Divine Kidz Academy and Preschool and K.F., on behalf of minor child, K.F. v. Trenton Board of Education, Mercer County, 10/13/26 (#408-26E)

408-26E
OAL Dkt. No. EDU 14808-26
Agency Dkt. No. 370-08-26
New Jersey Commissioner of Education
Order on Emergent Relief
Divine Kidz Academy and Preschool and K.F., on
behalf of minor child, K.F.,
Petitioners,
v.
Trenton Board of Education, Mercer County,
Respondent.
The record of this emergent matter, the sound recording of the hearing held at the Office of
Administrative Law (OAL), and the recommended Order of the Administrative Law Judge (ALJ) have been
reviewed and considered.
Upon review, the Commissioner concurs with the ALJ that petitioners have failed to demonstrate
entitlement to emergent relief pursuant to the standards enunciated in Crowe v. DeGioia, 90 N.J. 126,
132-34 (1982), and codified at N.J.A.C. 6A:3-1.6.
Accordingly, the recommended Order denying petitioners’ application for emergent relief is
adopted. This matter shall continue at the OAL with such proceedings as the parties and the ALJ deem
necessary to bring it to closure.
IT IS SO ORDERED.
COMMISSIONER OF EDUCATION
Date of Decision: 	October 13, 2026
Date of Mailing: 	October 13, 2026

New Jersey is an Equal Opportunity Employer
ORDER DENYING
EMERGENT RELIEF
OAL DKT. NO. EDU 14808-26
AGENCY REF. NO. 370-08-26
DIVINE KIDZ ACADEMY AND PRESCHOOL
AND K.F. ON BEHALF OF K.F.,
Petitioners,
v.
TRENTON BOARD OF EDUCATION,
Respondent.
Robert K. Devaney, Esq., for petitioners (Florio, Perrucci, Steinhardt, Cappelli &
Tipton, LLC, attorneys)
Adam S. Herman, Esq., for respondent (Adams, Lattiboudere, Croot, Herman,
attorneys)
BEFORE JEFFREY N. RABIN, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Petitioners, Divine Kidz Academy & Preschool (“Divine”) and K.F. on behalf of K.F.
(together, petitioners), seek emergent relief in the form of an Order requiring respondent,
Trenton Board of Education, to perform and provide a “due diligence evaluation” of
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW

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2
whether Divine Kidz Academy may be eligible to contract to provide preschool services
to the respondent school district.
The within motion for emergent relief was filed by petitioners on August 20, 2026,
with the New Jersey Department of Education (DOE), Office of Controversies and
Disputes. The motion for emergent relief was transmitted to the Office of Administrative
Law (OAL), where it was filed on September 1, 2026. N.J.S.A. 52:14F-1 to -13.
A telephone conference was held on September 3, 2026. An emergent hearing in
this matter took place on September 8, 2026, and the record closed on that date.
Petitioner K.F. did not attend the emergent hearing.
FINDINGS OF FACT
Based on petitioners’ petition for emergent relief, respondent’s letter brief in
opposition to petitioners’ emergent petition, and the parties’ oral arguments, and solely
for the purpose of deciding this emergent appeal, I FIND the following to be the
undisputed facts:
1, Petitioner Divine is a certified private preschool provider. Respondent is a
New Jersey public school district that receives New Jersey Preschool Education
Aid (PEA). The recently enacted New Jersey Universal Preschool and
Kindergarten Act (NJPK Act) (P.L. 2025, c.100; S.3910/A.5717) requires that
districts that receive PEA funding make every effort to identify and partner with
local preschool and kindergarten providers. By directive to PEA districts dated
January 21, 2026, Department of Education Assistant Commissioner of Education
Katrina McCombs directed PEA districts to “demonstrate these due diligence
efforts to establish partnerships with all eligible private providers.”
2. Respondent has not provided evidence of due-diligence efforts to evaluate
Divine.

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LEGAL ANALYSIS
The issue is whether petitioners have proven by a preponderance of the credible
evidence that they met the standard for emergent relief, and that they are entitled to relief.
N.J.S.A. 18A:6-9 authorizes the Commissioner to consider controversies between
parents and a school board, and a school and a school board. The OAL is the appropriate
venue for such appeals and the DOE properly forwarded this matter to the OAL for this
emergent appeal to be heard.
Pursuant to N.J.A.C. 6A:3-1.6 and the case of Crowe v. DeGioia, 90 N.J. 126
(1982), a petitioner must show by a preponderance of the evidence that the four
prongs/prerequisites set forth therein had been met in the petitioner’s favor in order to be
granted emergent relief. A petitioner bears the burden of proving the four prongs for
emergent relief. B.W. ex rel. D.W. v. Lenape Reg’l High Sch. Dist., EDS 06933-05,
Decision on Emergent Relief (October 5, 2005), https://njlaw.rutgers.edu/OAL/index.php;
see also J.G. ex rel. Q.B. v. Bd. of Educ. of Lakewood, EDU 10073-03, Initial Decision
(December 31, 2003), https://njlaw.rutgers.edu/OAL/index.php; R.D. ex rel. C.D. v.
Willingboro Bd. of Educ., 95 N.J.A.R.2d (EDS) 190.
Per N.J.A.C. 6A:3-1.6 and Crowe, emergent relief may be granted if the judge
determines from the proofs that the following four prongs have been met:
1. The petitioner will suffer irreparable harm if the
requested relief is not granted;
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).]

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4
Respondent argued that petitioners did not meet all four prongs of the Crowe test.
1. The petitioners will suffer irreparable harm if the requested relief is not granted.
Petitioners claimed that there would be irreparable harm without evidencing any
immediate, actual harm. Petitioners claim that students will be set back in their education,
and will be on a lifelong course of inequity. I find these claims to be speculative. Even if
Divine is not chosen to provide preschool services in Trenton, there are fifteen providers
in thirty locations in the Trenton school district that already provide these services and
are available to parents seeking a preschool for their child. Petitioners claimed that
Trenton is an Abbott school district containing at-risk school children; respondent stated
that Trenton is a former Abbott school district, which has already met its requirements by
having thirty free preschools for its at-risk population. Additionally, this speculative future
harm to unnamed future students does not prove any actual harm to Divine itself, the lead
petitioner in this matter. Divine did not claim any harm to its business as a preschool
provider.
“Injunctive relief ‘should not be entered except when necessary to prevent
substantial, immediate and irreparable harm.’” Garden State Equality v. Dow, 433 N.J.
Super. 347, 351 (Law Div. 2013) (quoting Subcarrier Commc’ns, Inc. v. Day, 299 N.J.
Super. 634, 638 (App. Div. 1997)). Merely “[e]stablishing a risk of irreparable harm is not
enough.” ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987). The irreparable
harm must also be non-speculative and must occur in the near and not distant future.
Ibid.
Petitioner K.F. did not attend the emergent hearing, but even in her Certification
she failed to demonstrate substantial, immediate, and irreparable harm. Minor-child K.F.
is presently enrolled in Divine, but even if student K.F. were unable to remain enrolled in
Divine and still wanted to attend preschool, K.F. could enroll her child free of charge in
any of the respondent’s thirty approved preschool sites that are already under contract
with respondent. Enrolling in one of the respondent’s preschools would allow K.F. to still
take advantage of a State-funded preschool. Petitioners stated that there are 100 vacant
seats spread across respondent’s thirty approved preschool sites; there is no claim that

OAL DKT. NO. EDU 14808-26
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K.F. has been denied a seat at any of those approved preschool sites. It is not evidence
of harm that petitioner K.F. is satisfied with Divine and does not wish to move to a different
school in order to continue receiving a free and appropriate preschool education. Finally,
respondent raises a valid argument that K.F. is voluntarily paying high subsidy copays at
Divine; going to another free school would save her that copay.
Finally, the relief sought pursuant to this emergent petition would not address any
alleged harm; merely having respondent go through the exercise of evaluating a school
would not guarantee that respondent would in fact choose to enter into a contract with
Divine for preschool services. In that case, students would have to opt for one of the
respondent’s already approved preschools, the exact position parents are in at the
present time.
I FIND that petitioners offered only speculation regarding harm, and failed to prove
any substantial, immediate or irreparable harm. Accordingly, I CONCLUDE that
petitioners failed to prove that there would be any irreparable harm and CONCLUDE that
petitioners failed to prove that the first prong of the Crowe test for emergent relief had
been met in favor of petitioners.
2. The legal right underlying the petitioner’s claim is settled; and
3. The petitioner has a likelihood of prevailing on the merits of the underlying claim.
Petitioners argued the second and third prong together, claiming that petitioners
had a substantial likelihood of success based on well-settled legal rights. However, the
statute they rely on, the New Jersey Universal Preschool and Kindergarten Act (P.L.
2025, c.100; S.3910/A.5717), has only recently been enacted, and petitioners have cited
no regulations effectuating that law or caselaw interpreting that law, and therefore I cannot
consider that statute to yet be “well-settled law.” In fact, the basis for the within appeal is
a letter to PEA districts dated January 21, 2026, from Department of Education Assistant
Commissioner of Education Katrina McCombs, giving guidance on navigating the NJPK
Act. McCombs Memorandum, Jan. 21, 2026. That letter directed PEA districts to
demonstrate due-diligence efforts. Petitioners failed to establish that this letter from an
assistant commissioner carried the weight of statutes, regulations, and caselaw. The

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statute itself does not require or set forth protocols for a “due diligence evaluation.”
Petitioners further argued that New Jersey law permitted parents to choose their own
preschools, but failed to support that claim with a legal citation.
As stated under the first-prong analysis, it is also questionable whether there is
any relief that can be granted in the within case. Even if respondent is directed to do a
written due-diligence evaluation, there is nothing that absolutely requires respondent to
contract with Divine to provide preschool services. The letter-directive merely requires
the analysis. Accordingly, even if ordered to perform a due-diligence evaluation, there is
nothing that guarantees that petitioners will receive the relief they seek: having Divine as
a preschool provider funded in part by Trenton.
Respondent set forth that boards of education enjoy wide statutory discretion, and
their decisions may not be overturned unless found to be arbitrary, capricious, or
unreasonable. See Thomas v. Morris Bd. of Educ., 89 N.J. Super. 327, 332 (App. Div.
1965); Kopera v. West Orange Bd. of Educ., 60 N.J. Super. 288, 294 (App. Div. 1960).
Respondent also correctly argued that the NJPK Act requires districts to “make every
effort to collaborate with local ready, willing, and able private providers and Head Start
programs within their district and neighboring communities that meet all requirements of
N.J.A.C. 6A:13A.” McCombs Memorandum, Jan. 21, 2026, at 1–2. Nowhere did the
NJPK Act require the respondent to continuously add unnecessary partnerships when its
universal preschool capacity is full, and local demand is already met. Respondent was
already assisting “at-risk” students in accordance with the NJPK Act through its numerous
preexisting partnerships, the aforementioned fifteen different private providers and Head
Start programs at thirty sites. This evidences that respondent has made diligent efforts
to collaborate with private providers and Head Start programs. I must also agree with
respondent’s argument based on legislative intent that the NJPK Act was intended for
“expanding districts” that are currently struggling to meet the demands of their
surrounding community. The NJPK Act was not meant to force arguably unnecessary
partnerships, but rather to ensure that the early-childhood-education demand across New
Jersey was met. Trenton is not an expanding school district at this time.

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Petitioners have not shown by a preponderance of the credible evidence that their
claims are settled or that there is a likelihood of prevailing on the merits of the underlying
claim. Therefore, I CONCLUDE that petitioners failed to show that the second and third
prongs of the Crowe test for emergent relief have been met in favor of petitioners.
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.
Neither party made a persuasive argument as to a balancing of the equities; as the
first three prongs of the Crowe test have not been met in petitioners’ favor, no further
analysis is required.
Therefore, I CONCLUDE that petitioners failed to show by a preponderance of the
credible evidence that any of the four prongs of the Crowe test for emergent relief have
been met in their favor. I CONCLUDE that petitioners failed to prove that they are entitled
to emergent relief in this matter.
ORDER
Accordingly, I ORDER that the petitioners’ application for emergent relief be and
hereby is DENIED.

OAL DKT. NO. EDU 14808-26
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This order on application for emergent relief 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. The final decision shall be issued
without undue delay, but no later than forty-five days following the entry of this order. If
the Commissioner of the Department of Education, does not adopt, modify or reject this
order within forty-five days, this recommended order shall become a final decision on the
issue of emergent relief in accordance with N.J.S.A. 52:14B-10.
September 9, 2026
DATE JEFFREY N. RABIN, ALJ
Date Received at Agency:
Date Mailed to Parties:
JNR/onl

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APPENDIX
Briefs/Exhibits
For petitioners:
• Petition Appeal and exhibits, dated August 20, 2026
For respondents:
• Letter-brief in Response to Petition for Emergent Relief, dated September
8, 2026