NJ Commissioner of Education Reaffirms Constitutional Limits on School District Authority to Expel Students
Recent Federal Policy Guides Districts on Reducing Reliance on Exclusionary Discipline
Education Law Center represented a New Jersey eighth grader in a recent case in which the Acting New Jersey Commissioner of Education affirmed the strict legal constraints that are placed on the ability of school districts to expel their students.
The student was expelled for causing the evacuation of his middle school by pulling a fire alarm in the absence of a fire. But the Acting Commissioner upheld an Administrative Law Judge’s (ALJ) decision reversing and expunging the expulsion. Both the Acting Commissioner and the ALJ accepted ELC’s arguments that the student’s due process rights had been violated, and his expulsion was illegal.
Under New Jersey law, expulsion means “the discontinuance of educational services or the discontinuance of payment of educational services for a student.” In the groundbreaking case of P.H. v. Bergenfield Board of Education, the New Jersey State Board of Education held in 2002 that students expelled from school are constitutionally entitled to alternative education. The New Jersey Department of Education then adopted regulations in 2005 that required the provision of alternative education and the commission of a second expellable offense before a student’s educational services can be terminated.
The Acting Commissioner’s ruling reaffirmed that principle and noted that a school board’s statutory authority to expel is “not unlimited,” and the state’s regulations are intended to provide “sufficient safeguards to protect the student’s fundamental right to an education.”
The Acting Commissioner emphasized that the seriousness of the offense – pulling a fire alarm when there were already hundreds of district students on the streets due to a student protest – did not justify the board’s many due process violations. These included the board’s failure to provide the student with an informal hearing prior to removal, to issue its written suspension notice within two days of removal, to hold its formal disciplinary hearing within 30 days of removal, and to issue a decision that included a summary of the documentary or testimonial evidence relied on and factual findings relative to each charge. The ruling also deemed the expulsion arbitrary, capricious, and unreasonable due to the board’s failure to consider other options before terminating the student’s educational program.
“Under New Jersey law, expulsion should rarely, if ever, be used,” said ELC Senior Attorney Elizabeth Athos. “The typical standard of deferring to school board action does not apply when the infringement of a student’s fundamental right to a public education is at stake. This is especially true when there are means other than exclusionary discipline that can be used to achieve the important goal of keeping schools safe for all our students.”
The emphasis of New Jersey law on keeping students in school is consistent with best practices advanced by the United States Department of Education (USED). In November 2024 guidance, USED recognized the “long-lasting negative impacts of exclusionary discipline for students and their parents” and urged the use of “evidence-based practices” for students both with and without disabilities.
ELC provides free legal services in public education disputes to income-eligible children and parents. ELC’s representation in this expulsion case was made possible by the University of Virginia Law School, whose Powell Legal Fellow, Meredith Kilburn, served as the ELC staff attorney with primary responsibility for this case, and by The IOLTA Fund of the Bar of New Jersey, which provides support for ELC’s legal assistance program.
Press Contact:
Sharon Krengel
Director of Policy, Strategic Partnerships and Communications
skrengel@edlawcenter.org
973-624-1815, x240