D.S., on behalf of minor child, A.S. v. Board of Education of the Township of Hamilton, Mercer County, 5/9/2023, (#138-23)

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138-23

New Jersey Commissioner of Education

Final Decision

D.S., on behalf of minor child, M.S.,

Petitioner,

Board of Education of the Township of Hamilton,
Mercer County,

Respondent.

Synopsis

Petitioner challenged the decision of the respondent Board to deny her request to transfer her daughter,
M.S., from Steinert High School (Steinert) to Hamilton High School West (HHS-W) for the remainder of
the 2022-2023 school year. The instant case is the latest in a series of challenges brought by the
petitioner against the Board since 2021 involving demands that M.S. be allowed to finish her high school
education at HHS-West despite the fact that M.S. was subject to discipline and removed from school at
HHS-West on nine occasions for fighting and acts of harassment, intimidation and bullying against fellow
students.

The ALJ found, inter alia, that: to prevail in this matter, petitioner was required to prove that the
Board’s decision to deny her request to enroll M.S. at HHS-West for the remainder of the 2022-2023
school year was arbitrary, capricious, unreasonable and/or in violation of Board policy; petitioner failed
to present any such evidence; the school administration must by law and Board policy act in the best
interest of the student and there is no evidence that it is in M.S.’s best interest to return to HHS-West
rather than complete her senior year at Steinert; M.S. admitted in testimony that she had poor
academic performance while a student at HHS-West and had improved her performance at Steinert;
further, M.S. testified that had she stayed on the path she was on at HHS-West, she would not be on the
Honor Roll and headed to college in the fall; actions taken by a school board that fall within its authority,
including the adoption and implementation of policies for assignment of students, are entitled to a
presumption of correctness and will not be upset without an affirmative showing that a decision is
arbitrary, capricious or unreasonable; and, based on the factual record in this case, the Board had a
strong basis for its consistent decision to refuse to enroll M.S. at HHS-West. The ALJ concluded that the
petitioner did not carry her burden of proof in this matter. Accordingly, the ALJ dismissed the petition.

Upon a comprehensive review, the Commissioner concurred with the findings and conclusions of the ALJ
and adopted the Initial Decision of the OAL as the final decision in this matter. 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. 10144-22
Agency Dkt. No. 269-10/22
New Jersey Commissioner of Education
Final Decision
D.S., on behalf of minor child, M.S.,
Petitioner,
v.
Board of Education of the Township of
Hamilton, Mercer County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL) have
been reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge, for the reasons
detailed in the Initial Decision, that the Hamilton Township Board of Education’s decision to deny
petitioner’s request for a transfer of her minor child to a different high school within the school district
was not arbitrary, capricious, or unreasonable.
Accordingly, the Initial Decision 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:
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.
138-23
May 9, 2023
May 10, 2023

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 10144-22
AGENCY DKT. NO. 269-10/22
D.S. ON BEHALF OF M.S.,
Petitioner,
v.
HAMILTON TOWNSHIP BOARD
OF EDUCATION, MERCER COUNTY,
Respondent.
D.S., petitioner, pro se
Patrick F. Carrigg, Esq., for respondent (Lenox, Socey, Formidoni, Giordano,
Cooley, Lang & Casey, attorneys)
Record Closed: March 13, 2023 Decided: March 30, 2023
BEFORE TRICIA M. CALIGUIRE, ALJ:
STATEMENT OF THE CASE
Petitioner D.S. on behalf of M.S. challenges the decision of respondent Hamilton
Township Board of Education, Mercer County (Board) to deny her request to transfer M.S.
from Hamilton High School East (Steinert) to Hamilton High School-West (HHS-West),
for the remainder of the 2022–2023 school year.

OAL DKT. NO. EDU 10144-22
2
PROCEDURAL HISTORY
On October 7, 2022, D.S. filed a petition of appeal with the New Jersey Department
of Education, Office of Controversies and Disputes (DOE), to challenge the decision of
respondent Board to deny her request to enroll M.S. at HHS-West. On November 9,
2022, respondent filed a motion for summary decision in lieu of an answer on the grounds
that petitioner did not live within the geographic boundaries of HHS-West. The
Commissioner of Education did not rule on the motion but transmitted it with the petition
to the Office of Administrative Law (OAL) on November 10, 2022, for hearing as a
contested case pursuant to N.J.S.A. 52:14B-1 to -15, and N.J.S.A. 52:14F-1 to -13.
On December 16, 2022, based on changed circumstances since the date of the
petition, I directed petitioner to amend her petition with proof of her change of residence
and permitted respondent to file an amended answer or amended motion for summary
decision. On January 3, 2023, petitioner filed an amended petition. On January 13, 2023,
respondent filed a second motion for summary decision. This motion was denied on the
record on March 6, 2023, prior to the due process hearing, which was scheduled to
coincide with the hearing in a related case between these parties, EDU 07264-22.1
As described in the summary of undisputed facts, below, since early 2021, I have
presided over six matters involving these parties and prior to this hearing, had issued
decisions in four of the matters. Generally, based on the documents filed in both this
matter and in EDU 07264-22, and the testimony and arguments made by both parties in
prior matters over which I presided, I understood that the basis for petitioner’s current
requests for relief, and the grounds by which respondent denied both requests, were
similar. In the interest of judicial economy and in an attempt to provide petitioner with
resolution prior to the end of the current school year,2 the hearings in both matters were
conducted on March 6, 2023, at the OAL.3 Following the hearing, petitioner submitted a
1 See also D.S obo M.S. v. Hamilton Twp. Bd. of Educ., OAL Dkt. No. 07264-22, Initial Decision (March 30,
2023).
2 M.S. is on track to graduate in June 2023.
3 All other hearings involving these parties over which I presided were conducted by Zoom due to the
restrictions on public gatherings initiated during the COVID-19 emergency.

OAL DKT. NO. EDU 10144-22
3
handwritten letter accusing opposing counsel of specific improper conduct, which was
vehemently denied by return letter of counsel. This correspondence was forwarded to
Candice Hendricks, OAL Assistant Director of Judicial Standards. The record remained
open for simultaneous post-hearing submissions and on March 13, 2023, the record
closed.4
FACTUAL DISCUSSION AND FINDINGS
The following background FACTS are not in dispute and accordingly, I FIND:
The Hamilton Township School District (District) operates three high schools and
assigns students residing within the District to a specific high school based on pre-
determined residential boundary lines. When M.S. began high school, in September
2019, she lived with her mother, D.S., at an address within the HHS-West zone and
attended HHS-West.
During the 2019–2020 school year, M.S. was subject to discipline and removed
from school on nine occasions.5 She was charged with seven acts of harassment,
intimidation and bullying (HIB) toward another HHS-West student. On July 27, 2020, D.S.
filed a due process petition to challenge the Board’s decision finding M.S. guilty of seven
counts of HIB. After transmittal to the OAL, this matter was docketed as EDU 07830-20,
and assigned to the Honorable Jeffrey N. Rabin, ALJ.
4 In all the proceedings before me, D.S. showed a complete lack of propriety and disregard for civility,
insulted and denigrated witnesses, opposing counsel, my judicial support specialist, and myself, in
correspondence, telephone conferences, and during hearings. One final example follows. After receiving
respondent’s post-hearing submission, D.S., apparently having forgotten my instructions from the bench,
sent the following email to my chambers: “With all due respect; what is this? More testimony in cases that
were already heard on 3/6/2023. If Judge Claigure [sic] permits this after me being verbally threatened by
Rita Barons [sic] after Judge Caligula [sic] left the bench, I will be filing a reply[.] It saddens me that the
HTSD is continuing to waste taxpayers money purposely continuing fighting for something that will cause
absolutely NOONE any harm instead increases the moral and positive influence in My child's life and
education. Isn't that what we should be focusing on and not continually try and break [M.S.] down even
more[.] You disgust me[.]”
5 See D.S. obo M.S. v. Hamilton Twp. Bd. of Educ., OAL Dkt. No. 07830-20, Transmittal Documents (August
14, 2020).

OAL DKT. NO. EDU 10144-22
4
On September 25, 2020, D.S. filed an emergent petition to challenge one of the
seven findings of HIB and to also charge HHS-West Principal Brian Smith with
harassment. The harassment charge triggered a separate internal investigation by the
Board and therefore, the DOE transmitted only the HIB challenge, docketed at the OAL
as EDU 09096-20, and assigned to Judge Rabin. Before the emergent hearing, D.S. filed
a motion for Judge Rabin’s recusal, which was denied. On October 6, 2020, Judge Rabin
issued a ruling denying emergent relief.
On October 21, 2020, D.S. filed a second motion for Judge Rabin to recuse himself
in EDU 07830-20, which motion was also denied.
On March 2, 2021, while EDU 07380-20 was pending, D.S. filed a related
emergent petition charging Principal Smith with continued harassment of both D.S. and
M.S. and appealing the decision of respondent to bar D.S. from HHS-West property due
to her allegedly inappropriate behavior. The emergent matter, EDU 02205-21, was
assigned to Judge Rabin, who conducted the emergent hearing and on March 10, 2021,
issued a ruling denying emergent relief.6 In his order on emergent relief, Judge Rabin
found as fact that:
[D.S.] had spoken derogatory and accusatory language
against Principal Smith during the public portion of public
school board meetings and in correspondence to various
parties, included publicly accusing Principal Smith of being a
racist. Because of these issues, and because of the litigation
between the parties, Dr. James Altobello (the Board’s Director
of Secondary Education), in conjunction with the Board
superintendent, created interventions to ensure that D.S. and
Smith did not have direct interaction.
[D.S. on behalf of M.S. v. Hamilton Twp. Bd. of Educ., OAL
Dkt. No. EDU 02205-21, Order (March 11, 2021), at 3, aff’d.,
Final Decision (April 20, 2021).]
On March 10, 2021, D.S. on behalf of M.S. brought a lawsuit in Mercer County,
New Jersey Superior Court against certain administrators and staff of HHS-West, alleging
6 To date, the Board’s decision to bar D.S. from HHS-West buildings and grounds stands.

OAL DKT. NO. EDU 10144-22
5
racial profiling, discrimination, harassment, and bullying.7 This matter was resolved prior
to trial.
On March 30, 2021, D.S. filed a third motion for Judge Rabin to recuse himself in
EDU 07830-20, which motion was also denied.
M.S. withdrew from HHS-West in March 2021, and began the 2021–2022 school
year (in eleventh grade) at Gateway High School in Florida. On or before November 1,
2021, M.S. moved with her mother, D.S., back to New Jersey and took up residence in
Hamilton Township within the geographic zone assigned by the District to Hamilton High
School-East (also known as Steinert).
On October 28, 2021, D.S. applied to the District for an attendance zone waiver by
which M.S. would attend high school at HHS-West rather than Steinert. By letter dated
October 29, 2021, the District denied petitioner’s application. The District stated that its
decision was supported by the earlier allegations made by D.S. regarding HHS-West
administrators and staff, the litigation that ensued, and D.S.’s conduct during the 2020‒
2021 school year (as described more fully in the order issued by Judge Rabin in EDU
02205-21).
On or about February 1, 2022, M.S. was suspended by the Steinert administration
for fighting with another student and posting video of the fight on social media. M.S. is
eligible for special education and related services but, after a manifestation determination
meeting, respondent concluded that the conduct of M.S. constituted a disciplinary
infraction neither related to nor caused by her disability. D.S. sought an expedited ruling
overturning that decision and the discipline imposed on M.S. The expedited matter, EDS
01033-22, was assigned to me. Before the expedited hearing, D.S. filed an emergent
petition directly with the OAL; on February 23, 2022, following a hearing, I issued an order
denying emergent relief. The expedited hearing was held on March 4, 2022, and on
March 15, 2022, I issued a final decision in favor of respondent and D.S.’s petition was
7 Somma on behalf of M.S. v. Smith, et al., MERL-L-528-21 (Mercer County Super. Ct. 2021).

OAL DKT. NO. EDU 10144-22
6
dismissed. D.S. obo M.S. v. Bd. of Educ. of the Twp. of Hamilton, OAL Dkt. No. EDS
01033-22, Final Decision (March 15, 2022).
On March 8, 2022, petitioner filed an appeal of the first zone waiver denial with the
DOE. The matter was transmitted to the OAL, assigned to me, and on July 5, 2022, I
issued an initial decision granting summary decision in favor of the District, which was
affirmed by the Commissioner of Education. D.S. on behalf of M.S. v. Hamilton Township
Board of Education, OAL Dkt. No. EDU 02521-22, Initial Decision (July 5, 2022), aff’d.,
Final Decision (August 15, 2022).
Before the decision on the first zone waiver appeal was issued, petitioner asked
respondent if M.S. could participate in end-of-year activities at HHS-West with the rest of
the HHS-West Class of 2023 and, on June 13, 2022, respondent denied that request. On
July 18, 2022, petitioner appealed respondent’s decision. That petition was transmitted
by the DOE to the OAL, docketed as EDU 07264-22, and assigned to me. After that
matter was filed, D.S. informed respondent that she had contracted to purchase (but not
yet closed on) a home within the geographic zone assigned to HHS-West and, therefore,
asked that M.S.’s enrollment be changed from Steinert to HHS-West. Had the District
permitted M.S. to enroll at HHS-West after moving to the new home, EDU 07264-22 would
have been moot but on November 9, 2022, respondent stated that it would not permit
M.S. to enroll at HHS-West in the event of a permanent change in residency. In making
this decision, respondent relied on its November 5, 2021, letter to D.S. from counsel
explaining the basis for respondent’s denial of petitioner’s first request for a zone waiver.
This letter stated in pertinent part:
[Y]ou, individually, and on behalf of [M.S.], have accused
multiple administrators, including the Principal and the Athletic
Director, and multiple certified staff members assigned to
[HHS-West] of harassment and discrimination toward [M.S.]
and you arising from [bullying], disciplinary incidents, and
other circumstances. . . It is confounding that you would insist
on having [M.S.] assigned to a school against which you have
made such allegations. Nevertheless, while the District
denies those allegations and avers that it has engaged in
unbiased decisions toward you and [M.S.], those claims and
past circumstances justify [M.S.’s] assignment to a high

OAL DKT. NO. EDU 10144-22
7
school other than [HHS-West] which is in the best educational
interest of [M.S.] and the [HHS-West] staff.
[(R-8) (Ltr. of Patrick F. Carrigg, Esq., to D.S. (November 5,
2021), at 2.)]
On November 10, 2022, petitioner filed the present matter, an appeal of her second
zone waiver request. The DOE transmitted this matter to the OAL on November 15, 2022;
the OAL docketed it as EDU 10144-22, and assigned it to me.
On December 21, 2022, petitioner filed a request for emergent relief, seeking the
immediate transfer of M.S. from Steinert to HHS-West on the grounds that M.S. is unsafe
at Steinert due to allegedly being the victim of HIB on or about December 19, 2022, and
as a result of allegedly being subjected to excessive force by the school resource officer
immediately following the December 19, 2022, incident. This emergent matter was
docketed as EDU 11614-22 and assigned to me. The emergent hearing was held on
January 4, 2023, and on January 5, 2023, I issued an initial decision denying emergent
relief. D.S. on behalf of M.S. v. Hamilton Twp. Bd. of Educ., OAL Dkt. No. 11614-22, Initial
Decision (January 5, 2023), aff’d., Final Decision (February 24, 2023).
Disputed Issue
To prevail in this matter, petitioner must show that the decision of respondent to
deny her request to enroll M.S. at HHS-West for the remainder of the 2022–2023 school
year was arbitrary, capricious, unreasonable, and/or in violation of Board policy.
Testimony
Petitioner testified and presented the testimony of her daughter, M.S. Respondent
called one witness for the limited purpose of identifying pre-marked exhibits for
introduction. The following is not a verbatim recitation of the testimony but a summary of
the documentary and testimonial evidence I found relevant to the above-described
dispute.

OAL DKT. NO. EDU 10144-22
8
M.S. is an eighteen-year-old female in her senior year of high school. She started
her testimony with a general description of the mental health issues she experienced
while a middle school student in the District. Based on her testimony, it appears that
incidents occurring outside of school contributed to M.S.’s condition.
M.S. described two incidents during the 2019–2020 school year, when she was a
freshman, which resulted in her being disciplined by the HHS-West administration. The
first occurred at a football game at which she participated as a cheerleader. M.S. stated
that she was “jumped” from behind by another female student and she fought back. The
next day, M.S. was told that she was removed from the cheer team for fighting while
wearing her cheer uniform.
In the second incident, M.S. stated that she was trying to “de-escalate” a fight
between other students when a security guard attempted to grab her by the wrists. She
was sent to the nurse’s office.
While at HHS-West, M.S. stated that she had problems with the cheerleading
director, the athletic director, and the football coach. Further, she described her
relationship with Principal Smith as “rocky,” noting that he suspended her “a couple times,”
and that she did not want him involved in any disciplinary matters affecting her. M.S.
stated that she was very upset about how she was treated at HHS-West by administrators
and teachers. At the time, she told her mother, who took her complaints to the Board.
M.S. also knows that her mother filed a lawsuit against Principal Smith and others in the
administration, accusing them of racial discrimination.
M.S. recalled moving with her mother to Florida, where she completed tenth grade
and started eleventh grade. She could not recall the reason her family moved to Florida
and gave an incomplete explanation as to why they returned to New Jersey.
M.S. enrolled at Steinert in November 2021, and has since attended Steinert. She
stated that she has no friends there and no relationship with her guidance counselor or
other staff. On cross-examination, M.S. admitted that she has made a positive connection
with her Steinert art teacher, Mr. Cooper, who she described as a sort of “older sibling.”

OAL DKT. NO. EDU 10144-22
9
She also has a positive relationship with Ms. Leon, her support counselor. She stated
that she continues to meet (by Zoom and in-person) with her HHS-West counselor,
Edward Belfiore (Belfiore), who she has known since she was a young child. She
described Belfiore as a mentor and the most significant adult presence in her life.
Shortly after M.S. enrolled at Steinert, she started the Black Students’ Union (BSU)
because no such extracurricular organization existed at Steinert. M.S. wanted to learn
more about her culture. In the BSU, she has “cordial relationships,” but no friends.
M.S. recalled being suspended for fighting in school on February 1, 2022. She
stated that then-Steinert Principal Bridget O’Neil was not doing her job, evidence of which
is the excessive suspension Principal O’Neill gave M.S. for fighting. M.S. stated that she
was suspended for forty-five days and claimed that other male students were also
suspended (for an unrelated fight), but for a much shorter period. This, she said, was
proof of racial discrimination at Steinert, as the male students are white.
M.S. acknowledged that her actions in ninth and tenth grade, while at HHS-West,
were the result of her own poor decision-making and were “not worth it.” She stated that
she has come a long way, has made the Honor Roll for the first time this past semester,
and has applied to four colleges (for August 2023 admission). M.S. said that for the first
time, she is proud of herself. She understands that respondent will not permit her to
return to HHS-West because of her actions while a student at HHS-West, but it is
important for her to walk the stage with the HHS-West graduating class because her older
brother (who died prior to graduating high school) did not get that opportunity.
D.S. testified briefly on her own behalf.8 She spoke of ongoing issues with the
District and more than once, accused Superintendent Scott Rocco of denying her current
requests for personal reasons. She and M.S. are tired, emotionally drained, and want to
move on from the past.
8 Petitioner was not initially sworn in as she stated that she would be presenting arguments in favor of her
position, but when she began to describe incidents involving her daughter, she was asked to take the oath.
Her testimony was still relatively brief as I recognized that M.S., who was present, had first-hand knowledge
of the incidents being described.

OAL DKT. NO. EDU 10144-22
10
D.S. stated that after respondent denied her request for M.S. to participate in end-
of-year activities with the HHS-West Class of 2023 (which is the subject of EDU 07264-
22), she attended the June 2022 regular meeting of the Board. While there, D.S. stated
that she spoke with three Board members regarding the decision to deny her request and
that these Board members were not aware of the request, which is evidence of
Superintendent Rocco’s bad faith.
Dr. James Altobello, Director of Administration, testified on behalf of respondent.
Among his other duties for the District, Dr. Altobello is responsible for administering
requests for students to change schools within the District, such as the zone waiver
requests made by petitioner (and described above). He has communicated with petitioner
regarding the request involved in this matter (and the request involved in EDU 07264-22).
Dr. Altobello identified District Policy 5120, which provides in pertinent part:
The Board of Education directs the assignment of pupils to the
schools, programs, and classes of this district consistent with
the best interests of pupils and the best uses of the resources
of this district.
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 areas when such an exception is justified by
circumstances and/or is in the best interests of the pupil.
(Every effort will be made to exercise sensitivity and
reasonable judgment regarding student placement.)
[R-15.]
Dr. Altobello stated that Board Regulation 5120 describes how Policy 5120 will be
administered. He identified Board Regulation 5120, which provides in pertinent part:
The Superintendent or Designee will review all requests for
an “attendance zone waiver.” Approval of all zone waivers is
based upon the following criteria:
1. Legal mandates (court order, parental custody);

OAL DKT. NO. EDU 10144-22
11
2. Child Study recommendations;
3. Homelessness, Department of Child Protection and
Permanency interventions and
4. Students in good standing having attend Hamilton
Township Schools for two consecutive years and entering
5th, 8th, or 11th grade who move within the Hamilton
Township borders, may petition for a zone waiver to remain
in their current school through graduation or promotion.
[R-16.]
On October 25, 2021, and June 13, 2022, D.S. submitted zone waiver requests.
(R5; R-12.) Dr. Altobello stated that both were denied as the requisite criteria (shown
above) were not met. (R-6; R-14.)
Credibility Analysis and Additional Findings
For testimony to be believed, it must not only come from the mouth of a credible
witness, but it also has to be credible in itself. It must elicit evidence that is from such
common experience and observation that it can be approved as proper under the
circumstances. See, Spagnuolo v. Bonnet, 16 N.J. 546 (1954); Gallo v. Gallo, 66 N.J.
Super. 1 (App. Div. 1961). A credibility determination requires an overall assessment of
the witness’s story in light of its rationality, internal consistency, and the manner in which
it “hangs together” with the other evidence. Carbo v. United States, 314 F.2d 718, 749
(9th Cir. 1963). Also, “‘[t]he interest, motive, bias, or prejudice of a witness may affect his
credibility and justify the [trier of fact], whose province it is to pass upon the credibility of
an interested witness, in disbelieving his testimony.’” State v. Salimone, 19 N.J. Super.
600, 608 (App. Div.), certif. denied, 10 N.J. 316 (1952) (citation omitted).
The most important witness, M.S., is no longer a minor child, having turned
eighteen prior to the hearing. In the past, M.S. had shown herself to me to be less than
credible, but at this hearing, I found her to present an honest, if somewhat biased, account

OAL DKT. NO. EDU 10144-22
12
of her high school experience in the Hamilton Township school system. She is very soft
spoken and appears shy.9
Most of M.S.’s testimony was coached by her mother, despite numerous attempts
to direct D.S. to avoid leading questions and/or not to use questions to present her own
testimony. Much of what M.S. stated on direct examination she willingly contradicted on
cross. For example, she complained of no positive adult relationships at Steinert, making
her relationship with Belfiore all the more important. She then spoke highly of Steinert
teachers Cooper and Leon and how much they have helped her. She admitted to poor
academic performance while at HHS-West and improved academic performance at
Steinert, and I so FIND. Further, M.S. stated that had she stayed on the path she was on
at HHS-West, she doubts she would be where she is today—on the Honor Roll, headed
to college in the fall.
Significantly, M.S. understands that the decision made by respondent to keep her
at Steinert rather than permitting her enrollment at HHS-West is the result of the actions
she took while a student at HHS-West, and I so FIND. While M.S. admits that such
actions were not worth it, she did not acknowledge as untrue the claims of racial
discrimination, bigotry, bullying, and harassment brought on her behalf against teachers
and administrators of HHS-West.
Between them, D.S. and M.S. only presented evidence of one incident in which a
decision of respondent could be classified as unfair, that being M.S.’s testimony that in
February 2022, she received greater discipline for the same violations of school policy
than was given to other male, white students. But there was no evidence introduced to
corroborate her hearsay statement, no certification, no eyewitnesses, not even cross-
examination of respondent’s witness. Further, a review of the record in EDS 01033-22,
shows that M.S. was suspended in February 2022, for twenty-two days, not forty-five days
(as she now recalls).
9 While on the witness stand, M.S. was repeatedly asked to speak up.

OAL DKT. NO. EDU 10144-22
13
Similarly, on multiple occasions, D.S. stated that Superintendent Rocco acted out
of personal spite when he denied the request to enroll M.S. at HHS-West but presented
no evidence to support those speculative statements. Though the specific Board policy
and regulation on which respondent based the decision in this matter is known to
petitioner, she presented no evidence (or argument) to support the claim that the Board
is acting in violation of that policy.
I FIND as FACT that petitioner presented no evidence to prove that the decision
of respondent to deny her request to enroll M.S. at HHS-West for the remainder of the
2022–2023 school year was unlawful, arbitrary, capricious, unreasonable, and/or in
violation of Board policy.
LEGAL ANALYSIS AND CONCLUSIONS
Actions within a school board’s authority, including the adoption and
implementation of policies for the assignment of students, are entitled to a presumption
of correctness and will not be upset by the courts unless there is an affirmative showing
that a decision is arbitrary, capricious or unreasonable. Thomas v. Bd. of Educ. of Morris
Twp., 89 N.J. Super. 327, 332 (App. Div. 1965), affirmed, 46 N.J. 581 (1966). In general,
a board of education’s actions are entitled to a presumption of lawfulness and good faith.
D.S. argues that the Board did not meet its burden of proving that its decision was
not arbitrary and capricious,10 but where board actions are challenged, the challenger—
D.S., not the Board—bears the burden of proving that such actions were unlawful,
arbitrary, capricious or unreasonable. Schuster v. Bd. of Educ. of the Twp. of Montgomery,
96 N.J.A.R.2d (EDU) 670, 676 [citing Schnick v. Westwood Bd. of Educ., 60 N.J. Super.
448 (App. Div. 1960), and Quinlan v. North Bergen Twp. Bd. of Educ., 73 N.J. Super. 40
(App. Div. 1962)].11
10 See Ltr. Br. of Petitioner (March 13, 2023), at 1.
11 D.S. is critical of respondent for relying on cases which were decided as much as sixty years ago, calling
such “insanity.” See Br. of Petitioner at 3. Though dated, all cases cited here were determined to still be
good law.

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14
In matters involving the exercise of a board of education’s discretion, the scope of
the Commissioner’s review is “not to substitute his judgment for that of those who made
the evaluation but to determine whether they had a reasonable basis for their
conclusions.” Kopera v. West Orange Bd. of Educ., 60 N.J. Super. 288, 296 (App. Div.
1960). Our courts have held that “[w]here there is room for two opinions, action is not
arbitrary or capricious when exercised honestly and upon due consideration, even though
it may be believed that an erroneous conclusion has been reached.” Bayshore Sewage
Co. v. Dep’t of Envtl. Prot., 122 N.J. Super. 184, 199–200 (Ch. Div. 1973), aff’d., 131 N.J.
Super. 37 (App Div. 1974). To satisfy the arbitrary and capricious standard, petitioner
must prove that respondent acted in either bad faith or in disregard to the circumstances.
As the factual record detailed above makes clear, respondent has a strong basis
for its consistent decision to refuse to enroll M.S. at HHS-West. Notwithstanding that
M.S. claims to have matured and admits that her behavior as a freshman and sophomore
at HHS-West was inappropriate, she was disciplined for fighting in school just three
months ago. Any evidence that M.S. is without friends and more prone to being
disciplined at Steinert is overwhelmed by her disciplinary record while at HHS-West.
The argument D.S. makes regarding the adult support M.S. will experience if she
transfers to HHS-West is compelling as M.S. has maintained a productive relationship
with her HHS-West guidance counselor and has reconsidered her prior claims against
Principal Smith. But the preponderance of the evidence is that M.S. has performed better
academically at Steinert than she did at HHS-West and has established at least two
positive relationships with Steinert staff members. Other than speculating that
Superintendent Rocco is acting out of personal animus, petitioner introduced no evidence
to support her claim that respondent’s decision was arbitrary and/or capricious.
Both D.S. and M.S. expressed the need to put the past behind them and move on,
but rather than accept the predictable consequences of their actions while M.S. was
enrolled at HHS-West,12 they continue to use the DOE process to try and reverse the
reasonable decisions of respondent to keep M.S. and her mother away from the staff and
12 As described above, both mother and daughter were cited by the HHS-West administration for
inappropriate conduct on school grounds.

OAL DKT. NO. EDU 10144-22
15
administrators who they claim treated both of them in a bigoted, discriminatory, harassing
and bullying manner. Notwithstanding that all HHS-West personnel were cleared of
wrongdoing; M.S. cannot dispute that she felt strongly enough in 2021 about her alleged
mistreatment that her mother took legal action to protect her. In the words of Board
counsel, “it is confounding that [D.S.] would insist on having [M.S.] assigned to” HHS-
West.
The administration must by law and Board policy act in the best interest of the
student, and there is no evidence that it is in M.S.’s best interest to return to HHS-West
rather than complete her senior year at Steinert. Further, the administration must also
act in the best interest of its employees, who are responsible for the education of
hundreds of other students, not just M.S. Petitioner made seven separate claims against
staff and administrators of HHS-West, alleging that those staff members bullied,
harassed, and discriminated against, M.S. Even at the hearing in this matter, M.S.
repeated her claims of racial discrimination by HHS-West administrators (and added a
claim against the former Steinert principal), an unintentional reminder of the hardship to
its employees that respondent seeks to prevent:
Placement [of M.S.] at West would invite a resurgence of the
claims of harassment and conflict between D.S., M.S., and the
school officials. It would be a hardship to the district
administration and staff members at West, previously
defendants against allegations of racism that they vehemently
dispute, to have to scurry to accommodate M.S. with a
program as she moves toward graduation all the while on
eggshells that any decision to discipline M.S. or conflict
between M.S. and her peers would again result in their
professional reputations being attacked as they have been
numerous times before.
[Ltr. Br. of Respondent (March 13, 2023), at 6.]
Though petitioner may disagree with the decision made by Dr. Altobello,
disagreement alone is not sufficient to prove that his decision was arbitrary, capricious
and/or in violation of Board policy. I CONCLUDE that petitioner has not carried the
burden of proving that the action of respondent in denying the request to enroll M.S. at

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16
HHS-West for the remainder of the 2022–2023 school year was arbitrary, capricious
and/or in violation of Board policy.
ORDER
For the reasons set forth above, I ORDER that the appeal of D.S. on behalf of M.S.
of the decision of respondent Hamilton Township Board of Education to deny an
attendance zone waiver and/or to refuse to enroll M.S. at Hamilton High School West for
the remainder of the 2022–2023 school year is hereby DENIED 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.

OAL DKT. NO. EDU 10144-22
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.
March 30, 2023
DATE TRICIA M. CALIGUIRE, ALJ
Date Received at Agency:
Date Mailed to Parties:
TMC/nn

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18
APPENDIX
WITNESSES
For petitioner
M.S.
D.S.
For respondent
Dr. James Altobello
EXHIBITS
For petitioner
P-1 Email from M.H. (now M.S.) to Dr. James Altobello, dated September 21,
2022
For respondent
R-1 Petition of Appeal, dated July 18, 2022
R-2 Answer of Board, dated August 15, 2022
R-3 Not introduced
R-4 Not introduced
R-5 Zone Waiver Request Email, dated October 20, 2021
R-6 Zone Waiver Denial, dated October 29, 2021
R-7 Emails, dated October 29, 2021, through November 3, 2021
R-8 Letter from Board Counsel to Petitioner, dated November 5, 2021
R-9 Email from E. Gonzalez to Petitioner, dated October 29, 2021
R-10 Emails from Petitioner, dated May 3 through May 5, 2022
R-11 Email from Dr. Altobello, dated May 3, 2022
R-12 Zone Waiver Request, dated June 13, 2022
R-13 Not introduced
R-14 Email from Board Counsel to Petitioner, dated June 21, 2021
R-15 District Policy 5120

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R-16 District Regulation 5120
R-17 Not introduced

19