible inference could be
drawn that the respondent’s decision not to appoint petitioner was premised upon the
speech identified in her discovery. Nor has petitioner identified any fact or evidence that
ties the respondent’s non-appointment to the content she posted on social media.

OAL DKT. NO. EDU 05928-23
8
A public body has a privledge to protect the process of deliberation. 	This
privledge is designed to provide governmental entitles with the freedom to conduct
uninhibited cnommunications so that the best decisions can be reachaed. 	See Educ.
Law Ctr. ex rel Abbott v. New Jersey Dep’t of Educ., 198 N.J. 274, 285 (2000); and
McGee v. Twp. of East Amwell, 416 N.J. Super 602,619 (App.Div. 2010).
The Department of Education’s position is that there is great latitude in a board’s
determination regarding the renewal of a teacher’s contract. 	Such latitude should also
apply 	by 	analogy 	to 	a 	non-employee, 	prospective 	employee. 	See 	Truncellito 	v.
Lyndhurst Bd. of Educ., 2019 N.J. AGEN LEXIS 643 (Sept. 18, 2019), rev’d, 2019 N.J.
AGEN LEXIS 1093 (Dec. 3, 2019), rev’d and remanded, 2022 N.J. Super. Unpub.
LEXIS 92 (App. Div. Jan. 24, 2022). 	This tribunal relies on the positions stated by the
Department of Education in the Truncellito matter, despite the remand by the Appellate
Division. 	The remand dealt with the failure of the Commissioner to address the
arbitrary, capricious and unreasonable finding by the ALJ. 	Those factors are not
present here. 	This tribunal also relies on Hubbard v. Springfield Bd. of Educ., 80 Fed.
Appx. 757 (3d Cir. 2003). 	The Hubbard case deals with a claim of discrimination. 	It
places the burden of proof on the party claiming the discrimination. 	This tribunal
seriously questions whether a potential employee’s 1st Amendment speech rights
automatically make a negative vote approving that individual actionable.
The challenging party bears the burden of proving that the agency action was
arbitrary, capricious, and unreasonable by the preponderance of the credible evidence.
J.P. & M.P. v. S. Brunswick Bd. of Educ.., 2002 N.J. AGEN LEXIS 952 at *10-12 (Dec.
17, 2002); New Jersey Soc’y for Prevention of Cruelty to Animals v. New Jersey Dep’t
of Agric., 196 N.J. 366, 385 (2008); In re Freshwater Wetlands Prot. Act Rules, 180 N.J.
415, 432 (2004); New Jersey State League of Municipalities v. Dep’t of Cmty. Affairs,
158 N.J. 211, 222 (1999).

OAL DKT. NO. EDU 05928-23
9
Petitioner has not satisfied her burden of demonstrating that respondent acted
arbitrarily, capriciously, or unreasonably by denying her a position as a substitute
teacher.
CONCLUSION
After hearing the arguments of petitioner and respondent and considering the
documents submitted, I CONCLUDE that the facts do not support the petitioner’s claim.
Specifically, 	the 	petitioner 	has 	made 	a 	vague 	allegation 	that 	the 	actions 	of 	the
respondent are arbitrary, capricious, and unreasonable. 	No evidence has been put
forth to cast any question that the actions fall within that categorization.
ORDER
It 	is 	hereby 	ORDERED 	that 	respondent’s 	motion 	for 	summary 	disposition
dismissing the petitioner’s claim is GRANTED.
I hereby FILE this initial decision with the ACTING COMMISSIONER OF THE
DEPARTMENT OF EDUCATION for consideration.
This recommended decision may be adopted, modified, or rejected by the
ACTING COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is
authorized to make a final decision in this matter. 	If the Acting 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 05928-23
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 	ACTING
COMMISSIONER OF THE DEPARTMENT OF EDUCATION. 	Exceptions may be
filed by email to ControversiesDisputesFilings@doe.nj.gov or by mail to Office of
Controversies and Disputes, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton,
New Jersey 08625-0500. 	A copy of any exceptions must be sent to the judge and to
the other parties.
March 12, 2025
DATE 	JOSEPH A. ASCIONE, ALJ (Ret., on recall)
Date Received at Agency: 	March 12, 2025
Date Sent to Parties: 	March 12, 2025

OAL DKT. NO. EDU 05928-23
11
APPENDIX
LIST OF EXHIBITS
For Petitioner:
P-1 	Petitioner’s Answering Brief in Opposition of Motion for Summary Decision, dated
1/14/25
Exhibit A - Verified Petition
Exhibit B - Answer to Verified Petition
Exhibit C - Petitioner’s Objections, Reservations, and Responses to
Interrogatories and Requests for the Production of Documents
to Respondent, dated 7/12/24
Exhibit D - Cahn 001 - Cahn 013
Exhibit E - Respondent’s Response to Petitioner’s Request for
Interrogatories and Requests for Production of Documents,
dated 7/8/24
Exhibit F - Order Denying Petitioner’s Discovery Motion, dated 10/10/24
For Respondent:
R-1 	Respondent’s Motion for Summary Decision, dated 12/16/24
Exhibit A - Verified Petition
Exhibit B - Petitioner’s Responses to Respondent’s Interrogatories and
Requests for the Production of Documents, dated 7/12/24
Exhibit C - Respondent’s Responses to Petitioner’s Interrogatories and
Requests for Production of Documents, dated 7/8/24
R-2 	Respondent’s Reply Brief in Further Support of Motion for Summary Decision,
dated 1/29/25
Exhibit D - Respondent’s Response to Petitioner’s March 28, 2023 Open
Public Records Act request, dated 4/7/23