Board of Education of the City of Englewood, Bergen County v. Board of Education of the Borough of Englewood Cliffs, Bergen County and New Jersey State Department of Education, 6/18/19, (#156-19)

156-19
New Jersey Commissioner of Education
Final Decision
Board of Education of the City of Englewood,
Bergen County,
Petitioner,
v.
Board of Education of the Borough of
Englewood Cliffs, Bergen County, and
New Jersey State Department of Education,
Respondents.
Synopsis
The dispute herein concerns the payment of tuition for students from the Englewood Cliffs School District who
attend the Academies@Englewood (Academies), a magnet school program that began in 2002 and is based at
Dwight Morrow High School (Dwight Morrow), the Englewood Board of Education’s (Englewood) only public
high school. Since 1965, students from Englewood Cliffs have attended high school in Englewood under a send-
receive agreement between Englewood and Englewood Cliffs – which does not operate a high school of its own.
From 2002 until 2013, up to twenty-five Englewood Cliffs students attended the Academies each year. During
that period of time, Englewood reported these pupils as “choice students” on its Application for State School
Aid; therefore, the New Jersey State Department of Education (Department), and not Englewood Cliffs, paid
tuition to Englewood for the education of these students. 	The Department recognized this anomaly in 2013,
instructed Englewood to report the students in question as “received students” under the send-receive
relationship going forward, and moved to stop providing Choice aid to Englewood for the Englewood Cliffs
students who attend Academies. The Department filed a motion for summary decision in 2016, which was held
in abeyance pending resolution of discovery matters; Englewood Cliffs filed opposition to the motion in 2018.
The ALJ found, inter alia, that: there are no material facts at issue, and the matter is ripe for summary decision;
the fundamental dispute here is whether Englewood Cliffs students attending the Academies are “choice
students” entitled to state aid under the Interdistrict Public School Choice Program; the purpose of the school
choice program is to allow students to be educated in a district they otherwise would not be entitled to attend for
free; here, Englewood Cliffs students are already entitled to attend Dwight Morrow for free under the send-
receive agreement; the Department’s determination that Englewood Cliffs students attending the Academies are
not “choice students” and therefore not entitled to Choice aid is correct; and Englewood Cliffs’ arguments that
1) the Supreme Court decision in Board of Education of Englewood Cliffs v. Board of Education of Tenafly, 170
N.J. 323 (2002) obligates the State to pay for Englewood Cliffs students to attend the Academies, and 2) that
the Department’s determination that the subject students are not “choice students” amounts to unlawful
rulemaking under the Administrative Procedure Act, are without merit. 	Accordingly, the ALJ granted the
Department’s motion for summary decision and dismissed the petition.
Upon 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 with prejudice.
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.
June 19, 2019

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OAL Dkt. No. EDU 16167-15
Agency Dkt. No. 345-11/14
New Jersey Commissioner of Education
Final Decision
Board of Education of the City of Englewood,
Bergen County,
Petitioner,
v.
Board of Education of the Borough of
Englewood Cliffs, Bergen County, and
New Jersey State Department of Education,
Respondents.
The record of this matter, the Initial Decision of the Office of Administrative Law
(OAL), the exceptions filed by the Borough of Englewood Cliffs (Englewood Cliffs), and the
Department of Education’s (Department) reply thereto have been reviewed and considered. 	The
dispute in this matter concerns the payment of tuition for Englewood Cliffs students attending the
Academies@Englewood (Academies), a magnet school program based at Dwight Morrow High
School (Dwight Morrow) in Englewood. 	The Administrative Law Judge (ALJ) found that
Englewood Cliffs students attending the Academies are not Choice students; therefore, Englewood
Cliffs is required to pay tuition for those students pursuant to the pre-existing sending/receiving
agreement between the two districts.
As a preliminary matter, the Commissioner notes that the Initial Decision addresses
the Department’s arguments that the matter is moot in light of the Department’s decision to release
Choice aid for Englewood Cliffs students attending the Academies for the 2013-14, 2014-15 and
2015-16 school years and that, to the extent a viable claim might remain despite the payment of

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Choice Aid for those years, it is procedurally defective because it is essentially a Petition for a
Declaratory Ruling that was not filed as such. The Department did not contest the ALJ’s conclusions
on these issues in its reply to Englewood Cliffs’ exceptions. The Commissioner agrees with the ALJ
that the matter is not moot due to the recurring need to determine who will pay for Englewood Cliffs
students to attend the Academies. 	The Commissioner also agrees that, given that the dispositive
issue has been squarely presented and adequately briefed, and the lack of any reasonable prospect
that either party will change its position if Englewood Cliffs is required to refile this matter as a
Petition for Declaratory Ruling, the matter should proceed to a decision based on the record as it
stands.
Englewood Cliffs has filed exceptions to the ALJ’s determination, which largely
repeat arguments made in its filings before the ALJ. First, Englewood Cliffs argues that whether the
Department provided Choice Aid for Englewood Cliffs students prior to 2013 intentionally or
inadvertently is a material dispute of fact that the ALJ incorrectly resolved without a hearing.
Englewood Cliffs contends that the Department directed the districts to report these students as
Choice students1 and that, accordingly, the ALJ should not have accepted the Department’s
1 On this point, Englewood Cliffs’ exceptions cite to “Cross-Petition Ex. D.” This exhibit includes an email from
the Department to Englewood Cliffs, dated December 17, 2013, stating, “Since Englewood Cliffs and Englewood
City have a formal send/receive relationship, Englewood Cliffs high school students attending Englewood City must
be reported by Englewood Cliffs as sent to Englewood City. Englewood City must report these students as received
from Englewood Cliffs. The students should not be reported as Choice students.” Therefore, this exhibit does not
support Englewood Cliffs’ argument. However, Englewood Cliffs’ brief in opposition to the Department’s motion
for summary decision, which makes this same argument, cites to a different document: Exhibit B to the Cross-
Petition, which includes an email from Englewood to the Department, dated October 9, 2013, stating, “Previously,
NJSMART has directed me to code the Englewood Cliffs residents in our Choice academy as Choice students,” and
an October 10, 2013 email response from the Department to Englewood, stating, “While we review this question,
please report these students the same way that you’ve reported them in the past. 	Please follow NJSMART
instructions.” The Commissioner presumes, for the sake of argument, that Englewood Cliffs’ exceptions intended to
refer to Exhibit B rather than Exhibit D, but disagrees with Englewood Cliffs that this document proves prior
instructions by the Department regarding the reporting of Englewood Cliffs students attending the Academies, as the
description of the alleged instructions comes from Englewood staff and no other document is attached or referenced
to show actual instructions from the Department. Moreover, regardless of any alleged prior instructions, this matter
presents a purely legal question and the fact of the Department’s prior instructions is irrelevant to the resolution of
that question.

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representation that it only learned of the practice of classifying the students as Choice students during
a review of the Choice Program in the 2013-2014 school year.
Next, Englewood Cliffs argues that the applicable statutes and regulations provide for
Choice Aid in these circumstances, citing to N.J.A.C. 6A:12-1.2(d), which provides, “District boards
of education currently in a sending/receiving relationship are eligible to participate in the Choice
Program unless otherwise legally prohibited,” and N.J.A.C. 6A12-1.2(a), which provides, “A Choice
district may accept non-resident students into an educational program in the Choice district at the
expense of the State.” 	Englewood Cliffs argues that these regulations mean it is eligible to
participate in the Choice Program, and that the Choice district (Englewood) may accept non-resident
students (from Englewood Cliffs) into a program in the Choice district (the Academies) at the
expense of the Department. 	Englewood Cliffs further claims that because there is a competitive
admissions process for the Academies, students are not admitted as a matter of right, and thus
Englewood Cliffs cannot designate the Academies as the high school for its students.
Englewood Cliffs argues that the Department has an independent obligation to fund
Englewood Cliffs students with Choice Aid under the New Jersey Supreme Court’s decision in
Board of Education of Englewood Cliffs v. Board of Education of Englewood, 170 N.J. 323 (2002).
In particular, Englewood Cliffs relies on the concurrence in that case, which indicates that the State
Board of Education bears the primary responsibility for providing financing to alleviate racial
imbalance, id. at 345, as well as the Department’s subsequent provision of funding to implement
programs to address racial imbalance in Englewood, to conclude that the Department has assumed
the obligation to finance the operation of the Academies.
Finally, Englewood Cliffs argues that the Department has violated the requirements
of the Administrative Procedure Act. 	Specifically, Englewood Cliffs disputes the ALJ’s findings
regarding three prongs of the standard for determining whether administrative rulemaking is
required, as set forth in Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313 (1984). First,

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Englewood Cliffs argues that the ALJ incorrectly found that the Department’s action impacted a
narrow and select group, because the action – although only applied in this matter to Englewood and
Englewood Cliffs – could apply to any district in the Choice Program or in a sending/receiving
relationship. 	Second, Englewood Cliffs argues that the ALJ incorrectly found that the action was
clearly and obviously inferable from the enabling statutory authorization, because the language of the
enabling statutes and regulations provides for Choice aid in these circumstances. Third, Englewood
Cliffs notes that the ALJ found that the question of whether the action was a material and significant
change from a past agency position was “a mixed bag,” but argues that this factor should weigh in
favor of requiring rulemaking because the Department allowed these students to be classified as
Choice students for ten years.
In its reply, the Department argues that whether it made a mistake by providing
Choice Aid in the past is not a material fact because the matter to be resolved is only the ongoing
status of Englewood Cliffs students who attend the Academies. 	The Department further contends
that Englewood Cliffs used the Choice Program improperly as a matter of law, and that the
Department acted appropriately to correct it. As such, the Department contends that this matter was
appropriately resolved by summary decision.
The Department argues that Englewood Cliffs students are not Choice students
because they are entitled to go to Dwight Morrow, including the Academies, for free based on the
sending/receiving agreement between Englewood and Englewood Cliffs. The Department notes that
the Academies is “an academic program of Dwight Morrow High School,” as indicated on the
Academies’ own website. Furthermore, the website treats Englewood and Englewood Cliffs students
identically in its description and admission procedures, stating that the “Interdistrict Public School
Choice Program allows students who live outside Englewood and Englewood Cliffs to apply” to the
Academies, and that “Englewood and Englewood Cliffs residents are exempt” from the requirement
that applicants must have been enrolled in a public school for at least one year prior to enrollment at

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the Academies. 	In other words, the Department argues, Englewood Cliffs students admitted to the
Academies are effectively Englewood resident students attending a program at their resident high
school and are not converted to Choice students merely because the program has admissions criteria.
The Department further notes that the Supreme Court’s decision in Englewood, supra, does not
obligate the Department to fund the Academies, and argues that other legislative appropriations to
support integration efforts in Englewood are entirely separate from appropriations for the Choice
Program.
Lastly, 	the 	Department 	maintains 	that 	it 	has not 	violated 	the 	Administrative
Procedures Act because its correction of Englewood Cliffs’ reporting error is a directive expressly
provided by or obviously inferable from the enabling statutory authorization. The Department argues
that it is obvious from the language and design of the Choice Program that Choice Aid is not
available for students who are attending their designated high school. 	The Department further
contends that Englewood Cliffs has not proven a contrary “clear past agency position” and that
correcting statutory noncompliance of which the Department was previously unaware does not
constitute a material change in position.
Upon a comprehensive review of the record, the Commissioner agrees with the ALJ’s
findings and determination of this matter. 	The case presents the purely legal question of whether
Englewood Cliffs students attending the Academies are entitled to Choice Aid pursuant to the
applicable statutes and regulations; therefore, the ALJ’s disposition of this case via summary
decision was proper.
The Commissioner is also in accord with the ALJ’s determination that Englewood
Cliffs students attending the Academies are not Choice students. 	While N.J.A.C. 6A:12-1.2(d)
provides that districts participating in a sending/receiving relationship may also participate in the
Choice Program, this provision should not be strained beyond its plain meaning: that districts such as
Englewood may receive students from Englewood Cliffs through the established sending/receiving

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relationship while also enrolling Choice students from other districts, just as Englewood Cliffs
students may attend school in Englewood through the sending/receiving relationship or another
participating district through the Choice Program. 	The regulatory permission to participate in both
types of relationships does not in any way suggest that the Choice Program relieves a district of its
obligation to pay tuition under a sending/receiving agreement simply because the receiving district
also accepts Choice students from other districts. 	Moreover, pursuant to N.J.S.A. 18A:36B-20(a)
and N.J.A.C. 6A:12-1.3, for purposes of the Choice Program, the “sending district” is defined as
the district or school that the student “is required by law to attend.” Englewood Cliffs students
are required by law to attend high school in Englewood, making Englewood the sending district
for Englewood Cliffs students for purposes of the Choice Program. 	It is illogical, and
inconsistent with the purpose of the Choice Program, for Englewood to be both the Choice
sending district and the Choice receiving district. 	Just as Englewood cannot report Englewood
students attending the Academies as Choice students – because they are resident students
attending a program within their resident high school – Englewood Cliffs cannot report students
attending the Academies as Choice students, because they are effectively resident students
attending a program within their designated high school.2
The Commissioner agrees with the ALJ’s conclusion that the Supreme Court’s
decision in Englewood, supra, does not obligate the State to provide Choice Aid to Englewood Cliffs
students attending the Academies. The majority opinion specifically notes that “no issue concerning
funding of the proposed academy partnership is before the Court.” Englewood, supra, at 344. 	As
such, the decision cannot be the law of the case for this matter. 	The concurrence relied on by
Englewood Cliffs for the proposition that the State bears primarily responsibility for providing
2 This conclusion does not, however, mean that Englewood may not apply admissions criteria to Englewood Cliffs
students applying to the Academies. It merely means that Englewood Cliffs students are in the same position as
Englewood students for purposes of the Choice Program: both are ineligible to receive Choice Aid when attending
the Academies.

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financing holds limited weight compared to the majority opinion, and is balanced by a second
concurrence that objects to any conclusion that the State Board’s statements in previous decisions
about its “power and responsibility to direct such measures as are necessary to remedy segregation in
the schools [are] pronouncements on responsibility for the cost of such remedial actions.” Id. at 345.
Moreover, the fact that the State has provided other types of funding for the Academies does not
establish any obligation to provide Choice Aid for Englewood Cliffs students attending the
Academies
The Commissioner also agrees with the ALJ that the Department’s decision to correct
the reporting of Englewood Cliffs students attending the Academies did not require formal
rulemaking. 	N.J.S.A. 18A:36B-20(a) and N.J.A.C. 6A:12-1.3 very clearly define a sending
district, for purposes of the Choice Program, as the district that the student “is required by law to
attend.” 	Englewood Cliffs has designated Englewood as the district that Englewood Cliffs
students are required to attend for high school and, as such, Englewood is their “sending district”
for purposes of the Choice Program. To read the statutes and regulations of the Choice Program
to allow Englewood to be both the Choice sending district and the Choice receiving district for
Englewood Cliffs students attending the Academies, such that it could receive Choice Aid from
the Department for those students, would be an absurd result, and one inconsistent with the goal
of the Choice Program: to increase options for students to attend schools other than the ones that
they would be entitled to attend for free. Englewood Cliffs’ obligation to pay for its students to
attend the Academies pursuant to the sending/receiving agreement is thus clearly and directly
inferable from the enabling statute and regulations. Furthermore, the New Jersey Supreme Court
has held that it is not a material and significant change in administrative policy for an agency to
enforce a law that has not previously been enforced. 	Airwork Service Division v. Director,
Division of Taxation, 97 N.J. 290, 200-01 (1984). While Englewood Cliffs received the benefit

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of its reporting error for fourteen years, the Department is not required to continue to allow that
error.
Accordingly, the Initial Decision is hereby adopted as the final decision in this
matter; summary decision is granted in favor of the Department, and the petition of appeal is hereby
dismissed.
IT IS SO ORDERED.3
COMMISSIONER OF EDUCATION
Date of Decision: 	June 18, 2019
Date of Mailing: 	June 19, 2019
3 This decision may be appealed to the Superior Court, Appellate Division, pursuant to P.L. 2008, c. 36
(N.J.S.A. 18A:6-9.1).

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
GRANTING SUMMARY DECISION
BOARD OF EDUCATION OF THE CITY OF 	OAL DKT. NO. EDU 16167-15
ENGLEWOOD, BERGEN COUNTY, 	AGENCY DKT. NO. 345-11/14
Petitioner,
v.
BOARD OF EDUCATION OF THE BOROUGH
OF ENGLEWOOD CLIFFS, BERGEN COUNTY,
AND NEW JERSEY STATE DEPARTMENT OF
EDUCATION,
Respondent.
______________________________________
Mark Tabakin, Esq., petitioner, (Weiner Lesniak, LLP, attorneys)
Stephen R. Fogarty, Esq., for respondent, Englewood Cliffs Board of
Education (Fogarty and Hara, attorneys)
Jennifer L. Cavin, Deputy Attorney General, for respondent, New Jersey
State Department of Education (Gurbir S. Grewal, Attorney General
of New Jersey, attorney)
Record Closed: September 17, 2019 	Decided: April 2, 2019
BEFORE JEFFREY A. GERSON, ALJ (Ret., on recall):

OAL DKT. NO. EDU 16167-15
2
BACKGROUND
Englewood School District operates one public high school: Dwight Morrow High
School. 	It educates students from Englewood and since 1965, it has been the
designated high school for students from Englewood Cliffs School District, which
chooses not to operate its own. 	Under this send-receive agreement, Englewood Cliffs
students are entitled to attend Dwight Morrow and Englewood Cliffs is obligated to pay
tuition to Englewood for each Englewood Cliffs student that chooses to attend. In 2002,
a magnet school program called Academies@Englewood opened in Dwight Morrow.
Students from Englewood, Englewood Cliffs, and any other school district in the State
can apply for admission. 	Interested students must submit an application and sit for an
entrance exam and interview.
Through a new initiative called the Interdistrict Public School Choice Program,
the 	State 	agreed 	to 	fund 	the 	education 	of 	out-of-district 	students 	that 	attended
Academies@Englewood. 	These students are “choice students.” 	To receive state
funding, school districts must submit an Application for State School Aid. 	The district
must, among other things, report the number of “choice students” being educated in its
district.
From 	2002-2013, 	Englewood 	Cliffs 	students 	(up 	to 	twenty-five 	each 	year)
attended Academies@Englewood. 	Englewood reported these students as “choice
students” and thus the State, not Englewood Cliffs, paid the tuition to Englewood for
their education.
In 2013, the New Jersey Department of Education (the Department) reviewed the
school funding it had distributed for the 2013-14 school year. 	It discovered that
Englewood 	had 	been 	reporting 	Englewood 	Cliffs 	students 	attending
Academies@Englewood 	as 	“choice 	students.” 	Believing 	this 	was 	an 	error, 	the
Department instructed Englewood to report them as “received students” because, in its
view, they attended Dwight Morrow pursuant to the send-receive agreement with
Englewood Cliffs.

OAL DKT. NO. EDU 16167-15
3
The 	Department 	withheld 	$414,225 	in 	aid 	it 	was 	scheduled 	to 	release 	to
Englewood for the 2013-14 school year. 	For the 2014-15 and 2015-16 school years, it
did not provide funding to Englewood for the Englewood Cliffs students that attended
Academies@Englewood. This litigation followed.
PROCEDURAL HISTORY
On 	November 	25, 	2014, 	Englewood 	filed 	a 	Petition 	of 	Appeal 	with 	the
Commissioner of Education. 	It asked that the reduction in the school choice aid for the
2013-14 school year be reversed. 	It also requested an order declaring that Englewood
Cliffs students attending Academies@Englewood be designated as “choice students.”
In the alternative, it asked that Englewood Cliffs be required to pay tuition for its
students under the send-receive agreement.
On December 5, 2014, Englewood Cliffs filed an Answer and a Cross-Petition
against 	the 	Department. 	In 	its 	Cross-Petition, 	it 	sought 	an 	order 	declaring 	that
Englewood Cliffs students attending Academies@Englewood be declared as “choice
students” and that the State is obligated to fund the cost of their education. 	In the
alternative, 	it 	requested 	an 	order 	to 	prevent 	Englewood 	from 	seeking 	tuition
reimbursement.
On October 5, 2015, the Department filed Answers to the Petition and Cross-
Petition. The matter was thereafter transmitted to the Office of Administrative Law as a
contested case and assigned to Hon. Michael Antoniewicz.
On October 7, 2015, the Department informed Englewood that it was prepared to
release $1,242,675 in choice aid for students it educated from Englewood Cliffs for the
2013-14, 2014-15, 2015-16 school years. 	It reiterated its position, however, that
Englewood is not eligible for school choice aid for Englewood Cliffs students that attend
its schools effective July 1, 2016.

OAL DKT. NO. EDU 16167-15
4
On November 30, 2015, Englewood withdrew its Petition of Appeal. 	Englewood
Cliffs continued to pursue its Cross-Petition against the Department. 	On March 29,
2016, the Department filed a Motion for Summary Decision. 	That motion was held in
abeyance for some time pending the resolution of outstanding discovery matters. 	On
February 14, 2018, Englewood Cliffs filed it opposition. 	On April 30, 2018, the
Department filed its reply brief. 	This matter was reassigned to the undersigned on
September 17, 2018.
LEGAL DISCUSSION
The legal issue presented here is whether Englewood Cliffs students attending
Academies@Englewood at Dwight Morrow High School are “choice students” entitled to
State aid under the Interdistrict Public School Choice Program.
Before reaching the merits, however, the Department argues two procedural
grounds on which to dismiss this case.
First, it argues that Englewood Cliff’s Cross-Petition is moot in light of the
decision to release school choice aid to Englewood for the 2013-14, 2014-15, and 2015-
16 school years. 	“An issue is ‘moot’ when the decision sought in a matter, when
rendered, can have no practical effect on the existing controversy.” 	Greenfield v. N.J.
Dep’t of Corrections, 382 N.J. Super. 254, 258-59 (App. Div. 2006). 	“It is firmly
established that controversies which have become moot or academic prior to judicial
resolution ordinarily will be dismissed.” 	Cinque v. N.J. Dep’t of Corrections, 261 N.J.
Super. 242, 243 (App. Div. 1993).
Englewood Cliffs agrees that any request for monetary relief for those school
years are indeed moot. 	Yet there remains the fundamental dispute whether students
from Englewood Cliffs attending Academies@Englewood are “choice students.” 	If they
are, the State must pay for their education. 	If not, Englewood Cliffs has that obligation.
Because the parties do not agree on the answer, there is a controversy, the resolution
of 	which 	will 	determine 	who 	must 	pay 	for 	these 	students 	to 	attend

OAL DKT. NO. EDU 16167-15
5
Academies@Englewood going forward. 	Therefore, as Englewood Cliffs contends this
case is not moot.
This leads directly to the Department’s second ground for dismissal. 	It argues
that to the extent Englewood Cliffs has a viable claim, it is for declaratory relief and as
such, its Cross-Petition is procedurally defective because it was not filed with the
Commissioner as a Petition for Declaratory Ruling. See N.J.A.C. 6A:3-2.1.
Englewood Cliffs fights the characterization that it seeks declaratory relief. Yet in
the requested relief section of its Cross-Petition, it uses the verb “declaring” no less than
three time. 	In any event, even if the Department is correct that the Cross-Petition is
procedurally 	defective, 	any 	defects 	should 	be 	excused. 	See 	N.J.A.C. 	6A:3-1.16
(providing that the rules “may be relaxed or dispensed with by the Commissioner, in the
Commissioner’s 	discretion, 	where 	a 	strict 	adherence 	thereto 	may 	be 	deemed
inappropriate or unnecessary or may result in injustice.”).
This case has been pending since 2015. 	The dispositive issue is squarely
presented in this case; it has been adequately briefed; there are no material issues of
fact; and there is no reasonable prospect that either party will change its position if the
Cross-Petition is dismissed and restyled as a Petition for Declaratory Ruling.

OAL DKT. NO. EDU 16167-15
6
Interdistrict Public School Choice
The Interdistrict Pubic School Choice Program of 1999 and 2010 transformed
public education in the State of New Jersey by expanding children’s access to a free
public education in schools outside of their designated school districts.
In general, before this school choice program, children were entitled to a free
public education in one of two places: either in the schools located in the school district
in which they were domiciled; or, if their school district lacked the necessary educational
facilities, the out-of-district schools designated through a send-receive agreement. See
N.J.S.A. 18A:38-1; N.J.S.A. 18A:38-11.
Parents did have other options for their children’s education. 	Short of moving
into a different school district, they could enroll them in a private school or in a public
school 	that 	accepted 	non-resident 	students. 	Neither 	option, 	however, 	was 	free.
N.J.S.A. 18A:38-3. 	Parents that could not afford to pay tuition or move, therefore, had
little to no choice where their children were educated.
Recognizing the need “to increase options and flexibility for parents and students
in selecting a school that best meets the needs of each student,” the Legislature
empowered the Commissioner of Education to establish the Interdistrict Public School
Choice Program – first as a Pilot Program in 1999 and later on a permanent basis in
2010. N.J.A.C. 6A:12-1.1; N.J.S.A. 18A:36B-16.
This school choice program allows students to attend certain public schools
outside their designated school district at the State’s expense. N.J.A.C. 6A:12-1.2(a). To
be eligible for this program, school districts must apply to become a “choice district.”
N.J.A.C. 6A:12-1.2(b). 	If approved, choice districts can “enroll students across districts
lines in designated schools of the choice district.” N.J.S.A. 18A:36B-16. 	These out-of-
district students that are accepted into a choice district are called “choice students” and
their education is funded entirely by State aid. N.J.A.C. 6A:12-1.3; N.J.A.C. 6A:12-9.1.

OAL DKT. NO. EDU 16167-15
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In addition to increasing choice for students and parents, this program promotes
the added virtues of “improving efficiency through a voluntary redistribution of students
from overcrowded to under-enrolled school districts” and “creating healthy competition
among school districts.” N.J.A.C. 6A:12-1.1.
Englewood School District was one of the 21 original choice districts; today there
are 125 throughout the State. 	See, N.J. Dep’t of Educ., Interdistrict School Choice
Program, https://www.state.nj.us/education/choice/ (last visited Mar. 14, 2019). 	Its
status as a choice district allows Englewood to accept students from outside the district
to attend Academies@Englewood at Dwight Morrow High School.
Students from Englewood Cliffs have attended Academies@Englewood since
the program first started in 2002. 	The question is whether this program relieve
Englewood Cliffs’ of its obligation under the send-receive agreement to fund the
education of its students attending Dwight Morrow.
Neither the enabling statute, N.J.S.A. 18A:36B-16, or the regulations, N.J.A.C.
6A:12 et seq., answer the question in explicit terms. There is but one mention of send-
receive agreements. N.J.A.C. 6A:12-1.2(d) says that “[d]istrict boards of education
currently in a sending/receiving relationship are eligible to participate in the choice
program unless otherwise legally prohibited.” 	This regulation, however, does nothing
more than make Englewood eligible to be a choice district notwithstanding its send-
receive agreement with Englewood Cliffs.
When one looks to the purpose of the school choice program, however, it
becomes clear that it was not meant to cover the students at issue in this case. 	This
program, as mentioned, was designed to open up school districts by allowing students
to be educated in a district they otherwise would not be entitled to attend for free. 	This
goal is in no way advanced if the State pays for Englewood Cliffs students to be
educated at Academies@Englewood because Dwight Morrow is their designated high
school under a send-receive agreement with Englewood. 	In other words, even before
this program, these students were entitled to attend the school of their choice for free.

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8
Englewood 	Cliffs 	argues 	that 	although 	Academies@Englewood 	is 	operated
within Dwight Morrow, it has a competitive admissions process and therefore its
students are not guaranteed admission. 	That may be true, but it is also true for
students 	from 	Englewood. 	No 	one 	argues 	that 	Englewood 	students 	attending
Academies@Englewood are “choice students.” 	It would be anomalous to treat these
students differently because the send-receive agreement puts Englewood students and
Englewood Cliffs students in the same position with respect to public high school
education: each is entitled to attend Dwight Morrow.
Indeed, 	on 	its 	website, 	Academies@Englewood 	consistently 	makes 	this
distinction between Englewood and Englewood Cliffs students on the one hand, and
students 	from 	other 	districts 	on 	the 	other. 	See 	e.g., 	Academies@Englewood,
Admissions, 	www.academies-englewood.org/Admissions.html, 	(last 	visited 	Mar. 	14,
2019) (“The Academies@Englewood serves the children of Englewood and Englewood
Cliffs as well as students from over 30 Bergen County districts and districts outside
Bergen County.”); (“The Interdistrict Public School Choice Program allows students who
live outside Englewood and Englewood Cliffs to apply to Academies@Englewood.”);
(“Englewood and Englewood Cliffs residents are exempt from this requirement.”); see
also 	Academies@Englewood, 	Frequently 	Asked 	Questions, 	www.academies-
englewood.org/2023/Frequently_Asked_Questions_2023.pdf, 	(last 	visited 	Mar. 	14,
2019) 	(“Approximately 	135 	seats 	will 	be 	filled. 	Approximately 	half 	will 	be 	from
Englewood/Englewood Cliffs; the other half from out-of-Englewood.”).
For all these reasons, the Department’s determination that Englewood Cliffs
students attending Academies@Englewood are not “choice students” and therefore not
entitled to State aid is correct.
Englewood Cliffs offers two additional reasons why the State should pay for
these students’ education. 	First, it argues that notwithstanding the school choice
program, the Department has an independent obligation to fund its students attending
Academies@Englewood 	under 	the 	Supreme 	Court’s 	decision 	in 	Bd. 	of 	Educ. 	of

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9
Englewood Cliffs v. Bd. of Educ. of Tenafly, 170 N.J. 323 (2002). Second, it argues that
the 	Department’s 	determination 	is 	invalid 	because 	it 	failed 	to 	follow 	the 	formal
rulemaking procedures required by the Administrative Procedure Act, N.J.S.A. 52-14B-1
to -15. Neither argument, is correct.
Segregation Remediation at Dwight Morrow
First, Englewood Cliffs argues that the Supreme Court’s decision in Bd. of Educ.
of Englewood Cliffs v. Bd. of Educ. of Tenafly, 170 N.J. 323 (2002) (Englewood II)
obligates the State to pay for its students to attend Academies@Englewood. 	Some
background 	information 	on 	the 	long-running 	legal 	dispute 	between 	Englewood,
Englewood Cliffs, and the State Board of Education, is necessary to analyze and
ultimately, reject this claim.
In 	1965, 	Englewood 	and 	Englewood 	Cliffs 	entered 	into 	a 	send-receive
relationship under which Englewood Cliffs agreed to pay tuition to Englewood for each
of its students that chose to attend Dwight Morrow High School. 	It did not take long for
Englewood Cliffs to regret this decision. 	School districts, however, cannot unilaterally
“sever” a send-receive relationship; it must be approved by the Commissioner of
Education. See N.J.S.A. 18A:38-13. In 1977 and 1985, Englewood Cliffs petitioned the
Commissioner to sever the relationship. Englewood II, 170 N.J. at 327, 329. It withdrew
the first petition and the second petition was denied. Id. at 327-29.
During 	this 	period, 	white 	families 	from 	Englewood 	and 	Englewood 	Cliffs
increasingly avoided sending their children to Dwight Morrow. Id. at 330-31. 	Parents
either enrolled their children in private schools or in other districts, most notably Tenafly
School District, that accepted non-residents students on a tuition basis. Ibid. 	Some
suspected that parents avoided Dwight Morrow for racial reasons; others thought it was
because of the quality of education. Id. at 331. 	Either way, it caused Dwight Morrow’s
student population to suffer from severe racial imbalance. Id. at 332-33.

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10
To help remedy this segregation problem, the State Board of Education enjoined
Tenafly and all other school districts from admitting students from Englewood and
Englewood Cliffs on a tuition basis or otherwise. Id. at 333. This injunction remained in
force until 2003. 	There were also efforts to bring magnet and specialty programs to
Dwight Morrow to increase the quality of education and thus make the school more
attractive for students and parents. Id. at 335-35.
In Englewood II, the Supreme Court granted a petition for certification to resolve
this question: what is “the appropriate allocation of specific responsibilities between the
Commissioner of Education and the Englewood School District in relation to the
development and implementation of a voluntary plan that is designed to achieve an
appropriate racial balance and educational quality at Dwight Morrow High School by
means of magnet and specialty schools.” Id. at 325.
In answering this question, the Court held that “the Commissioner and State
Board retain the ultimate responsibility for developing and directing implementation of a
plan to redress the racial imbalance at Dwight Morrow.” Id. at 343.
More importantly the court went on to discuss what was then an emerging
partnership between Englewood and Bergen County Technical School, in which Bergen
Tech would offer some of its academic programs at Dwight Morrow, with the goal “to
significantly diminish the racial imbalance”. Id. at 338-39. Though not mentioned in the
Court’s opinion, this partnership produced Academies@Englewood in September 2002.
The court did not address the potential funding needs for Academies@Englewood.
Indeed, it noted that “no issue concerning funding of the proposed academy partnership
is before the Court.” Id. at 344. 	The Court did, however, make some observations. 	It
recognized that the State had already “accepted responsibility to fund initial start-up
costs in the amount of $ 385,000.” Id. at 344. 	“The amount of long-term funding
required,” the Court predicted, “obviously will depend on the specific costs to be
incurred, the amount of Federal and other public and private grant money available, and
the tuition revenues to be realized.” Ibid.

OAL DKT. NO. EDU 16167-15
11
In concluding, the court invoked optimism. 	It said that the “proposed academy
partnership” appeared “both feasible and affordable” and “we are confident that the
parties will not permit so promising a resolution of Dwight Morrow's racial imbalance to
fail because of disagreement over a fair allocation of funding responsibility.” Id. at 344.
Writing for himself, Justice Stein concurred in a brief opinion to address funding
obligations for the proposed academy. He wrote that although the issue was not
presented in the case, it was his “clear understanding” that the State Board had
acknowledged that it “bears primary responsibility for providing or procuring financing
for any plan designed to alleviate racial imbalance at Dwight Morrow.” Id. at 345 (Stein,
J., concurring).
Justice LaVecchia, also in a solo concurrence, registered her disagreement. 	In
her 	view, 	previous 	statements 	by 	the 	State 	Board 	that 	it 	had 	the 	“power 	and
responsibility to direct such measures as are necessary to remedy segregation in the
schools” did not amount to “pronouncements on responsibility for the cost of such
remedial actions.” Id. at 345 (LaVecchia, J., concurring).
In 	the 	years 	since, 	the 	State 	has 	invested 	23.3 	million 	dollars 	in
Academies@Englewood and the Integration Plan in Englewood. Motion for Summary
Decision, p. 8. 	There is simply nothing in the Court’s opinion, however, that obligates
the State to fund Englewood Cliffs students attending Academies@Englewood.
Administrative Procedure Act
Second, Englewood Cliffs contends that the Department’s determination that its
students 	attending 	Academies@Englewood 	are 	not 	“choice 	students” 	amounts 	to
unlawful rulemaking under the Administrative Procedure Act, N.J.S.A. 52-14B-1 to -15.
In Metromedia Inc. v. Dir., Div. of Taxation, 97 N.J. 313 (1984), the Supreme
Court distilled from precedent a six-factor test to determine when an agency must
comply with the rulemaking procedure of the Administrative Procedure Act. According to

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the Court, “an agency determination must be considered an administrative rule when all
or most of the relevant features of administrative rules are present and preponderate in
favor of the rule-making process.” Id. at 331. These features include whether the
determination:
(1) 	is intended to have wide coverage encompassing a
large segment of the regulated or general public, rather
than an individual or a narrow select group;
(2) 	is intended to be applied generally and uniformly to all
similarly situated persons;
(3) 	is designed to operate only in future cases, that is,
prospectively;
(4) 	prescribes a legal standard or directive that is not
otherwise expressly provided by or clearly and
obviously inferable from the enabling statutory
authorization;
(5) 	reflects an administrative policy that
(i) was not previously expressed in any official and
explicit agency determination, adjudication or rule,
or
(ii) 	constitutes a material and significant change from a
clear, past agency position on the identical subject
matter; and
(6) 	reflects a decision on administrative regulatory policy in
the nature of the interpretation of law or general policy.
[Id. at 331-32].
“These 	relevant 	factors 	can,” 	the 	Court 	explained, 	“either 	singly 	or 	in
combination, determine in a given case whether the essential agency action must be
rendered through rule-making or adjudication.” Id. at 332. 	The Court did acknowledge,
however, that “in many cases the question of whether the agency determination is a rule

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13
or an adjudication is a close one.” Id. at 332. 	The challenger, here Englewood Cliffs,
bears the burden of proving that an agency action falls on the wrong side of that line. In
re N.J.A.C. 7:1B-1.1 Et Seq., 431 N.J. Super. 100, 133 (App. Div. 2013) (noting that
“agency action is presumed valid and a challenger bears the burden of rebutting that
presumption.”).
On 	balance, 	the 	Metromedia 	factors 	weigh 	in 	favor 	of 	a 	finding 	that 	the
Department did not engage in unlawful rulemaking because its determination that
certain students are not eligible for State funding is limited to “a narrow select group,”
and its interpretation is “clearly and obviously inferable from the enabling statutory
authorization” without amounting to “a material and significant change from a clear, past
agency position.” Id. at 331-32.
To start, Metromedia factor (1) is not implicated in this case. 	The Department’s
decision not to fund certain students under the school choice program applies only to “a
narrow select group,” not “a large segment of the regulated or general public.” Id. at
331. 	Its decision, at this time, is limited to Englewood Cliffs students that attend
Academies@Englewood at Dwight Morrow. 	Historically, there are no more than 25
such students each year.
Presumably, and this speaks to Metromedia factor (2), the Department intends to
apply this decision “generally and uniformly to all similarly situated persons.” Id. at 331.
That is, the Department is likely to maintain its position that the State is not obligated to
fund students that attend school in a “choice district” that is also their designated district
under a send-receive agreement. 	On this record, it is not clear how many other
students fit that description; though, if the numbers were considerable, the parties would
have represented as much.
Metromedia factors (3) and (6) are the most easily satisfied. 	The Department’s
decision applies “prospectively” only. Id. at 331. 	It has not sought, and it has not
indicated that it will seek reimbursement from Englewood Cliffs in the amount it paid to
have its students educated at Academies@Englewood. 	In addition, it cannot be

OAL DKT. NO. EDU 16167-15
14
disputed that the Department’s determination “reflects a decision on administrative
regulatory policy in the nature of the interpretation of law.” Id. at 331-32.
In contrast, Metromedia factor (4) is not present here because the Department’s
“directive” is “clearly and obviously inferable from the enabling statutory authorization.”
Id. at 331. The school choice program, as previously explained, was enacted to allow
students to attend school in a district they otherwise would not be entitled to attend for
free because of their domicile. The goal of this program -- to encourage students to
attend free of charge the school best suited for their needs regardless of where it is
located -- is in no way promoted if the State pays for Englewood Cliffs students to
attend a high school they are entitled to attend by virtue of a send-receive agreement.
More to the point, there is nothing in the school choice program to suggest that it was
meant 	to 	displace 	a 	sending 	district’s 	funding 	obligations 	under 	a 	send-receive
agreement.
Finally, 	Metromedia 	factor 	(5) 	is 	a 	mixed 	bag 	because, 	although 	the
Department’s position “was not previously expressed in any official and explicit agency
determination, adjudication or rule,” it also did not represent “a material and significant
change from a clear, past agency position.” Id. at 331. It is true that the Department
unknowingly paid for Englewood Cliffs students to attend Academies@Englewood from
2002-2013, but that does not constitute “a clear, past agency position.” Ibid. It was an
oversight that the Department is free to correct.
For these reasons, the Department did not need to engage in formal rulemaking
under Metromedia to make its determination.
CONCLUSION
The Department’s Motion for Summary Decision is GRANTED and this matter is
DISMISSED.

OAL DKT. NO. EDU 16167-15
15
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.
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.
April 2, 2019
DATE 	JEFFREY A. GERSON, ALJ/Ret., on recall)
Date Received at Agency: 	April 2, 2019
Date Mailed to Parties:
sej