J.S., on behalf of minor child, J.S. v. Board of Education of the Township of Cherry Hill, Camden County, 1/22/2024, (#60-24)

60-24
OAL Dkt. No. EDU 13843-23
Agency Dkt. No. 335-12/23
New Jersey Commissioner of Education
Final Decision
J.S., on behalf of minor child, J.S.,
Petitioner,
v.
Board of Education of the Township of
Cherry Hill, Burlington County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
and the audio recording of the OAL hearing have been reviewed and considered. The parties
did not file exceptions.
Upon such review, the Commissioner concurs with the ALJ that petitioner failed to
demonstrate entitlement to emergent relief pursuant to the standards enunciated in Crowe v.
DeGioia, 90 N.J. 126 (1982), and codified at N.J.A.C. 6A:3-1.6.
Additionally, the Commissioner notes the ALJ’s finding that, based upon representations
made by counsel for both parties during prehearing conferences, there are no other issues to
be decided and the petition should be dismissed.

2
Accordingly, the Initial Decision of the OAL is adopted as the final decision in this matter
for the reasons stated therein. Having received no objections, the petition of appeal is hereby
dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: January 22, 2024
Date of Mailing: January 24, 2024
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.

New Jersey is an Equal Opportunity Employer
INITIAL DECISION DENYING
EMERGENT RELIEF
OAL DKT. NO. EDU 13843-23
AGENCY DKT. NO. 335-12/23
J.S. ON BEHALF OF J.S., A MINOR
CHILD,
Petitioner,
v.
BOARD OF EDUCATION OF THE
TOWNSHIP OF CHERRY HILL, CAMDEN
COUNTY,
Respondent.
Lloyd D. Henderson, Esq., appearing for petitioner (Law Office of Lloyd D.
Henderson and Associates, attorneys)
Patrick F. Carrigg, Esq., appearing for respondent (Lenox, Socey, Formidoni,
Giordano, Carrigg, Lang & Casey, LLC, attorneys)
Record Closed: December 21, 2023 Decided: December 22, 2023
BEFORE KIMBERLEY M. WILSON, ALJ:
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW

OAL DKT. NO. EDU 13843-23
2
STATEMENT OF THE CASE
Petitioner, J.S. (J.S. parent) on behalf of J.S., a minor child (J.S. child or J.S.
student), moves for emergent relief, seeking permission to return to Carusi Middle School
(CMS), a school within respondent Board of Education of the Township of Cherry Hill,
Camden County (the Board or the District) with safety protections in place to allow her to
continue her education. The Board denies that it has prevented J.S. child from attending
school and that CMS is not safe for J.S. child to attend school.
PROCEDURAL HISTORY
On or around December 11, 2023, J.S. parent filed a verified petition and request
for emergent relief with the Commissioner of the Department of Education, Office of
Controversies and Disputes (DOE). On December 13, 2023, DOE transmitted this matter
to the Office of Administrative Law (OAL) as a contested case seeking emergent relief.
N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13. On December 19, 2023, the Board
provided the Administrative Law Judge (ALJ) a brief and certification in response to J.S.
parent’s request for emergent relief. The ALJ attempted to resolve the matter with the
parties during status conferences on December 19, 2023, and December 20, 2023. The
hearing was held on December 21, 2023, and the record closed that day.
The request for emergent relief is now ripe for adjudication.
FACTUAL DISCUSSION AND FINDINGS
The following FACTS are not in dispute, and so I FIND:
1. J.S. student is a student at CMS. (Pet. ¶ 1.)
2. J.S. student has an Individualized Education Program (IEP), which provides
speech therapy only. (IEP at 1.)

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3. On or around September 27, 2023, J.S. student’s parents emailed J.S.
student’s teachers, indicating that J.S. student has an autism spectrum
disorder. (Certification of Neil Burti, Principal (Burti Cert.) ¶ 3.) J.S. student
is not classified for autism spectrum disorder. (Ibid.)
4. On or around October 23, 2023, J.S. student’s parents emailed Steve
Delaney (Delaney), CMS guidance counselor, that another CMS student
(Student X1) told J.S. student multiple times that Student X likes J.S. student
romantically, but J.S. student rejected Student X. J.S. parent advised J.S.
student not to speak to Student X anymore. (Id. ¶ 4.) According to J.S.
student’s parents, Student X has said "she would starve herself just to be
with [J.S. student]." (Ibid.) Student X "is harassing our daughter and it may
seem like a simple crush for anyone on the outside looking in, however, we
have to consider that [J.S. student] is autistic. “We realized that pulling
[Student X] to the office and notifying her parents may be all you can do &
at this point in time we feel it is a must. . . . It is disruptive to [J.S. student’s]
time there at [CMS]." (Ibid.)
5. On or around October 23, 2023, Delaney interviewed J.S. student based on
her parents’ email. (Id. ¶ 5.) With Constance Spencer (Spencer)2, Delaney
interviewed Student X, who was told not to approach J.S. student. (Ibid.)
6. On or around October 23, 2023, Delaney emailed J.S. student’s parents,
indicating that the situation had been addressed. (Id. ¶ 6.)
7. On or around October 26, 2023, J.S. parent emailed Delaney expressing
concerns about J.S. student’s safety at CMS and Student X’s potential for
retaliating against J.S. student. (Id. ¶ 7.) J.S. parent requested that the
District change Student X’s schedule, as J.S. and Student X had four core
classes together. (Ibid.) J.S. parent reiterated that they advised J.S.
student to distance herself from Student X. (Ibid.)
1 The other student is referred to as Student X to maintain her confidentiality, as she is not a party to this
matter.
2 Spencer is CMS’s anti-bullying specialist.

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8. Delaney emailed J.S. student’s parents to arrange a telephone call. (Ibid.)
9. On or around October 30, 2023, Delaney called J.S. student’s parents. (Id.
¶ 8.) During that telephone call, J.S. student’s parents again requested that
the District change Student X’s schedule. (Ibid.) Delaney offered to change
J.S. student’s schedule instead. (Ibid.) J.S. student’s parents refused this
offer, indicating that in their mind, J.S. student was a victim. (Ibid.)
10. On or around November 28, 2023, J.S. student reported to Delaney that
Student X kissed her twice at CMS on November 20, 2023, and November
27, 2023. (Id. ¶ 9.)
11. Student X denied kissing J.S. student. (Id. ¶ 10.) Both students provided
written statements, and the District notified parents for both students. (Ibid.)
12. On or around November 29, 2023, J.S. student’s parents met with the CMS
campus police officer to complete a police report. (Id. ¶ 11.) J.S. student’s
parents also scheduled a meeting with Delaney and Dr. Julia Benavides
(Benavides) for November 30, 2023. (Ibid.)
13. On or around November 30, 2023, J.S. student’s parents sent an email to
the District, cancelling the meeting with Delaney and Benavides. (Id. ¶ 12.)
14. On or around November 30, 2023, J.S. student’s parents completed a HIB3
338 form and delivered it to CMS. (Id. ¶ 13.) Burti emailed the District’s
anti-bullying specialist4 to advise of the HIB form. (Ibid.) The HIB
investigation is pending because of the police complaint and investigation.
(Ibid.)
15. On or around December 8, 2023, the District changed Student X’s schedule
based on a request from Student X. (Id. ¶ 17.)
3 “HIB,” is an acronym for harassment, intimidation and bullying under the Anti-Bullying Bill of Rights Act.
See N.J.S.A. 18A:37-14.
4 It is not clear from the record whether Spencer is also the District’s anti-bullying specialist.

OAL DKT. NO. EDU 13843-23
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16. On or around December 11, 2023, Benavides left a voicemail message for
J.S. student’s parent to inquire about J.S. student’s well-being and when
she would be returning to school. (Id. ¶ 18.) Benavides also attempted to
reschedule the November 30, 2023 meeting. (Ibid.)
17. J.S. student has not attended school since November 29, 2023, when J.S.
parent removed J.S. child from CMS for her safety and protection. (Pet. ¶
2.)
18. In the petition, J.S. parent seeks the following relief: (i) J.S. student is
permitted to return to CMS with safety protections in place to continue her
free and appropriate public education; (ii) legal fees awarded to J.S.
parent’s counsel; and (iii) any other relief deemed equitable and just. (Pet.
2.)
Testimony
The following is not a summary of all testimony but an encapsulation of the
testimony relevant to whether emergent relief is appropriate here.
For petitioner
J.S. parent is J.S. student’s father. J.S. student is twelve years old and in the sixth
grade. J.S. student last attended an elementary school in the District, where she had one
teacher and one class. In middle school, J.S. student has to change classes. J.S. parent
said that J.S. student is adjusting fairly well to middle school, even though she has missed
her school bus home because she was in the wrong area of the school and sat in the
wrong class once.
Around October 2023, J.S. parent learned that Student X was sending J.S. student
love letters, wanting to have a relationship with J.S. student. According to J.S. parent,
Student X told J.S. student and J.S. student’s friends that Student X dreamed that she
and J.S. student were having sex. According to J.S. parent, J.S. student rejected Student

OAL DKT. NO. EDU 13843-23
6
X fourteen times. Student X also told J.S. student that she wanted to die or kill anyone
so that J.S. student would be with her. J.S. parent found these statements concerning,
because J.S. student should not have had to tell Student X fourteen times that J.S.
student did not want a relationship with her.
J.S. parent noted that J.S. student’s autism is such that J.S. student has difficulty
expressing her emotions. J.S. student is always happy and almost child-like. J.S. parent
indicated that he did not know Student X or Student X’s parents, but he was concerned
that Student X would not leave J.S. student alone.
On or around November 28, 2023, J.S. student’s mother received a call from
Constance Spencer, the anti-bullying specialist at CMS, who relayed that Student X
pulled J.S. student into the bathroom and kissed her. J.S. student did not tell her parents
about this conduct; J.S. student’s friends advised her to report the conduct to CMS. J.S.
student’s parents were scared, because in their mind, Student X’s behavior was a sexual
assault5 and her behavior towards J.S. student seemed to be progressing. Spencer told
J.S. student’s parents that they could come to CMS the following day and file a complaint
and that Spencer would assist them with filing that complaint. J.S. parent later testified
that the District did not give them information about the HIB process and that J.S.
student’s parents had to research this process.
J.S. student’s parents completed a HIB form and submitted it to the District, and
they also called the local police to initiate an investigation. They filed a report with CMS
campus police and were told the report would be filed with the Cherry Hill Police
Department.
5 From the evidence presented in the record, the conduct at issue does not appear to rise to the definition
of sexual assault pursuant to N.J.S.A. 2C:14-2, as there is no evidence of sexual penetration or sexual
contact with a victim less than thirteen years old and the actor is four years older than the victim. In addition,
sexual contact is defined as the intentional touching of a victim’s intimate parts for the purpose of degrading
or humiliating the victim or sexually arousing or sexually gratifying the actor. N.J.S.A. 2C:14-1(d). A
person’s intimate parts are sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a
person. N.J.S.A. 2C:14-1(e). There was no evidence presented that Student X touched J.S. student’s
intimate parts when she allegedly kissed J.S. student.

OAL DKT. NO. EDU 13843-23
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The police report has been submitted to the County prosecutor’s office, and J.S.
student’s parents are waiting to learn whether Student X will be charged with any criminal
offenses. J.S. student’s parents did not reschedule the November 30, 2023 meeting with
the District, because they were seeking legal representation at that time.
The District has never told J.S. student’s parents that J.S. student could not attend
CMS. J.S. parent did not know that Student X denied kissing J.S. student, and he also
did not know that Student X’s schedule had been changed at her request. J.S. parent
has never met Student X and does not know her or her mindset.
J.S. parent described an unprofessional interaction that he had with Spencer.
According to J.S. parent, Spencer refused to talk to him or his wife about the incident,
and J.S. parent said that Spencer was dismissive. J.S. student’s parents asked Spencer
questions about Student X, and Spencer would not answer those questions. Spencer
asked J.S. parent how many times J.S. student went to the bathroom each day, and she
offered to allow J.S. student to use the nurse’s bathroom. J.S. student has not been
interviewed by Spencer as part of the HIB investigation, as J.S. student’s parents do not
believe that she is qualified to conduct such an interview.
J.S. student’s parents pulled J.S. student from CMS because they were concerned
for J.S. student’s safety. They are concerned about what other things Student X has
planned for J.S. student. J.S. student’s parents want J.S. student to return to school and
want CMS to keep J.S. student and Student X separated. J.S. student has been keeping
up with her schoolwork through Google classroom; she has not been receiving the speech
supports set forth in her IEP.
The relief that J.S. parent seeks is to have J.S. student free from Student X’s
predatory behavior and separate the students, because CMS will not do so.
For respondent
Benavides is an assistant principal at CMS, in charge of the sixth and eighth
grades. There are 900 students at CMS, about 300 in the sixth grade. She has over twenty

OAL DKT. NO. EDU 13843-23
8
years of educational experience, including over seven years as an assistant principal.
Benavides is familiar with J.S. student and the incident giving rise to the motion for
emergent relief.
Benavides testified that CMS students are not trained on HIB but are told to consult
their guidance counsellor if they are experiencing problems. She described students in
the sixth grade as a curious age, where students are unsure about changing classes and
meeting new friends. Teachers typically have to guide students with making better
choices when they have made mistakes.
Benavides described J.S. student’s allegations as a disputed event, because local
police are investigating, which puts the HIB investigation on hold until a decision is made
about any criminal charges. The decision to pause the HIB investigation came from the
Cherry Hill campus police.
Benavides believes that CMS has offered a safe environment for J.S. student since
November 30, 2023.
Additional Factual Findings
It is the obligation of the fact finder to weigh the credibility of the witnesses before
making a decision. Credibility is the value that a fact finder gives to a witness’ testimony.
Credibility is best described as that quality of testimony or evidence that makes it worthy
of belief. “Testimony to be believed must not only proceed from the mouth of a credible
witness but must be credible in itself. It must be such as the common experience and
observation of mankind can approve as probable in the circumstances.” In re Estate of
Perrone, 5 N.J. 514, 522 (1950). To assess credibility, the fact finder should consider the
witness’ interest in the outcome, motive, or bias. “A trier of fact may reject testimony
because it is inherently incredible, or because it is inconsistent with other testimony or

OAL DKT. NO. EDU 13843-23
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with common experience, or because it is overborne by other testimony.” Congleton v.
Pura-Tex Stone Corp., 53 N.J. Super. 282, 287 (App. Div. 1958).
Having had the opportunity to hear and view both of the witnesses during their
testimony, I accept the testimony of J.S. parent and Benavides as credible. They both
testified consistently and forthrightly about J.S. student and the incident involving Student
X. Accordingly, I FIND the following additional FACTS:
1. J.S. student did not tell her parents about the instances where Student X
allegedly kissed her; J.S. student’s friends advised her to report the conduct
to CMS.
2. J.S. student’s parents completed a HIB form and submitted it to the District,
and they also called the local police to initiate an investigation. They filed a
report with CMS campus police and were told the report would be filed with
the Cherry Hill Police Department.
3. The police report has been submitted to the County prosecutor’s office, and
J.S. student’s parents are waiting to learn whether Student X will be charged
with any criminal offenses.
4. J.S. student’s parents did not reschedule the November 30, 2023 meeting
with the District, because they were seeking legal representation at that
time.
5. The District has never told J.S. student’s parents that J.S. student could not
attend CMS.
6. J.S. parent did not know that Student X denied kissing J.S. student, and he
also did not know that Student X’s schedule had been changed at her
request.
7. J.S. parent has never met Student X and does not know her or her mindset.

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8. Spencer asked J.S. parent how many times J.S. student went to the
bathroom each day, and she offered to allow J.S. student to use the nurse’s
bathroom.
9. Because local police are investigating the incident between J.S. student and
Student X, the HIB investigation is on hold until a decision is made about
any criminal charges. The decision to pause the HIB investigation came
from the Cherry Hill campus police.
10. J.S. student’s parents pulled J.S. student from CMS because they were
concerned for J.S. student’s safety.
11. J.S. student’s parents want J.S. student to return to school and want CMS
to keep J.S. student and Student X separated.
12. J.S. student has been keeping up with her schoolwork through Google
classroom; she has not been receiving the speech supports set forth in her
IEP.
LEGAL ANALYSIS AND CONCLUSIONS
The regulations governing controversies and disputes before the Commissioner of
Education provide that “[w]here the subject matter of the controversy is a particular course
of action by a district board of education . . . [,] the petitioner may include with the petition
of appeal, a separate motion for emergent relief or a stay of that action pending the
Commissioner's final decision in the contested case.” N.J.A.C. 6A:3-1.6(a). The
regulations further provide that the Commissioner may “[t]ransmit the motion to the OAL
for immediate hearing on the motion.” N.J.A.C. 6A:3-1.6(c)(3).
At a hearing for emergent relief, the petitioner must show that they satisfy the
following four standards:
1. The petitioner will suffer irreparable harm if the requested
relief is not granted;

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2. The legal right underlying petitioner's claim is settled;
3. The petitioner has a likelihood of prevailing on the merits
of the underlying claim; and
4. When the equities and interests of the parties are
balanced, the petitioner will suffer greater harm than the
respondent will suffer if the requested relief is not granted.
[N.J.A.C. 6A:3-1.6(b) (citing Crowe v. DeGioia, 90 N.J. 126
(1982)).]
The petitioner must prove each of these standards by clear and convincing
evidence. Garden State Equality v. Dow, 216 N.J. 314, 320 (2013). Arguably, the
standard is a high threshold to meet, and I will address each prong separately.
1. Irreparable harm
As the New Jersey Supreme Court explained in Crowe, “[o]ne principle is that a
preliminary injunction should not issue except when necessary to prevent irreparable
harm.” Crowe, 90 N.J. at 132 [citing Citizens Coach Co. v. Camden Horse R.R. Co., 29
N.J. Eq. 299, 303 (E. & A. 1878)]. Indeed, the purpose of emergent relief is to “prevent
some threatening, irreparable mischief, which should be averted until opportunity is
afforded for a full and deliberate investigation of the case.” Ibid. [quoting Thompson ex
rel. Bd. of Chosen Freeholders v. Paterson, 9 N.J. Eq. 624, 625 (Sup. Ct. 1854)].
“Irreparable harm is shown when money damages cannot adequately compensate
plaintiff's injuries.” Hornstine v. Twp. of Moorestown, 263 F. Supp. 2d 887, 911 (D.N.J.
2003) (citing Sampson v. Murray, 415 U.S. 61, 90 (1974)). “More than a risk of irreparable
harm must be demonstrated.” Cont’l Grp., Inc. v. Amoco Chemicals Corp., 614 F.2d 351,
359 (3d Cir. 1980). “The requisite for injunctive relief has been characterized as a clear
showing of immediate irreparable injury . . . or a presently existing actual threat; [an
injunction] may not be used simply to eliminate a possibility of a remote future injury, or a
future invasion of rights, be those rights protected by statute or by the common law.” Ibid.

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J.S. parent has not provided clear and convincing evidence of any immediate
irreparable injury to J.S. student. Whether Student X will approach and potentially harass
J.S. student in the future is speculative, and while, as a parent, I understand J.S. parent’s
concern that J.S. student may be harassed again, there is no tangible evidence in the
record indicating the same. J.S. parent admitted that he does not know Student X and
has never met her. There is no evidence in this record of any communication between
J.S. student and Student X since J.S. student reported to CMS that Student X allegedly
kissed her. Student X’s schedule has been changed, potentially minimizing her
opportunity to harass J.S. student. There is no present, actual threat here, just J.S.
parent’s fear of a future incident between J.S. student and Student X.
Counsel for J.S. parent argues that J.S. student’s missed educational time
constitutes immediate irreparably injury. “There can be no reasonable argument that a
person classified in special education needs daily supervision and instruction. Each day
is important as the student progresses during the limited school year. Every day [J.S.
student] misses sets her back in her progress towards successfully completing and
fulfilling her IEP.” Pl. Br. 2. First, it is important to note that considerations under the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1401, are not at play here.
The issue at hand, as J.S. parent raised them, do not pertain to J.S. student’s IEP; it is
simply whether the District has addressed the safety concerns that J.S. student’s parents
have raised.6
Second, and more importantly, the District has not barred or prevented J.S. student
from attending CMS. J.S. student’s parents have unilaterally decided to keep J.S. student
from attending CMS, and even when the District attempted to contact J.S. student’s
parents on December 11, 2023, to discuss issues, J.S. student’s parents were already
seeking legal counsel, rather than responding to the District. Counsel for J.S. parent
argues J.S. student is constructively being prevented from attending CMS; I note there is
no legal authority, whether statute, case law or regulation, supporting this argument. Pl.
6 J.S. parent has sought legal fees and other equitable relief in the petition. Because this is not an IDEA
matter, those requests for relief are denied.

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Br. 2. The lack of legal authority underpinning this argument merely underscores its
specious nature.
Finally, J.S. parent testified that J.S. student is keeping up with her schoolwork
through Google classroom. While Google classroom is not a complete substitute for an
in-person classroom experience, J.S. student has not missed out on her education in its
entirety.
J.S. parent has not sustained his burden to show by clear and convincing
evidence that J.S. student has suffered irreparable harm. Accordingly, I CONCLUDE that
J.S. parent has not shown that J.S. student suffered irreparable harm.
2. Settled Legal Right.
Next, emergent relief “should be withheld when the legal right underlying plaintiff’s
claim is unsettled.” Crowe, 90 N.J. at 133 (citing Citizens Coach Co., 29 N.J. Eq. at 304–
05). As noted previously, J.S. parent wants for J.S. student to return to CMS and wants
CMS to keep J.S. student and Student X separated.
Here, what exactly happened between J.S. student and Student X in November
2023 is not settled. The parties are awaiting a decision from the County prosecutor’s
office on whether criminal charges will be brought against Student X based upon a police
investigation. The HIB investigation to determine whether J.S. student was subjected to
harassment, intimidation and bullying has been placed on hold until any charging
decisions have been made. Any decisions on whether J.S. student and Student X should
be separated while attending CMS will have to wait until decisions on whether Student X
will be charged with any criminal charges and the outcome of the HIB investigation.
Counsel for J.S. student has cited to no legal authority indicating that the District could or
should have handled this situation differently and provided no proof, let alone clear and
convincing evidence, that it has a right to the relief it seeks. Therefore, I CONCLUDE
that J.S. parent has not shown a legal right underlying his claim.
3. Likelihood of Success on the Merits

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J.S. parent has not demonstrated that he is likely to succeed on the merits of the
underlying claim. Under this emergent relief prong, “a plaintiff must make a preliminary
showing of a reasonable probability of ultimate success on the merits.” Crowe, 90 N.J.
at 133 [citing Ideal Laundry Co. v. Gugliemone, 107 N.J. Eq. 108, 115–16 (E. & A. 1930)].
This typically “‘involves a prediction of the probable outcome of the case based on each
party’s initial proofs, usually limited to documents.” Brown v. City of Paterson, 424 N.J.
Super. 176, 182–83 (App. Div. 2012) [quoting Rinaldo v. RLR Inv., LLC, 387 N.J. Super.
387, 397 (App. Div. 2006)].
Because I have found that J.S. parent has not shown a legal right underlying his
claim, it logically follows that there is not a likelihood of success on the merits. J.S. parent
has not provided any clear and convincing evidence or legal argument showing that he is
likely to prevail against the District.
Counsel for J.S. parent argues, “[J.S. parent] has the likelihood of prevailing on the
merits as [CMS] has demonstrated little if any interest addressing the needs of non-white
students and students with disabilities.” Pl. Br. 2. The facts in the record show otherwise.
The District responded to concerns J.S. student’s parents raised in October 2023, and
the parties believed that those concerns had been resolved. Once J.S. student reported
the alleged incident with Student X in November 2023, the District attempted to work with
J.S. student’s parents, which included an anticipated meeting with Benavides on
November 30, 2023. J.S. student’s parents canceled that meeting and never
rescheduled, even after Benavides contacted J.S. student’s parents on December 11,
2023. There is no evidence in this record supporting this argument that the District treated
J.S. student differently because she is non-white or disabled.
Counsel for J.S. parent has not provided any clear and convincing evidence or
legal authority showing that J.S. parent has a reasonable probability of ultimate success
on the merits, and I CONCLUDE that J.S. parent has not shown a reasonable probability
of ultimate success on the merits.

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4. Balancing the Equities
The fourth and final emergent relief standard involves “the relative hardship to the
parties in granting or denying relief.” Crowe, 90 N.J. at 134 [citing Isolantite Inc. v. United
Elect. Radio & Mach. Workers, 130 N.J. Eq. 506, 515 (Ch. 1941), mod. on other grounds,
132 N.J. Eq. 613 (E. & A. 1942)].
The only evidence presented here regarding relative hardship to the parties
pertains to J.S. student, who has missed school solely based on her parents’ decision to
keep her from attending CMS since November 29, 2023. Despite the argument that she
has been constructively suspended from CMS, an argument that lacks a legal foundation,
there is no hardship to J.S. student in denying emergent relief. J.S. student may return
to CMS at any time to continue her education.
Requiring the District to grant the emergent relief that J.S. parent seeks, namely
ensuring that J.S. student and Student X remain separate, imposes greater harm on the
District than it does J.S. student. Again, it is important to note that there is a pending
charging decision regarding Student X’s conduct, along with a HIB investigation. These
decisions should be made and investigations completed before the District determines
what, if any, remedial steps should be taken. Requiring a District to ensure that students
remain separate when charging decisions have not been made and an HIB investigation
is not completed is burdensome on the District.
I CONCLUDE that the Board will suffer greater harm should emergent relief be
granted than J.S. student if the requested relief is not granted.
J.S. parent’s dissatisfaction with the status of this process is not a basis for
emergent relief. J.S. student’s parents began this process, seeking criminal charges
against Student X, and they will have to wait until the process is completed before the
District can determine whether Student X’s alleged conduct constituted harassment,
intimidation and bullying. Once that HIB investigation is completed, then the District can
determine whether separating J.S student and Student X is appropriate and to what

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16
degree they will be separated, among any other remedial measures the District deems
appropriate.
Based upon the foregoing, I CONCLUDE that the petitioner has failed to meet all
of the requirements set forth in N.J.A.C. 6A:3-1.6(b) warranting an order for emergent
relief in this matter.
ORDER
Accordingly, I ORDER that the petitioner’s application for emergent relief be and
hereby is DENIED. From representations made by counsel for the parties during
prehearing conferences, I understand that there are no other issues to be decided on the
underlying petition, and accordingly, 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.

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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.
December 22, 2023
DATE KIMBERLEY M. WILSON, ALJ
Date Received at Agency:
Date Mailed to Parties:
KMW/am

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APPENDIX
WITNESSES
For petitioner
J.S. parent
For respondent
Dr. Julia Benavides
EXHIBITS
For petitioner
Motion papers including Petition, Letter Brief, dated December 11, 2023;
and Certification of Service
For respondent
Response papers, including: (i) Letter Brief, dated December 19, 2023; (ii)
Certification of Neil Burti, Principal, dated December 18, 2023; and (iii) J.S.
student’s IEP.