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In re Complaint filed by Rockaway Township (3-15)(Docket #: COLM-0002-15)

PROCEDURAL HISTORY

Complaint filed.  On March 30, 2015, via email, a Complaint was filed by Board Counsel Nathanya G. Simon, Esq., on behalf of the Rockaway Township Board of Education, in which it is alleged that N.J.A.C. 18A:46-55 (L. 2013, c. 131), requires the State Board of Education to promulgate regulations incorporating the International Dyslexia Association's definition of dyslexia into chapter 14 of Title 6A of the New Jersey Administrative Code.  The State Board amended N.J.A.C. 6A:14-1.3 to define dyslexia as "a specific learning disability that is neurological in origin.  It can be characterized by difficulties with accurate and/or fluent word recognition and by poor spelling and decoding abilities.  Difficulties typically result from a deficit in the phonological component of language that is often unexpected in relation to other cognitive and the provision of effective classroom instruction.  Secondary consequences may include problems in reading comprehension and reduced reading experience that can impede growth of vocabulary and background knowledge.  See 46 N.J.R. 1996(a); 47 N.J.R. 419(a).  A student must be determined eligible and classified "eligible for special education and related services" when a student has a "specific learning disability' including conditions such as dyslexia[.]"  N.J.A.C. 6A:14-3.5(c).  This statutory mandate expanded the number of students receiving special education services in the District without authorizing any resources to offset the additional direct expenditures to provide those services.

N.J.S.A. 18A:6-130 to -131 (L. 2013, c. 105) requires a minimum of two professional development hours each year for various teaching staff members on "the screening, intervention, accommodation, and use of technology for students with reading disabilities, including dyslexia."  N.J.S.A. 18A:6-131.  This statutory mandate imposed additional professional development training requirements on the Board without authorizing any resources to offset the additional direct expenditures for providing that training.

18A:40-5.1 to -5.4 (L. 2013, c. 210) requires school boards to ensure that students who exhibit one or more "potential indicators of dyslexia" are screened no later than the completion of the first semester of second grade and to implement certain screening instruments.  N.J.S.A. 18A:40-5.2, -5.3.  This statutory mandate imposed additional training and screening costs on the Board without authorizing any resources to offset the additional direct expenditures for implementing such screening.  A summary of the Rockaway Township Complaint may be viewed under Pleading Summaries.

To view the full version of the Rockaway Township Complaint, please click here.

Council publication.  Because of the identity of the issue raised, the Council ordered that the complaint should be served on the Attorney General, the Department of Education, and the officials listed in Council Rule 9a.  The Council also determined that the Attorney General would be directed to file an Answer to the Complaint, and that any other official served with the Complaint that chose to do so might file an Answer, as Respondent.

By letter of June 8, 2015, the Complaint was circulated to the above-mentioned officials, and the letter also provides a schedule of due dates for filings of pleadings, including:

  • Claimant and Respondent opportunity to serve interrogatories (July 1, 2015).
  • Claimant and Respondent Answer(s) directed to the Complaint (July 31, 2015).
  • Claimant and Respondent Cross-Motion(s) for Summary Decisions directed to the Complaint (August 31, 2015).
  • Claimant and Respondent response(s) to such Motions (September 30, 2015).

By email of July 27, 2015, the Council informed all interested parties that the schedule of due dates for filings of pleadings had been revised, to reflect the following dates:

  • Claimant and Respondent Answer(s) directed to the Complaint (August 31, 2015).
  • Claimant and Respondent Cross-Motion(s) for Summary Decisions directed to the Complaint (September 30, 2015).
  • Claimant and Respondent response(s) to such Motions (October 30, 2015).

Respondent's Answer and Motion to Dismiss.  On May 18, 2015, an Answer and a Motion to Dismiss the Complaint was filed on behalf of Respondent, State of New Jersey, Department of Education, via hand-delivery.  A summary of that pleading may be viewed under Pleading Summaries.

To view the full version of the Respondent's Answer and Motion to Dismiss, please click here.

PLEADING SUMMARIES.

This portion of the site reproduces summaries, written by parties and amici, of their pleadings, as they are filed with the Council, beginning with the filed Complaints.  The summaries do not represent the views of the Council; they are provided to facilitate understanding of the positions reflected in the pleadings.

Complete copies of all filed pleadings may be obtained by contacting the Council office as described under Address & Telephone.

Claimant Rockaway Township Board of Education's Summary of Complaint:

                In the instant Complaint, the Board is challenging the 2013 legislation which implemented several new statutory provisions relative to dyslexia.  These statutory provisions imposed new requirements on local boards of education regarding the identification and provision of services to students with dyslexia, as well as professional development requirements, without providing dedicated funding for same.  Therefore, it is the Board's position that the new statutory provisions constitute unfunded mandates.

                Specifically, N.J.S.A. 18A:46-55 (L. 2013, c. 131) required the State Board of Education to promulgate regulations incorporating the International Dyslexia Association's definition of dyslexia into chapter 14 of Title 6A of the New Jersey Administrative Code.

                As a result, the State Board amended N.J.A.C. 6A:14-1.3 to define dyslexia as:

a specific learning disability that is neurological in origin.  It can be characterized by difficulties with accurate and/or fluent word recognition and by poor spelling and decoding abilities.  Difficulties typically result from a deficit in the phonological component of language that is often unexpected in relation to other cognitive and the provision of effective classroom instruction.  Secondary consequences may include problems in reading comprehension and reduced reading experience that can impede growth of vocabulary and background knowledge.

See 46 N.J.R. 1996(a); 47 N.J.R. 419(a).

                A student must be determined eligible and classified "eligible for special education and related services" when a student has a "specific learning disability' including conditions such as dyslexia[.]"  N.J.A.C. 6A:14-3.5(c).

                Furthermore, N.J.S.A. 18A:6-130 to -131 (L. 2013, c. 105) requires a minimum of two (2) professional development hours each year for multiple teaching staff members on "the screening, intervention, accommodation, and use of technology for students with reading disabilities, including dyslexia."  N.J.S.A. 18A:6-131.

                Moreover, N.J.S.A. 18A:40-5.1 to -5.4 (L.  2013, c. 210) requires school boards to ensure that students who exhibit one or more "potential indicators of dyslexia" are screened no later than the completion of the first semester of second grade and to implement certain screening instruments.  N.J.S.A. 18A:40-5.2, -5.3.  Despite the requirement, there has also been no specific guidance promulgated to offer appropriate screening tools for districts to use.  As a result, it can be anticipated that the school district will receive multiple requests from parents for a myriad of different assessments to be used as screening tools, with no funding provided to offset costs.

                The State does not provide funding to offset the additional direct expenditures on local boards of education now required (1) to provide the requisite services to the expanded number of students receiving special education services as a result of N.J.S.A. 18A:46-55 and the amendment to N.J.A.C. 6A:14-1.3, (2) to provide the requisite annual professional training regarding dyslexia under N.J.S.A.  18A:6-131, or (3) to implement the requisite dyslexia screening under N.J.S.A.  18A:40-5.1 to -5.4.  Instead, the Board must fulfill its obligations regarding dyslexia utilizing monies obtained through the local property tax or other local revenues.

                The aforementioned dyslexia requirements impose a substantial financial burden on the Board, and all other school districts in the State, without any specific funding provided to offset those local expenditures.  For example, the Board has already paid approximately $164,431.70 to implement these provisions for the 2013-2014 and 2014-2015 school years.  The Board also estimates costs of $174,577.70 to implement those provisions for the 2015-2016 school year and moving forward.  These costs include identification/screening expenses, salary and benefits for appropriately certificated full time and part time staff to provide instruction, professional development costs, and additional costs relative to materials and programs to be provided.

                As set forth more fully above, there is no dedicated funding provided to offset these costs, and the Board is in turn forced to enact local measures in order to comply with the statutes.  The lack of dedicated State funding to reimburse local school boards for their significant direct expenditures required to implement the 2013 dyslexia laws results in those provisions constituting unfunded mandates under N.J.S.A. 52:13H-2 and N.J. Const. Art. VIII Sec. 2, Par. 5.  Therefore, we respectfully request that the Council find the 2013 dyslexia laws and their implementing regulations to be unfunded mandates, for which financial relief is issued.

The above summary is a quotation from the Complaint filed by Nathanya G. Simon, Board Counsel, on behalf of the Rockaway Township Board of Education, on June 8, 2015.

Respondent, State of New Jersey, Department of Education Summary of Answer and Motion to Dismiss the Complaint:

                Respondent denies that the provisions of N.J.S.A. 18A:46-55, 18A:6-130 to -131, and 18A:40-5.1 to 5.4 constitute unfunded mandates.  N.J.S.A. 18A:46-55 directs the State Board of Education "to promulgate regulations that incorporate the International Dyslexia Association's definition of dyslexia into...the New Jersey Administrative Code."  N.J.S.A. 18A:6-130 requires "the State Department of Education to provide professional development opportunities related to reading disabilities, including dyslexia, to school district personnel" and N.J.S.A. 18A:6-131 requires the State Board of Education to "require certain teaching staff members to annually complete at least two hours of professional development instruction on the screening, intervention, accommodation, and use of technology for students with reading disabilities, including dyslexia."  N.J.S.A. 18A:40-5.1 to -5.4 require local boards of education to ensure that students who exhibit one or more of the identified "potential indicators of dyslexia or other reading disabilities" are screened, using a screening instrument selected by the school board, no later than the completion of the first semester of second grade.

                All of these provisions relate to identifying students with dyslexia and ensuring that they are receiving any necessary educational services.  Dyslexia is a "specific learning disability" under the Individuals with Disabilities Education Act, 20 U.S.C. ยง 1401 (30) (B), and thus none of the challenged statutes are unfunded mandates because they are required to comply with the federal law.  Further, dyslexia was included within the Administrative Code's definition of a "specific learning disability" prior to the enactment of any of these statutes, and therefore the statutes simply revised existing requirements and do not impose any additional obligations on the districts.

                Beyond that, each local school district receives state aid and has the discretion to utilize that state aid to support any alleged costs associated with identifying and providing services for students with dyslexia.

                WHEREFORE, Respondent requests that the Council on Local Mandates dismiss Claimant's Complaint.

                The above summary is a quotation from the Answer and Motion to Dismiss the Complaint filed by Lauren A. Jensen, Deputy Attorney General, on behalf of the State of New Jersey, Department of Education on May 18, 2015.