C.B., on behalf of minor child, J.B., v. Board of Education of the City of Newark, Essex County, 2/20/2020, (#69-20)

New Jersey Commissioner of Education
Final Decision
C.B., on behalf of minor child, J.B.,
Petitioner,
v.
Board of Education of the City of Newark,
Essex County,
Respondent.
Synopsis
Pro se petitioner appealed the respondent Board’s decision to retain her son in the seventh grade for the
2017-2018 school year. 	C.B. was informed that J.B. would be held back during a meeting on
September 12, 2017. The class placement determination was made after J.B. was removed from special
education classes at the end of the 2016-2017 school year, at the insistence of C.B. and against the advice
of school district personnel. The within appeal was filed on February 20, 2019. Petitioner had filed an
earlier petition on the same topic, but withdrew it after appearing for an emergent hearing in
October 2018. 	The Board filed a motion for summary decision, contending that the within petition is
time-barred under the 90-day rule, N.J.A.C. 6A:3-1.2(i) and should be dismissed.
The ALJ found, inter alia, that: there are is no genuine issue as to any material fact here, and the case is
ripe for summary decision; under N.J.A.C. 6A:3-1.3(i), a petitioner shall file a petition no later than the
90 th day from the date of receipt of the notice of a final order, ruling, or other action by the district
board of education, individual party, or agency that is the subject of the case; it is uncontested that
the petition herein was filed on February 20, 2019, some 17 months after petitioner was informed
that her son would be retained in the seventh grade; further, the matter is moot as J.B. is now in the
9th grade for the 2019-2020 school year. The ALJ concluded that the petition should be dismissed in its
entirety. 	Accordingly, the ALJ granted the Board’s motion for summary decision, and dismissed the
petition.
Upon careful and independent review of the record and the ALJ’s recommended decision, the
Commissioner concurred with the ALJ’s determinations and adopted the Initial Decision of the OAL as
the final decision in this case. The petition was dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It
has been neither reviewed nor approved by the Commissioner.
February 20, 2020
69-20

OAL Dkt. No. EDU 04507-19
Agency Dkt. No. 315-12/18
New Jersey Commissioner of Education
Final Decision
C.B., on behalf of minor child, J.B.,
Petitioner,
v.
Board of Education of the City of
Newark, Essex County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed and considered.1
Upon review, the Commissioner concurs with the ALJ that the petition is time-barred
pursuant to N.J.A.C. 6A:3-1.3(i), which requires petitions to be filed no later than 90 days from the date of
receipt of the action that is the subject of the case, and Giannetta v. Bd. of Educ. of Egg Harbor,
Commissioner Decision 147-05 (April 25, 2005), which holds that negotiations do not toll the time
limitation.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in this
matter and the petition is hereby dismissed.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: 	February 20, 2020
Date of Mailing: 	February 20, 2020
1 Exceptions filed by petitioner were not timely pursuant to N.J.A.C. 1:1-18.4 and were therefore not considered by
the Commissioner. 	Respondent timely filed a reply, arguing that petitioner’s exceptions merely reassert facts
already presented below.
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36
(N.J.S.A. 18A:6-9.1).

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 04507-19
AGENCY DKT. NO. 315-12/18
C.B. ON BEHALF OF MINOR CHILD, J.B.,
Petitioner,
v.
BOARD OF EDUCATION OF THE CITY OF
NEWARK, ESSEX COUNTY,
Respondent.
______________________________
C.B. on behalf of J.B, petitioner pro se
Bernard Mercado, Esq. for respondent
Record Closed: December 20, 2019 	Decided: January 16, 2020
BEFORE ERNEST M. BONGIOVANNI, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
The appeal was transmitted to the Office of Administrative Law (OAL) by the
NJSP, where it was filed on April 1, 2019, 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. I held a prehearing conference
at the OAL with both parties attending on June 5, 2019, and entered a prehearing order
on June 12, 2019. A hearing date was scheduled for September 30, 2019. The parties

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attempted to resolve the matter which resulted in the hearing being adjourned to
December 20, 2019.
Newark Public Schools submitted a Motion for Summary Decision, Certification
and Brief in support of same on December 6, 2019. 	Petitioner C.B. filed a timely
response on December 12, 2019, and argument on the motion was heard on December
20, 2019. Testimony by C.B. and by J.B, which would be permitted to be supplemented
at the continued hearing, was also given. 	The record on the motion was closed that
date.
MOTION UNDER CONSIDERATION
The respondent requests that summary decision be granted and that the petition
of C.B. on behalf of J.B. be dismissed for the following reasons; the petition which
complains that J.B. was wrongfully retained at elementary school 7th grade for the 2017-
2018 year is time barred under the 90-day rule, and C.B. contributed to J.B. being
retained that year because, in June 2017,3 she removed J.B. from special education
which he had been receiving from Newark Public Schools since 2012. 	The Prehearing
Order records that the issues to be resolved at the hearing were: 1) Was J.B., currently
16, wrongfully denied advancement to the 8 th grade for the 2017-2018 school year? 2)
Was C.B.’s petition on behalf of J.B. timely? 3) What effect did C.B.’s revocation of
consent for Special educational services have on J.B.’s ability to advance? 4) Are there
any other rights of J.B. that were violated? 5) What has J.B.’s status as an 8 th grader in
2018-2019 and if graduated as a 9 th grader in 2019-2020 have to the issues complained
of?
FACTUAL DISCUSSION
Based on the pleadings of the petitioner and upon facts up of the motion papers
as to facts that are not contested, or are incontestable, and argument and testimony of
the petitioner on the motion, I rely upon the following relevant facts.
3 Petitioner claims she did so in May 2017, not June 2017.

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J.B. 	was 	removed 	from 	Special 	education 	classes 	provided 	for 	at 	J.B.’s
elementary school at C.B.’s insistence in either May or June or 2017. 	C.B. was
informed at a meeting at the school held September 12, 2017 that C.B. was being
retained in the seventh grade for the duration of the 2017-2018 school year. 	C.B. and
representatives of the elementary school discussed in the Fall of 2017 the possibility of
J.B. advancing to the 8 th grade in February of 2018; however, the advancement did not
take place.
On or about July 19, 2018, C.B. on behalf of J.B. filed a Petition of Appeal (“first
Petition”) with the Department of Education, (Respondent’s motion, Exhibit A, Notice of
Filing), which was referred to the OAL on or about September of 2018. After appearing
for an emergent hearing on that petition in October,2018 C.B. withdrew the petition.
She insists she did so without knowing she was doing so, and that she was told by the
Administrative Law Judge (ALJ) that her withdrawal would be without prejudice. Further
she believes she was “tricked misled manipulated” by the ALJ, along with the attorney
for the Newark School Boards, which induced her to withdraw her claims. 	She claims
she was “taken advantage of” because of her “ignorance.” 	When she realized that her
withdrawal was with prejudice, C.B. filed another petition (“current petition”) with the
Commissioner of Education on February 20, 2019 (Respondent’s Exhibit B, Notice of
Filing ) wherein she repeated the allegations of the first petition.
Because the respondent does not argue that this matter has already been
litigated, and therefore cannot be heard again, I shall not address that possibility. 	For
the same reason, I shall also not address the possibility that the petitioner does not
state a claim upon which proper relief may be granted (except for certain ancillary
issues which I shall address) because J.B. is now in the middle of the 9 th grade and
C.B.’s claim addresses his failure to advance from the seventh grade. Further, because
it is not at all clear to what extent C.B.’s decision to withdraw J.B. from special
education had on the decision to retain him in 7 th grade, and not enough facts have
been advanced upon on which it could be decided, I shall not address respondent’s
second theory that C.B. had no right to complain about the decision. 	Therefore, I shall
only address the narrow question of whether the current petition filed in February 2019

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is a time bar to C.B.’s complaint that J.B. was wrongfully retained in the seventh grade
for the 2017-2018 year.
ANALYSIS AND CONCLUSIONS OF LAW
N.J.A.C. 1:1-12.5(b) provides that summary decision should be rendered “if the
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.” Our regulation mirrors R. 4:46-2(c), which
provides 	that 	“[t]he 	judgment 	or 	order 	sought 	shall 	be 	rendered 	forthwith 	if 	the
pleadings, depositions, answers to interrogatories and admissions on file, 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 a judgment or order as a matter of
law.”
If there is no genuine issue as to any material fact, a moving party is entitled to
prevail on a motion for summary disposition as a matter of law. 	Brill v. The Guardian
Life Insurance Co. of America, 142 N.J. 520, 540 (1995). 	The purpose of summary
decision is to avoid unnecessary hearings and their concomitant burden on public
resources. Under the Brill standard, a fact-finding hearing should be avoided “when the
evidence is so one-sided that one party must prevail as a matter of law.” Id. The motion
judge must “consider whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party…are sufficient to permit a
rational fact finder to resolve the alleged disputed issue in favor of the non-moving
party. 	Brill, 142 N.J. at 523. 	And even if the non-moving party comes forward with
some evidence, the forum must grant summary decision if the evidence is “so one sided
that [the moving party] must prevail as a matter of law. Id. at 536 (citation omitted).
Under N.J.A.C. 6A:3-1.3(i), a petitioner shall file a petition no later than the 90th
day from the date of receipt of the notice of a final order, ruling, or other action by the
district board of education, individual party, or agency that is the subject of the case. As
case law makes clear, such a time limitation confers due process, is both meaningful

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and reasonable, and provides finality in education matters, which negotiations do not
toll. 	Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 583–88 (1983). 	As such,
this time limitation has long withstood challenge. 	See, e.g., Nissman v. Bd. of Educ. of
Long Beach Island, 272 N.J. Super. 373, 381–82 (App. Div. 1994), certif. denied, 137
N.J. 315 (1994) (where the court stated that the time limitation is not inherently arbitrary
or capricious, and to rule otherwise would deprive district boards of education the
security of the rule). 	Moreover, negotiations do not toll this time limitation. 	See, e.g.,
Giannetta et al. v. Bd. of Educ. of Egg Harbor, No. #147-05, Comm’r Decision (April 25,
2005), https://www.nj.gov/education/legal/commissioner/ (where the Commissioner of
Education explicitly stated, citing Kaprow, 131 N.J. at 588, that attempts to resolve a
claim through negotiation with a board of education do not negate receipt of adequate
notice or toll the running of the time limitation).
The above-recitation of the uncontested or indisputable essential facts make this
matter ripe for summary decision. 	J.B. was held back in the seventh grade by action
taken between the time J.B. was removed from special education in May or June 2017
and September 12, 2017 when C.B. by her own claims she was first informed of that
decision. 	Assuming arguendo, that the “first petition” is relevant in its first raising the
claim that J.B was wrongly retained, I FIND that C.B. would have had to have filed that
claim with the Commissioner of Education on or before December 11, 2017. 	However,
petitioner did no such thing. 	In fact, her own petition and response to the motion for
summary decision indicate she used the time between the original decision to retain
J.B. in the 7th grade to attempt to negotiate with the school’s representatives to have
J.B. advance to the 8th grade by February 2018. 	However, as indicated in the above
cited case law, negotiations to not toll this time limitation. 	Thus, even if there was any
validity to C.B.’s claim that she was “tricked” into withdrawing that petition it was time
barred as it was filed on July 19, 2018, seven months after the 90-day time limitation.
Turning to the current petition, which again repeats the claim that J.B. was
wrongfully retained in the seventh grade for the 2017-2018 year, it is uncontroverted
that it was filed with the Commissioner of Education on February 20, 2019, 17 months
after C.B. was informed on September 12, 2017 that J.B. was being retained in the

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seventh grade. 	Petitioner has no special right or privilege to file a petition 14 months
beyond the 90-day limitation simply because she feels she “was taken advantage of” or
for whatever reason, didn’t know that she had to act within the governing law on the
subject matter. 	I FIND that petitioner’s claim against Newark Public schools for their
decision to retain C.B. in the seventh grade for the 2017-2018 year violated J.B.’s rights
or was otherwise unlawful, is plainly time barred by N.J.A.C. 6A:3-1.3(i).
Further, this claim should be dismissed because it is moot. 	It is uncontroverted
that J.B. was retained in the seventh grade for the 2017-2018 school year. 	J.B. is now
in the 9 th grade of the 2019-2020 school year. A hearing on this matter cannot have any
practical effect since it would not be reasonable to promote him to the 10 th grade by
“skipping” a year without the benefit of the academics that other 9 th graders are getting.
I also FIND this matter is not appropriate for hearing based on the limited and narrow
exception to the general doctrine of mootness since promotion and retention issues are
challenged with sufficient regularity to reserve judicial review for live controversies
where such relief is available.
There remains the ancillary issues which can be gleaned from C.B.’s pleadings.
They are at best a jumble of vague ideas and notions, and like the claim of wrongful
retention issue, appear, if they are cognizable claims, to be time barred at well. 	These
ancillary claims are best summarized in C.B.’s description of the relief she seeks on
page 4 of her written response to the motion for summary decision. As stated therein 1.
J.B. “did not receive the aggressive counseling” and J.B.’s school transcripts that he
was classified for special education be changed to general education as he was
misclassified” 2. 	All parties should be “held accountable for their actions.” 	3. 	Her
petitions took “so long to be heard.” 4. J.B. should “receive the aggressive counseling.”
5. C.B. says “no” to J.B. attending “small group instructions or a reading intervention”.
Claims 2 and 3 both fail to state a claim or cause of action upon which relief may
be granted and must therefore any portion of the Petition which restates this claim must
be dismissed. 	The first part of claim 1, and claims 4 and 5 do not relate to anything in
the Second Petition, but rather involve issues that were discussed during settlement

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negotiations after this matter was referred to the OAL. 	The second part of claim 1,
wherein petitioner seeks to have the special education classification in J.B.’s student
records removed is also clearly time barred for the same reasons as stated above as
the classification for J.B. concerned actions taken by respondent between 2012, when
he first started receiving special education and May or June 	of 2017, when he was
removed from that classification.
Accordingly, I CONCLUDE as a matter of undisputed fact and law that the
Petition in its entirety should be DISMISSED.
ORDER
For the reasons set forth above, the motion for summary decision filed by the
respondent Newark Public Schools is and the same be hereby GRANTED and the
Petition of Appeal DISMISSED.
I 	hereby 	FILE 	my 	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
Environmental Protection 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.

8
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, 4 th 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.
January 16, 2020 	________________________________
DATE 	ERNEST M. BONGIOVANNI, ALJ
Date Received at Agency: 	1/16/20
Mailed to Parties:
id

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APPENDIX
List of Moving Papers
For Petitioner:
None
For Respondent:
R-1 	Notice of Filing July 19, 2018
R-2 	Notice of Filing February 26, 2019