Board of Educ. of City of Plainfield, Union County, A Type II School Dist. v. Cooperman

• Decision Date: 25 March 1986
• Parties: , 31 Ed. Law Rep. 905 BOARD OF EDUCATION OF the CITY OF PLAINFIELD, COUNTY OF UNION, A TYPE II SCHOOL DISTRICT, Appellant, v. Saul COOPERMAN, Commissioner of Education, Respondent. BOARD OF EDUCATION OF the BOROUGH OF WASHINGTON, Appellant, v. Saul COOPERMAN, Commissioner, State of New Jersey, Department of Education, Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 174

209 N.J.Super. 174

507 A.2d 253, 31 Ed. Law Rep. 905

BOARD OF EDUCATION OF the CITY OF PLAINFIELD, COUNTY OF

UNION, A TYPE II SCHOOL DISTRICT, Appellant, v. Saul COOPERMAN, Commissioner of Education, Respondent.

BOARD OF EDUCATION OF the BOROUGH OF WASHINGTON, Appellant, v. Saul COOPERMAN, Commissioner, State of New Jersey, Department of Education, Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 7, 1986.

Decided March 25, 1986.

Victor E.D. King, Plainfield, for appellant Bd. of Educ. of the City of Plainfield (King, King & Goldsack, Plainfield, attorneys; Victor E.D. King, Plainfield, of counsel, and on brief).

Charlotte Kitler, Deputy Atty. Gen., for respondent Saul Cooperman, Com. of Educ. (W. Cary Edwards, Atty. Gen., attorney; James J. Ciancia, Asst. Atty. Gen., of counsel; Charlotte Kitler, on brief).

James W. Broscious, Washington, for appellant Bd. of Educ. of the Borough of Wash. (Broscious & Cooke, Washington, attorneys; James W. Broscious, Washington, of counsel; Robert L. Schumann and Richard D. Fifield, Washington, on brief).

Before Judges MICHELS, GAULKIN and STERN.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

These cases involve challenges to certain policy guidelines for the admission to school of children with AIDS/ARC and HTLV-III antibody promulgated by the New Jersey State Board of Education through respondent Saul Cooperman, Commissioner of Education (Commissioner). Pursuant to these guidelines, the Commissioner has ordered that the Board of Education of the City of Plainfield (Plainfield Board) and the Board of Education of the Borough of Washington (Washington Board) each admit a kindergarten-aged child to regular classroom attendance within its district. Both school boards have appealed the Commissioner's orders and have challenged the validity of the guidelines. These appeals, therefore, have been consolidated.

The Plainfield Board and the Washington Board contend generally that: (1) the guidelines promulgated by the Commissioner constitute administrative rules under this State's Administrative Procedure Act and, as such, they were not adopted in compliance with the terms of that act; and (2) the guidelines are invalid because they conflict with existing statutes and administrative regulations. With respect to this contention, it is specifically alleged that the guidelines conflict with this State's school laws, which grant local boards of education power to deal with the health and welfare of the student body, and with provisions of the New Jersey Administrative Code, which provide for the evaluation, classification and education of handicapped children and which place the responsibility therefor on district child study teams. The Washington Board further contends that the guidelines are arbitrary, unreasonable and premature.

To better understand the decision we reach today, we deem it necessary to initially set forth the background giving rise to each of these appeals.

The Plainfield Board Case

The Plainfield Board appeals from a decision of the State Board of Education, affirming an order of the Commissioner dated October 3, 1985, which directed that it immediately admit a child, identified only as I.C., "to regular classroom attendance in the same manner and [on] the same basis as [it] would admit any other child eligible for school attendance."

I.C. is a five year old female who is currently under the guardianship of the Division of Youth and Family Services (DYFS). ¹ The child has resided in Plainfield, New Jersey with her foster parent, Mrs. D.W., on a regular basis since March 16, 1982. Two months after I.C.'s birth on October 23, 1980, she was hospitalized and it was determined that she was "failing to thrive" due to inadequate parental care. Thereafter, the child became critically ill with infantile botulism and was subjected to intensive hospital treatments, which included blood transfusions. In 1982, I.C. was diagnosed as having Acquired Immune Deficiency Syndrome, which is more commonly known by its acronym, AIDS.

On October 13, 1983, I.C. was accepted into a pre-school program run by the Plainfield Board. However, approximately one month later, on November 17, 1983, I.C. was withdrawn at the school district's request, after it was learned that she had been diagnosed as having AIDS. In January of 1984, the Plainfield Board advised Mrs. D.W. that it had consulted I.C.'s treating physician, James M. Oleske, M.D., the Director of the Division of Allergy, Immunology and Infectious Diseases at University of Medicine and Dentistry of New Jersey, and was searching for an appropriate physician to render a second opinion as to the feasibility of the child returning to the pre-school program.

Lawrence D. Frenkel, M.D., a professor of Clinical Pediatrics and Director of the Division of Immunology, Allergy and Infectious Diseases at Rutgers Medical School was subsequently chosen by the Plainfield Board to render a second opinion as to the advisability and safety of I.C.'s admission to school. After reviewing I.C.'s medical records, Dr. Frenkel reported on March 2, 1984 that:

Dr. Olesky [sic] is The world's authority on childhood AIDS, and from the data I have, there is absolutely no reason to doubt the diagnosis. Using the therapeutic regime that Dr. Olesky is using, I.C. would be protected from the vast majority of common infectious diseases that might strike the normal child. In terms of an infectious agent causally related to AIDS syndrome, to the best of our current knowledge it takes an extremely intimate interaction or blood transfusion to pass these infections. It is my strong opinion (and that of most of my colleagues around the United States who are following children with AIDS or involved with this disease on a research basis) that these children should not be kept out of schools and do not seem to pose a risk to other children in their environment. [Emphasis in original].

Notwithstanding the advice of both Dr. Oleske and Dr. Frenkel, indicating that I.C. should not be kept out of school, the Plainfield Board refused to readmit the child to its pre-school program. Instead, in March 1985, the Plainfield Board began providing I.C. with pre-school home instruction.

After the Plainfield Board became aware that it would have to address the problem of educating I.C. within its district, it sought the advice of the State Departments of Education and Health. On March 12, 1985, the Plainfield Board inquired of the Union County Superintendent of Schools whether there were any applicable State regulations regarding the enrollment of a public school student with AIDS. The Union County Superintendent responded that, as of March 20, 1985, there were no such regulations in existence. However, he advised that a policy statement on this subject was being sought from the Attorney General's office.

On June 5, 1985, I.C.'s foster mother initiated kindergarten registration at a Plainfield elementary school. Thereafter, the Plainfield Superintendent of Schools again sought the assistance of the Union County Superintendent on June 21, 1985, inquiring whether a policy statement concerning school-age children with AIDS had been secured from the State. However, as of June 1985, no such policy had been established.

While the Plainfield Board was awaiting advice from the State as to the enrollment of I.C., it began to collect information from other states which were dealing with similar problems. "Guidelines for Children with AIDS/ARC Who Are Attending School" were received from the Indiana State Board of Health and "Information and Guidelines on the Prevention of Disease Transmission in Schools (AIDS)" were forwarded by the State of Connecticut. The Connecticut guidelines were modeled closely upon those promulgated by the Florida Department of Health and Rehabilitative Services. In addition, the Plainfield Board reviewed "A Special Report on Acquired Immunodeficiency Syndrome" prepared for the New York City schools.

On August 30, 1985, the State Commissioners of Health and Education jointly announced the adoption of policy guidelines for the admission to schools of children with AIDS. These guidelines entitled, "Admission to School of Children with AIDS/ARC or HTLV-III Antibody," were promulgated to county superintendents by Walter J. McCarroll, a representative of the Commissioner of Education, on September 3, 1985. The original policy guidelines were revised and reissued with attachments on or about October 25, 1985.

According to the Commissioner of Education, these policy guidelines are based upon epidemiological studies indicating "that AIDS is not transmitted through casual contact as would be present in a school environment." Pursuant to the guidelines, children with AIDS/ARC or HTLV-III antibody are required to be admitted to regular school attendance, unless the following exceptional conditions are evident:

a. The student is not toilet-trained or is incontinent, or otherwise is unable to control drooling.

b. The student is unusually physically aggressive, with a documented history of biting or harming others.

The revised guidelines further established the procedures to be followed by local boards of education seeking to exclude students with AIDS, specifically providing:

1. Any determination to exclude a child with AIDS/ARC who is enrolled or seeking enrollment in a school program shall be based solely upon conflicting medical opinion as specified in the state policy. When such conflicting opinion as to the admissibility of a child with AIDS/ARC exists, the school medical inspector on behalf of the board must submit all requested information as contained in "AIDS Contested Admissions Referral Check List" and transmit same to the county superintendent of schools.

2. The county superintendent of schools will immediately notify the Assistant Commissioner for County and Regional Services of the need for a review...