By: Eric Richwine, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.
On July 3, 2023, the New Jersey Appellate Division in In re Adoption of N.J.A.C. 6A:27-5.1 upheld the New Jersey Department of Education’s (“the Department”) adoption of an amendment to its regulations governing the transportation of students. This appeal, on behalf of the New Jersey Public Charter Schools Association (“the Association”), arose from the Department’s amendment to N.J.A.C. 6A:27-5.1, which governs the allocation of transportation costs for disabled students who attend out-of-district charter schools. The new subsection, N.J.A.C. 6A:27-5(b), caps the financial responsibility of the district of residence for disabled students’ transportation costs and requires the charter school to pay the remainder of said costs.
Prior to the amendment, the State Board of Education (“the Board”) held a series of three public meetings from June to August of 2020 to discuss the proposed amendment. It also distributed memoranda detailing the proposed change and published a copy of the proposed amendment in the New Jersey Register. Most notably, on September 24, 2020, the Board published a memorandum to notify chief school administrators and charter school project leads about the proposed change. The memorandum included a hyperlink to the proposed regulation itself, as well as an avenue for administrators and members of the public to submit commentary through the Department’s website. Only five comments were received, none of which came from the Association or any charter school. The Board officially approved the amendment on January 6, 2021, and the Department followed suit on January 7, 2021.
Soon after, the Association appealed to challenge N.J.A.C. 6A:27-5.1(b). It argued that the regulation was ultra vires, i.e., beyond the scope of the Department’s power. It also contended that the regulation should be set aside because the proposal notice did not conform to certain procedural requirements set forth by the Administrative Procedure Act (“APA”).
The Appellate Division first acknowledged that the power of administrative agencies is to be liberally construed in terms of their statutory responsibilities, but the Court does have the power to find for an ultra vires action to set the regulation aside if it is plainly at odds with the statute per the New Jersey Supreme Court’s holding in In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004). However, the Appellate Division emphasized that this is a very high burden, requiring the Association to prove that the Department’s decision indicated a “clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record” per the decision of In re Herrmann, 192 N.J. 19, 27-28 (2007).
With this in mind, the Appellate Division analyzed whether the amendment frustrated the original purpose of the statute. It determined that, under the Charter School Program Act of 1995, the legislature delegated the regulation of non-resident students’ charter school transportation to the Board. Thus, because the amended regulation governed transportation of charter school students with disabilities, the Appellate Division determined that the regulation was consistent with the legislature’s express delegation of authority to the Board to regulate transportation services for students attending out-of-district charter schools. The regulation only specified that any costs above the statutory maximum would be covered by the charter school instead of the parents and therefore did not frustrate the statute’s purpose.
The Appellate Division further rejected the Association’s assertion that the change was invalid for failure to comply with the notice requirements of the APA. Although the Association specifically targeted the proposal for amending the regulation, the Appellate Division found the amendment process to be sufficient, especially considering the fact that the Board conducted three public meetings on the proposal, published the proposed rule, notified lead officials at all charter schools, and even provided a link for the public to offer comments.
In light of its findings, the Appellate Division affirmed and upheld N.J.A.C. 6A:27-5.1(b).
