From Brawls to Charter Challenges, They All Cross the Commissioner’s Desk

John Mooney | December 5, 2011 | Education
Cerf is the last administrative word on legal challenges filed with state education department

It’s the quieter part of acting education commissioner Chris Cerf’s job, but it may have more immediate impact on school kids and teachers than the policy speeches and pronouncements.

Cerf is the final administrative word on the dozens of legal challenges that are filed with the state Department of Education each year. They range from the routine to the rancorous, all with an individual’s job or education at stake.

“It’s not a big part of the job, but one I take very seriously,” Cerf said this weekend.

And once in a while, a case rises to broader public attention, such as the challenge that made it to Cerf’s desk last week involving nine Wayne Hills High School football players. They’d been suspended by their school board on the eve of a state playoff, over a fight outside school that brought assault charges.

In a case that garnered statewide headlines, Cerf on Friday ruled on behalf of the board and upheld the suspensions. Cerf, himself an attorney who once clerked for former U.S. Supreme Court Justice Sandra Day O’Connor, said afterward that this case was pretty straightforward as to whether the board was within its rights.

“This was a decision of the school board and the question of whether it was in the zone of reasonableness, and not arbitrary and capricious, in which case I will let their decision stand,” he said.

But other challenges may prove a little more discretionary, including a couple of charter school cases headed to his docket.

One is from a group of Jersey City charters, challenging the state’s funding system, which they contend has left them unable to provide a constitutionally required “thorough and efficient education.”

Another challenge filed by an approved charter maintains that local school districts are illegally fighting the school’s opening. An administrative law judge last month ruled on behalf of the districts, and now Cerf stands as the final word for the state.

It’s a legal process that dates back decades, involving some historic cases, and has gone through its own iterations. Under statute and administrative code, challenges to school or state decisions can be filed to the department. They run the gamut, from disputes over a student’s residency to teacher or staff tenure decisions to disagreements between school boards. The department also hears appeals to decisions of the state’s Board of Examiners and the state’s School Ethics Commission.

The challenges are filed with the state, and the commissioner has the discretion to have them first heard by an administrative law judge before he makes a determination. He is assisted by his own staff of lawyers in the state’s Office of Controversies and Disputes. All of the decisions can still be appealed through the courts, usually starting with the state appellate court.

Currently, the legal authority rests solely with the commissioner, but it was not always that way. Up until 2008, the State Board of Education was also a stop in the process, and it played a prominent role in some historic cases for the state, including the acrimonious fight over the desegregation of Englewood City’s high school. But at the behest of the Corzine administration, the legislature in 2008 removed the state board from the process.

It is a move that has rankled board members ever since, but it clearly speeded up a process that became well known for its snail’s pace.

“I think the board added very little to the process and the final agency decisions, and at the same time slowed it to a crawl where it took forever to come to a decision,” said David Sciarra, executive director of the Education Law Center, the Newark advocacy group that is best known for its Abbott v. Burke litigation but also represents scores of such smaller challenges.

“The process is much better now than it used to be,” he said. “And these are a lot of important cases that affect kids’ lives directly. We may overlook them with all the talk of policy, but these involve the education lives of children.”