Paula Melnyk v. Board of Education of the Delsea Regional High School District (082354) (Statewide) ( 2020 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
Paula Melnyk v. Board of Education of the Delsea Regional High School District
(A-77-18) (082354)
Argued November 4, 2019 -- Decided January 30, 2020
LaVECCHIA, J., writing for the Court.
The Court considers a challenge by Petitioner Paula Melnyk of the determination
by the Commissioner of Education, affirmed by the Appellate Division, that her tenure
rights were violated when she was not continued in her after-hours teaching position in a
tenure-eligible alternative education program and was replaced by a non-tenured teacher.
Melnyk was a tenured special education teacher with considerable seniority within
the school district when this dispute arose. She was a full-time special education teacher
employed by the Board of Education of the Delsea Regional High School District (the
Board) since September 1991. In that capacity, she was required to hold an Instructional
Certificate that included endorsements as a “Teacher of the Handicapped and Elementary
School Teacher” and as having “highly qualified status in English instruction.” In
September 2002, the Board first assigned Melnyk to work in the position of “Special
Education Alternative Program Teacher” to teach special education classes in the evening
in addition to her regular daytime instructional position.
The alternative education program, titled “BookBinders,” was provided by the
Board, in accordance with regulatory standards, for children who were not succeeding in
the general education program or were mandated for removal from general education.
Per the Board’s Policy, the alternative education program required its staff members to be
“appropriately certified”; thus, to hold her BookBinders teaching position, Melnyk was
required to have an Instructional Certificate with a Teacher of the Handicapped
endorsement, which is the same certificate and endorsement required of her for her day
position as a special education teacher.
Melnyk served as a special education English teacher in the BookBinders program
from 2002 through the end of the 2014-15 school year, with the exception of the 2009-10
school year. There is no question that she served long enough in that position to satisfy
the service requirement for tenure. During that time, Melnyk also served as a full-time
special education teacher in the regular program during the contractual school day hours.
1
In August 2014, the Superintendent of Schools for the Board informed Melnyk
that the Board had determined to assign another, non-tenured teacher to teach English in
the BookBinders program in the following 2015-16 school year.
Melnyk promptly filed a petition of appeal with the Commissioner of Education to
challenge that decision as a violation of her tenure rights. An administrative law judge
(ALJ) framed the issue as “whether the petitioner acquired tenure rights with respect to
her BookBinders assignment as a special education teacher where the BookBinders
assignment was an extracurricular duty performed in the evenings that did not require
additional certification beyond that required by the petitioner for her primary position as
a special education teacher during regular school hours.” The ALJ determined that
Melnyk’s assignment with BookBinders was extracurricular and concluded that Melnyk
was not entitled to tenure in that position because the extracurricular position did not
require additional certification beyond what Melnyk already possessed. In a Final
Agency Decision, the Commissioner of Education adopted the recommended findings
and conclusions of the ALJ’s Initial Decision.
The Appellate Division affirmed in an unpublished decision, relying heavily on
the ALJ’s reasoning and citing to a line of administrative determinations holding that
teachers may not acquire tenure in an extracurricular position unless additional
certification is necessary to hold the position.
The Court granted Melnyk’s petition for certification. 238 N.J. 35 (2019).
HELD: Tenure is a statutory right controlled by law. The tribunals that concluded
petitioner suffered no deprivation of her tenure rights engaged in legal error by labeling
the position as “extracurricular” and then short-circuiting the requisite analysis based on
that classification. This instructional and tenure-eligible position did not become
extracurricular and tenure ineligible simply because petitioner already held tenure in
another position. Petitioner met the statutory criteria for tenure and is entitled to a
remedy for the violation of her right not to be removed or reduced in salary while
protected by tenure for her work in the BookBinders program.
1. The statutes known as the Tenure Act set forth the requirements that allow a teacher to
achieve tenure status and the protections provided to a tenured teaching staff member. In
Spiewak v. Summit Board of Education, this Court definitively explained the nature of
tenure rights accorded to teachers by that statutory scheme. 90 N.J. 63, 77 (1982). In its
core holding, Spiewak pronounces that “all teaching staff members who work in
positions for which a certificate is required, who hold valid certificates, and who have
worked the requisite number of years, are eligible for tenure unless” certain exceptions
not relevant here apply. Id. at 81. The Court noted that allowing school boards to
determine when tenure should be offered would fly in the face of the Legislature’s
mandate that all teachers who qualify for tenure receive tenure. Id. at 80. (pp. 13-15)
2
2. Employing a straightforward application of Spiewak, this matter should involve a
simple application of the Tenure Act’s requirements. That clear analysis was sidetracked
by labeling Melnyk’s position in the BookBinders program as “extracurricular” and
equating it to optional activities to enhance students’ social skills, physical fitness, and
community-minded spirit. There can be no tyranny of labels permitted in this analysis.
The BookBinders program must be seen for what it is: an alternative education program
that is part of the delivery of constitutionally required educational services. The Court
reviews the regulatory framework governing alternative education programs, which are
not optional but rather part of the provision of an overall, essential education program for
challenged students who require full educational services outside of the normal school
day hours and setting. Students have a constitutional right to an education in New Jersey,
and alternative education programs make it possible to satisfy that obligation with respect
to students required to be removed from the traditional classroom population and
instructional setting. The Court reviews the Board policy establishing the BookBinders
program and concludes that the program was not properly categorized as an
“extracurricular” position in the traditional usage of that word. (pp. 16-25)
3. Pigeon-holing Melnyk’s BookBinders position as “extracurricular” was compounded
by imputing a requirement particular to traditional extracurricular activities to the
BookBinders program, namely that tenure rights cannot be acquired in an extracurricular
program unless that program requires the teacher to hold an additional instructional
certification than that required for the teacher’s full-time position. Here, the Board
concedes that Melnyk’s position in the BookBinders program would be tenure eligible if
it were filled by a person not already serving as an instructor in the regular day program.
If the additional-certificate requirement were applied here, it would impose a new and
additional step for the acquisition of tenure in the BookBinders program only for
teachers, like Melnyk, who are already tenured in the regular day education program.
The Court sees no basis to impose such a requirement. Rather, as Spiewak underscores,
it is necessary that a tenure-eligible position carry an instructional certification
requirement, but there is no requirement for an additional certification. In other words,
BookBinders positions are tenure eligible for any person hired to fill a position requiring
an instructional certificate. And tenure eligibility in a BookBinders position must
therefore be analyzed purely on the basis of Spiewak’s dictates. (pp. 25-27)
4. Here, Melnyk’s service in the BookBinders program satisfied Spiewak. She therefore
acquired tenure rights to this position, and her compensation for it could not be reduced
without compliance with the procedural protections of the Tenure Act. (p. 27)
REVERSED and REMANDED.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
LaVECCHIA’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-77 September Term 2018
082354
Paula Melnyk,
Petitioner-Appellant,
v.
Board of Education of the Delsea
Regional High School District,
Gloucester County,
Respondent-Respondent.
On certification to the Superior Court,
Appellate Division.
Argued Decided
November 4, 2019 January 30, 2020
Hop T. Wechsler argued the cause for appellant (Selikoff
& Cohen, attorneys; Hop T. Wechsler and Keith
Waldman, on the briefs).
Andrew W. Li argued the cause for respondent Board of
Education of the Delsea Regional High School District
(Parker McCay, attorneys; Andrew W. Li, on the brief).
Donna Arons, Assistant Attorney General, argued the
cause for respondent Commissioner of Education (Gurbir
S. Grewal, Attorney General, attorney; Melissa Dutton
Schaffer, Assistant Attorney General, of counsel and Joan
M. Scatton, Deputy Attorney General, on the brief).
1
JUSTICE LaVECCHIA delivered the opinion of the Court.
This appeal demonstrates the ability of labels to cloud an analysis. By
calling a teacher’s instructional work in a specialized and separate district
educational program, provided outside of regular school instructional hours, an
“extracurricular assignment,” the school district claimed that the teacher had
no tenure protection to that position and had no recourse when she was
replaced by a non-tenured teacher and suffered a loss in compensation. The
district wrapped the label “extracurricular” around the assignment even though
the after-hours instructional program was provided by the school district in
order to fulfill core curriculum requirements for certain students unable to
fulfill those requirements through the school district’s day program.
The after-hours instructional program in question here is “BookBinders,”
the Delsea School District’s alternative education program. The program is
authorized by regulation, see N.J.A.C. 6A:16-1.3, -9.1, -9.3, implemented by a
policy adopted by the Board of Education of the Delsea Regional High School
District (the Board), and run after regular school-day hours or during evenings.
BookBinders is provided to students either removed from the regular day’s
instructional classes due to behavioral issues or otherwise required to receive
2
instruction that meets state-required core educational standards outside of a
regular classroom setting.
Petitioner Paula Melnyk worked for BookBinders for longer than the
time needed to acquire tenure under N.J.S.A. 18A:28-5(a). She filed this
action before the Commissioner of Education because she believed her tenure
rights were violated when she was not continued in her after-hours teaching
position and was replaced by a non-tenured teacher.
This appeal is from a quasi-judicial decision of an administrative agency
and therefore judicial review is constrained. Mindful of the deferential review
owed to the Commissioner of Education’s administrative decision denying
petitioner’s claim, which was affirmed by the Appellate Division, we reverse.
The teaching position in which petitioner served in the alternative
education program was tenure eligible. Indeed, the Board and the
Commissioner both conceded that a person serving in that BookBinders
position exclusively for the requisite period of time would be entitled to
tenure. But petitioner was denied tenure because she already held tenure in a
teaching position in the district’s regular-education day-instruction program.
Tenure is a statutory right controlled by law. See Spiewak v. Summit
Bd. of Educ., 90 N.J. 63, 77 (1982). The tribunals that concluded petitioner
suffered no deprivation of her tenure rights engaged in legal error by labeling
3
the position as “extracurricular” and then short-circuiting the requisite analysis
based on that classification. This instructional and tenure-eligible position did
not become extracurricular and tenure ineligible simply because petitioner
already held tenure in another position.
We hold that petitioner met the statutory criteria for tenure and that she
is entitled to a remedy for the violation of her right not to be removed or
reduced in salary while protected by tenure for her work in the BookBinders
program.
I.
A.
The essential facts are derived from the record created by the parties
before the Office of Administrative Law, where the case was disposed of on
cross-motions for summary decision. See N.J.A.C. 1:1-12.5(a), (b). We glean
these facts from the statements of undisputed facts and supporting documents,
the same record that the Commissioner relied on.
Paula Melnyk was a tenured special education teacher with considerable
seniority within the school district when this dispute arose. She was a full-
time special education teacher employed by the Board since September 1991.
In that capacity, she was required to hold an Instructional Certificate that
4
included endorsements as a “Teacher of the Handicapped and Elementary
School Teacher” and as having “highly qualified status in English instruction.”
Pursuant to the applicable contract for the 2014-15 school year,
Melnyk’s salary for her position as a special education teacher was $82,874.
That contract also contained language pertaining to extracurricular duties
generally, which stated that “if compensation is to be made to the teacher for
extracurricular duties, such compensation shall be made to the teacher at the
completion of the extracurricular duties unless otherwise stated in writing.”
In September 2002, the Board first assigned Melnyk to work in the
position of “Special Education Alternative Program Teacher” to teach special
education classes in the evening in addition to her regular daytime
instructional position. The alternative education program,1 titled
1
According to N.J.A.C. 6A:16-1.3,
“Alternative education program” means a
comprehensive educational program designed to
address the individual learning, behavior, and health
needs of students who are not succeeding in the general
education program or who have been mandated for
removal from general education, pursuant to N.J.A.C.
6A:16-5.5, 5.6 and, as appropriate, 5.7. The alternative
education program shall provide a variety of
approaches to meet the State-adopted standards, such
as, through non-traditional programs, services, and
methodologies to ensure curriculum and instruction are
delivered in a way that enables students to demonstrate
5
“BookBinders,” was provided by the Board in accordance with standards for
such programs set forth in N.J.A.C. 6A:16-9.1 to -9.3 for children who were
not succeeding in the general education program for a variety of reasons or
were mandated for removal from general education. The program was
designed to comply with Board Policy No. 2480, which implemented the
Board’s decision to provide its own alternative education program, as opposed
to sending pupils needing such services to outside providers. School districts
can choose whether to provide an alternative education program, but if one is
not provided by a district itself then the district must provide for pupil access
to similar educational programs elsewhere. See N.J.A.C. 6A:16-5.5(e),
- 5.6(e), -9.1, -9.3(b).
Melnyk was among the teachers selected to staff the program. Per the
Board’s Policy, the alternative education program required its staff members to
be “appropriately certified”; thus, to hold her BookBinders teaching position,
Melnyk was required to have an Instructional Certificate with a Teacher of the
Handicapped endorsement, which is the same certificate and endorsement
required of her for her day position as a special education teacher. The
Board’s Policy requires BookBinders teachers to provide instruction
the knowledge and skills specified for all students in
N.J.A.C. 6A:8.
6
“sufficient to fulfill pupil graduation requirements,” “comply with school
attendance policies,” comply with the Individualized Education Program (IEP)
for students with disabilities, and help provide comprehensive support services
and programs to “address each pupil’s health, social, and emotional
development and behavior.”
Melnyk served as a special education English teacher in the
BookBinders program from 2002 through the end of the 2014-15 school year,
with the exception of a break in that service during the 2009-10 school year.
She resumed the position of Special Education Alternative Program Teacher
for the 2010-11 school year and served continuously thereafter until the instant
dispute arose; there is no question that she served long enough in that position
to satisfy the service requirement for tenure. See N.J.S.A. 18A:28-5(a)(2)
(requiring employment for three consecutive academic years and employment
at the beginning of the next succeeding year). During that time, Melnyk also
served as a full-time special education teacher in the regular school program
during the contractual school day hours.
On August 7, 2014, the Superintendent of Schools for the Board
informed Melnyk that a salary of $20 an hour had been approved for the
special education English teacher position for the BookBinders program for
the 2014-15 school year, but also informed her that the Board had determined
7
to assign another, non-tenured teacher to teach English in the BookBinders
program in the following 2015-16 school year.
B.
Melnyk promptly challenged the Board’s decision to replace her in the
BookBinders position with a non-tenured person, claiming a violation of her
tenure rights. In July 2015, she filed a timely petition of appeal with the
Commissioner of Education, in which she asserted that the BookBinders
position was tenure eligible and that she had acquired tenure in her position as
a Special Education Alternative Program teacher. The Board filed an answer
disputing that the position was tenure eligible.
The Commissioner transferred the matter as a contested case to the
Office of Administrative Law, and the matter was resolved on cross-motions
for summary decision. In an Initial Decision, an administrative law judge
(ALJ) recommended that the judgment be granted to the Board and the petition
of appeal be dismissed.
The ALJ framed the issue as “whether the petitioner acquired tenure
rights with respect to her BookBinders assignment as a special education
teacher where the BookBinders assignment was an extracurricular duty
performed in the evenings that did not require additional certification beyond
that required by the petitioner for her primary position as a special education
8
teacher during regular school hours.” The ALJ determined that Melnyk’s
assignment with BookBinders was extracurricular, explaining that it fell
outside of her usual duties as a special education teacher during normal school
hours. The ALJ concluded that she was not entitled to tenure in the
BookBinders position because the extracurricular position did not require
additional certification beyond what Melnyk already possessed.
Because the ALJ determined that Melnyk was not entitled to tenure in
the position, the ALJ also reasoned that Melnyk was not entitled to
compensation for removal from the BookBinders position. The ALJ noted that
Melnyk was paid a stipend for her BookBinders position rendering her
compensation for that position as remuneration that was “not integral to her
contractual salary.” In sum, the ALJ concluded that Melnyk was not owed
back pay or other compensation because the alternative position was “neither
engrafted onto her primary tenured position nor compensated as an integral
part of her [tenure-protected] salary.”
In a Final Agency Decision, the Commissioner of Education adopted the
recommended findings and conclusions of the ALJ’s Initial Decision. The
Commissioner agreed that Melnyk’s position in the BookBinders program was
separate from her full-time position in the general education program and
therefore extracurricular, and further agreed that Melnyk could not claim a
9
tenure right to that separate position because she was not required to hold an
instructional certificate different from the one she held for her already tenured
full-time position. The Commissioner also agreed with the ALJ’s
determination that Melnyk’s BookBinders compensation was not protected by
tenure against reduction for substantially the same reasons as put forward by
the ALJ.
The Appellate Division affirmed in an unpublished decision, relying
heavily on the ALJ’s reasoning and citing to a line of administrative
determinations holding that teachers may not acquire tenure in an
extracurricular position unless additional certification is necessary to hold the
position. In addition to noting that Melnyk was not eligible for tenure because
she did not need to have additional certification to teach in the BookBinders
program -- beyond that already required of her to teach during the regular
school day program -- the Appellate Division concluded that the
Commissioner’s decision was not in any way arbitrary, capricious, or
unreasonable. Accordingly, the appellate court affirmed the administrative
agency’s quasi-judicial decision.
We granted Melnyk’s petition for certification. 238 N.J. 35 (2019).
10
II.
The arguments advanced before us are largely the same as those
presented to the administrative agency and the Appellate Division.
Briefly, Melnyk asserts that the decision under review conflicts with
both the tenure law and this Court’s foundational holding in Spiewak. She
disputes that her position with BookBinders is equivalent to the types of
positions loosely categorized as extracurricular and asserts that her after-
school academic program is different in kind, rendering her instructional
position in that program tenure eligible. Further, she argues that she should
not be barred from obtaining additional tenure protection from this second, and
separate, after-hours instructional program designed to satisfy core curriculum
requirements for students the school district is required to accommodate with
alternative education. Basically, Melnyk argues that if a non-extracurricular
position meets the requirements of the Spiewak test, it is tenure eligible, and
BookBinders was such a position.
The Board argues that the BookBinders position was extracurricular and
insists that teaching staff do not accrue tenure in extracurricular positions
unless the position requires the staff member to hold additional certification.
Here, Melnyk did not have to hold any additional certification to teach in
BookBinders, and so she could not acquire tenure in the position. Further, the
11
Board maintains that when a teaching staff member does achieve tenure, it is
their general position as a teacher that is protected, not the underlying
specialty position in which he or she serves. To make its point, the Board uses
the example that although teachers can accrue tenure in a position for which
they are appropriately certified, such as a K-8 teacher, the specific position of
“Third Grade Teacher” is not protected, and that the BookBinders position is
not similarly tenure protected. The Board asserts that because Melnyk did not
require additional certification to teach in BookBinders, she did not acquire
any tenure protection in the position.
III.
We acknowledge that under the well-recognized standard of review
applicable in an appeal from an administrative agency’s decision, the
Commissioner’s decision in this matter is entitled to affirmance so long as the
determination is not arbitrary, capricious, or unreasonable, which includes
examination into whether the decision lacks sufficient support in the record or
involves an erroneous interpretation of law. See Zimmerman v. Sussex Cty.
Educ. Servs. Comm’n, 237 N.J. 465, 475 (2019).
However, “[i]n an appeal from a final agency decision, an appellate
court is ‘in no way bound by the agency’s interpretation of a statute or its
determination of a strictly legal issue.’” Ardan v. Bd. of Review, 231 N.J.
12
589, 604 (2018) (quoting US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012)).
The question in this matter involves consideration of a strictly legal question,
namely a determination of the proper application of the tenure statutes as
expounded upon by this Court in Spiewak. Thus, we review the statutory
command as explained by Spiewak on equal footing with the Commissioner.
IV.
The statutes known as the Tenure Act set forth the requirements that
allow a teacher to achieve tenure status and the protections provided to a
tenured teaching staff member. N.J.S.A. 18A:28-1 to -18 (the Tenure Act or
Act). The Act generally describes and defines the conditions under which
teachers are entitled to tenure. It lists the specific positions that may be
entitled to tenure protection, including “teacher[s] . . . and such other
employees as are in positions which require them to hold appropriate
certificates issued by the board of examiners, serving in any school district or
under any board of education.” N.J.S.A. 18A:28-5(a). The statutory scheme
then imposes a certification requirement and a length-of-service requirement
for achieving tenure protection. Ibid.
In Spiewak, this Court definitively explained the nature of tenure rights
accorded to teachers by that statutory scheme: “By the express terms of the[]
[tenure] statutes, an employee of a board of education is entitled to tenure if
13
(1) she works in a position for which a teaching certificate is required; (2) she
holds the appropriate certificate; and (3) she has served the requisite period of
time.” 90 N.J. at 74. Updated amendments to the tenure laws in 2012 have
not affected those basic requirements. See L. 2012, c. 26, § 9.
The Court’s decision in Spiewak addressed “whether public school
teachers who provide remedial and supplemental instruction to educationally
handicapped children may acquire tenure.” 90 N.J. at 66. Rita Spiewak
worked as an instructor in a supplemental academic program for educationally
handicapped children for the Rutherford Board of Education but was
contractually set on a dead-end path for the acquisition of tenure. Id. at 67-68.
Meanwhile, her employer had contracts with two other supplemental
instructors who performed duties that were “not materially different” from
Spiewak’s, but who were deemed eligible for tenure and paid at a higher scale
than Spiewak. Id. at 68. Spiewak challenged her different treatment with
respect to tenure eligibility and protection. Id. at 69.
In concluding that Spiewak was eligible for tenure, the Court stated that
“[w]hether certain teachers are entitled to tenure never depends on the
contractual agreement between the teachers and the board of education.
Tenure is a ‘statutory right imposed upon a teacher’s contractual
employment.’” Id. at 77 (quoting Zimmerman v. Newark Bd. of Educ., 38 N.J.
14
65, 72 (1962)). In its core holding, Spiewak pronounces that “all teaching
staff members who work in positions for which a certificate is required, who
hold valid certificates, and who have worked the requisite number of years, are
eligible for tenure unless they come within the explicit exceptions in N.J.S.A.
18A:28-5 or related statutes such as N.J.S.A. 18A:16-1.1.” Id. at 81.
The Court commented that
[t]he unfairness of making tenure subject to contract
negotiations is apparent from these cases. In Spiewak,
for example, the school board has hired two
supplemental teachers on a contract and tenurable
basis. It has also hired several teachers on an hourly,
non-tenurable basis. Yet their duties are nearly
identical. If tenure were a matter of contract, its
protection would be available only to those employees
that the boards choose to favor with it.
[Id. at 80.]
The Court noted that allowing school boards to determine when tenure should
be offered would fly in the face of the Legislature’s mandate that all teachers
who qualify for tenure receive tenure. Ibid. Construing the Tenure Act
“liberally . . . to achieve its beneficent ends,” the Court found no evidence that
the protections of tenure should be withheld from those who teach in remedial
or supplemental positions, particularly because remedial and supplemental
education is mandated by statute for students who need such instruction. Id. at
74-75.
15
V.
Employing a straightforward application of Spiewak, this matter should
involve a simple application of the Tenure Act’s requirements. If Melnyk
served in her instructional position in the BookBinders program for the
requisite period of time and held the required instructional certificate to teach
in that position, she should be entitled to tenure protections against removal or
reduction in compensation associated with that position.
However, that clear analysis was sidetracked by labeling Melnyk’s
position in the BookBinders program as “extracurricular” and equating it to
activities like sports programs, literary and other arts-based activities,
social/club-like programs, and other optional activities to enhance students’
social skills, physical fitness, and community-minded spirit. That initial
detour, which pigeon-holed Melnyk’s BookBinders position as
“extracurricular,” was compounded by imputing a requirement particular to
traditional extracurricular activities to the BookBinders program, namely that
Melnyk could not acquire tenure rights to her position in BookBinders unless
that program required her to hold an additional instructional certification than
that which she already held for her full-time regular education position. The
result of that second detour is that Melnyk was treated as a distinct class of
persons assigned to a teaching position in BookBinders and was subjected to
16
an additional tenure requirement vis-à-vis her BookBinders colleagues who
were not tenured in the regular day program.
We reject those detours in turn.
A.
By labeling the BookBinders program as “extracurricular,” the Board
sought to avoid Spiewak’s application. However, the label is not impervious
to challenge. There can be no tyranny of labels permitted in this analysis.
The BookBinders program must be seen for what it is: an alternative
education program that is part of the delivery of constitutionally required
educational services that comprise the system of a thorough and efficient
education delivered by the Board. The educational services are obligatory,
even though the way in which a school district chooses to provide such
services to the students who need them is optional. In that critical way, this
program is unlike any comparable “extracurricular” optional after-hours
program that was used by analogy by the Board, the Commissioner, or the
Appellate Division.
According to governing regulations for alternative education programs, a
local board of education has the option to provide such services itself.
Pursuant to N.J.A.C. 6A:16-9.1(a), since that regulation’s approval process
was last fine-tuned in 2006, “[e]ach district board of education choosing to
17
operate an alternative education program, pursuant to N.J.A.C. 6A:16-1.3,”
must act to approve the program. If a program is run by a state agency, public
college, or Department-of-Education-approved school, the Commissioner must
approve it. N.J.A.C. 6A:16-9.1(b). To be approved, alternative education
programs are to be designed to provide education for students who are not
succeeding in a general education program for any number of reasons.
N.J.A.C. 6A:16-1.3.
School districts are not each required to provide an alternative education
program themselves; should a district send its eligible pupils to another
approved alternative education program, however, that program must be in
compliance with state standards. N.J.A.C. 6A:16-9.3(b) provides that
[i]f a district board of education places a student in an
alternative education program approved by another
district board of education, pursuant to N.J.A.C. 6A:16-
9.1(a)[], or another approved agency, pursuant to
N.J.A.C. 6A:16-9.1(b), the district board of education
of the sending school district shall be responsible for
ensuring compliance with the requirements of this
subchapter.
When a district decides to operate its own alternative education program,
the program must be a “comprehensive educational program designed” to
provide instruction and aid with student achievement of core curriculum
education standards for students who are not succeeding in or who were
18
mandatorily removed from general education programs. N.J.A.C. 6A:16-1.3
(incorporating reference to core curriculum standards contained in N.J.A.C.
6A:8). Alternative education programs are thus not optional tutorial services
provided as part of a spectrum of voluntary after-hours program-enhancement
opportunities for students. Rather, such programs are part of the provision of
an overall, essential education program, consistent with state standards, for
challenged students who require full educational services outside of the normal
school day hours and setting.
Students have a constitutional right to an education in New Jersey, see
N.J. Const. art. VIII, § 4, ¶ 1, and the State has an obligation to provide many
types of at-risk students with an education designed to assist the student with
core curriculum standards. See State ex rel. G.S., 330 N.J. Super. 383, 392-94
(Ch. Div. 2000) (noting the breadth of State’s obligation to provide education
to at-risk children, including juveniles adjudicated delinquent). Alternative
education programs make the satisfaction of that obligation possible with
respect to various categories of students.
For example, regulations require the removal of students with certain
behavioral issues from the traditional classroom population and instructional
setting. See N.J.A.C. 6A:16-5.5(a), (b) (requiring that “[e]ach district board of
education shall immediately remove from the school’s general education
19
program for a period of not less than one calendar year” students who are
“found knowingly” in possession of a firearm on school grounds or convicted
of or adjudicated delinquent for a student offense involving a firearm).
However, students removed from the classroom pursuant to N.J.A.C. 6A:16-
5.5(b) still must be educated and must be placed in alternative education
programs unless one is not available, in which case the student will be
provided with out-of-school instruction. N.J.A.C. 6A:16-5.5(e); see also
N.J.A.C. 6A:16-5.6(b) (setting same requirements for students who commit an
assault with a weapon that is not a firearm, except that they will be removed
from school for a period of no longer than a year). And, for students who
commit an assault “not involving the use of a weapon or firearm” upon a
school district employee under certain circumstances, immediate removal from
school is also required. N.J.A.C. 6A:16-5.7(a), (b). Although there is no
mandated period of removal for this category of student, the student is
nonetheless entitled to continue to receive educational services during the
removal period. N.J.A.C. 6A:16-5.7(b).
Because alternative education programs must be comprehensive enough
to provide a thorough education to students who are removed from the general
education program for extended periods of time, the programs must address
20
students’ educational needs. They do not simply supplement areas where
students need extra assistance.
In the BookBinders program, Melnyk was providing substantive English
education in accordance with the standards set forth in N.J.A.C. 6A:16-9.1
to -9.3. The Board modelled the BookBinders program on a series of
regulatory requirements. In authorizing the establishment of the BookBinders
program, the Board issued a detailed and specific policy. We quote from the
Board’s Policy No. 2480 in full:
The Board of Education may operate an alternative
education program in accordance with the requirements
of N.J.A.C. 6A:16-9.1. The program shall be approved
by the Commissioner of Education and shall be separate
and distinct from the already existing programs
operated by the Board.
An alternative education program will fulfill the
program criteria for both a high school and middle
school program as outlined in N.J.A.C. 6A:16-9.2. A
program will have a maximum pupil-teacher ratio of
12:1 for high school programs and 10:1 for middle
school programs. An Individualized Program Plan
(IPP) shall be developed for each general education
pupil enrolled in the program in accordance with
N.J.A.C. 6A:16-9.2(a)(3). For a pupil with a disability,
the alternative education program shall be consistent
with the pupil’s Individualized Education Program
(IEP), pursuant to N.J.A.C. 6A:14, Special Education.
Individualized instruction to all pupils shall address the
Core Curriculum Content Standards. Academic
21
instruction sufficient to fulfill graduation requirements,
pursuant to N.J.A.C. 6A:8-5.1, shall be provided to
high school pupils. Comprehensive support services
and programs shall address each pupil’s health, social,
and emotional development and behavior. Instructional
staff in an alternative education program shall be
appropriately certified.
Pupils in the alternative education program shall
comply with attendance policies, pursuant to N.J.A.C.
6A:16-7.8 and 6A:32-8.3. Case management services
including, but not limited to, monitoring and evaluating
pupil progress and coordinating instructional and
support services shall be provided as required in
N.J.A.C. 6A:16-9.2(a)(10). Services to facilitate the
transition of pupils returning to the general or special
education program from the alternative education
program shall be provided. A minimum pupil
enrollment period of not less than two complete
marking periods shall be required pursuant to N.J.A.C.
6A:16-9.2(a)(12).
Pupil placement in an alternative education program
shall be made pursuant to N.J.A.C. 16A:-9.3(a) [sic].2
If the district places a pupil in an alternative education
program operated by another district Board of
Education, pursuant to N.J.A.C. 6A:16-9.1(a), or
another approved agency, pursuant to N.J.A.C. 6A:16-
9.1(b), the sending school district shall be responsible
for ensuring compliance with the requirements of
N.J.A.C. 6A:16-9.
Decisions regarding continued placement in an
alternative education program or a change to a pupil’s
placement shall be made for general education pupils in
2
N.J.A.C. 6A:16-9.3(a) sets forth that requirement.
22
accordance with N.J.A.C. 6A:16-9.3(c)(1) and for
pupils with disabilities in accordance with N.J.A.C.
6A:16-9.3(c)(2).
For specific infractions of our Student Code of
Conduct, second offense drug infractions, and weapons
offenses, the Board of Education, based upon the
recommendation of the appropriate administrator, will
approve placement into the Alternate Program.
The recommendation will adhere to the following
program options:
1. Placement for one school year (180 days) with
no sixth month review, and no co-curricular
involvement.
2. Placement for one school year (180 days) with
a sixth month review to consider changes in
prescribed program. If a change is recommended
it must go before the Board for consideration
since the Board approved the original
placement/program.
3. If an extenuating circumstance exists, the
Board may approve less than one-year program
as recommended by the administration, and
require regular monitoring of student progress.
4. Note: Definition of six month review requires
six months of the school calendar.
In all of the above options the Substance Awareness
Coordinator must monitor the contract agreed to by the
student’s parent/guardian and the administration. If at
anytime there is a violation of the terms of the
agreement, the administration and the Board must be
informed and an appropriate review must occur that
may result in a program change.
23
It is clear that the Board’s Policy is meant to provide a program that is
substantive and comprehensive and is run as a complete alternative to the
regular school program. The Board ran its alternative education program in
the evenings, outside of traditional school hours, and required teachers to have
an Instructional Certificate with a Teacher of the Handicapped endorsement.
According to the Board’s Policy, its alternative education program “shall be
separate and distinct from the already existing programs operated by the
Board.”
The BookBinders program run by the Board was not properly
categorized as an “extracurricular” position in the traditional usage of that
word. The ALJ was more accurate in describing this program as “separate”
from the regular school education program. This was, in effect, a distinct,
replacement education program for students educated apart from students in
the regular day programming, and it cannot be treated as a permutation of a
quintessentially extracurricular school program like one devoted to sports, the
arts, socialization, and the community. Such programs, and the staff positions
that support, counsel, or coach them, supplement the educational program
provided during the regular school day and are optional. BookBinders
supplants the regular educational program for the pupils it serves -- it is
24
“curricular” in every way, not extracurricular. 3 BookBinders had a separate
instructional program with delineated educational requirements, hours, length
of school year, and instructional certification requirements to satisfy state
standards for a pupil population that was being educated separate and apart
from pupils in the day programs. It was legal error to equate it with an
optional extracurricular program that supplements a student’s school
experience with an array of non-required but enriching educational
opportunities. See, e.g., Dignan v. Bd. of Educ. of Rumson-Fair-Haven Reg’l
High Sch., 71 S.L.D. 336 (faculty advisor for the school newspaper); Dallolio
v. Vineland Bd. of Educ., 65 S.L.D. 18 (football coach).
B.
Further, because the BookBinders program is a separate, but
constitutionally based, educational program run by the Board outside of the
normal school program, it is not subject to the “different instructional
certificate” requirement pertinent to traditional, extracurricular programs.
3
Indeed, we acknowledge the argued point that the Legislature has made
“assignment to, retention in, dismissal from, and any terms and conditions of
employment concerning extracurricular activities” mandatory subjects of
negotiations. See L. 1989, c. 269, § 2 (codified at N.J.S.A. 34:13A-23). The
position that we considered here is uniquely different from and not subject to
the extracurricular label and all that connotes, for the reasons stated herein.
25
Relying on considerations connected with past decisions analyzing
whether a teacher could acquire tenure in a separate, even extracurricular,
position by examining whether a separate instructional certificate was needed,
the Board and the Commissioner urge us to impose such a requirement here.
We fail to see that such a requirement has any applicability to the present
matter. Such a requirement is sensible for the assessment of whether a teacher
is being asked to perform additional duties within the scope of the certificate
held by a teacher tenured in the district’s regular school programming. Here,
the Board concedes that Melnyk’s position in the BookBinders program would
be tenure eligible if it were filled by a person who was not already serving as
an instructor in the district’s regular day program. If the additional-certificate
requirement were applied here, it would result in imposing a new and
additional step for the acquisition of tenure in the BookBinders program only
for teachers, like Melnyk, who are already tenured in the regular day education
program. We see no basis under the Tenure Act to add a new requirement for
the acquisition of tenure in this alternative education program for Melnyk
because she already teaches and has acquired tenure in her special education
teaching position in the district’s regular day instruction, and we decline to
import such a requirement from the readily distinguishable context of
traditional extracurricular programs.
26
Rather, as Spiewak underscores, it is necessary that a tenure-eligible
position carry an instructional certification requirement, but there is no
requirement for there to be an additional certification. Applying the lesson of
Spiewak and the literal requirements for tenure acquisition in a position, we
conclude as a matter of first impression that this alternative education program
entailed positions that are eligible for tenure separate and distinct from any
considerations of tenure eligibility as to the day-program instruction. In other
words, BookBinders positions are tenure eligible for any person who is hired
to fill a position requiring an instructional certificate. And tenure eligibility in
a BookBinders position must therefore be analyzed purely on the basis of
Spiewak’s dictates.
Here, Melnyk’s service in the BookBinders program satisfied Spiewak.
Her service lasted, even after her one-year break, longer than the requisite time
for her to acquire tenure, and she had the specific instructional certificate. She
therefore acquired tenure rights to this position outside of her separate right to
tenure in her capacity as a special education teacher in the district’s regular
day program instruction. The BookBinders position held by Melnyk was
separately tenure eligible, and her compensation for it could not be reduced
without compliance with the procedural protections of the Tenure Act.
27
VI.
For the reasons expressed, we reverse the judgment of the Appellate
Division and remand to the Commissioner for entry of judgment and relief in
favor of petitioner for any reduction in compensation suffered. We note that
Melnyk retired after the initiation of this lawsuit and therefore leave to the
Commissioner the calculation of appropriate damages.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
LaVECCHIA’s opinion.
28