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12 N.J.A.R. 232

North Hunterdon Regional School District Bd. of Ed.; B., E. v
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Citation: 12 N.J.A.R. 232
Decision Date: 1986
Agency: DEPARTMENT OF EDUCATION
Synopsis: Petitioner, a female high school student, was not permitted to try out for the boys' football team. She flied a complaint before the Commissioner of Education claiming discrimination based on sex and also requested a temporary restraining order prohibiting respondent from denying her the right to try out for the team. The matter was transmitted to the Office of Administrative Law for a hearing. The administrative law judge assigned to the case granted the restraining order, directing respondent to permit the petitioner to try out for the team. This recommendation was adopted by the Com- missioner of Education. Respondent did not continue to oppose peti- tioner's participation on the football team after the Commissioner's ruling. The only remaining issue was whether the Commissioner of Education had authority to award petitioner counsel fees and costs. Petitioner was permitted to amend the initial pleadings to include an allegation that respondent's actions had constituted discrimination under the Law Against Discrimination, N.J.S.A. 10:5-1 et seq. That statute vests the Director of the Division on Civil Rights with the authority to award attorney's fees. There is no similar statute authorizing the Commissioner of Education to award counsel fees in education law disputes. The administrative law judge rendered an initial decision conclud- ing that the Commissioner had ancillary authority to grant fees and recommending an award to petitioner. Upon review, the Corn- State of New Jersey 233 E.B.v. Hunterdon Reg. Bd. of Ed. missioner rejected this initial decision, stating that he declined to grant counsel fees without specifically being given that authority by statute or court rule. The State Board affirmed the decision of the Com- missioner. The Appellate Division reversed and remanded. The court held that while the Commissioner of Education did not have authority to award counsel fees under education law, he could grant fees under the Law Against Discrimination. The New Jersey Supreme Court reversed the Appellate Division. Anne P. McHugh, Esq. (Pellettieri, Rabstein and Altman, attorneys) and P. Kay McGahen, Esq. (McGahen, Dempsey & Casey, at- torneys) co-counsel for petitioners James P. Granello, Esq., for respondent (Murray & Granello, at- torneys) Michael J. Herbert, Esq., for intervenor, New Jersey State Inter- scholastic Athletic Association (Sterns, Herbert & Weinroth, at- torneys) Paula A. Mullaly, General Counsel, amicus curiae, New Jersey School Boards Association (Cynthia J. Jahn, Assistant Counsel, on the letter memorandum)
Rule(s) Cited: 6:4-1.5 
Statute(s) Cited: 10:5-1 et seq. 10:5-27.1 
Citation Tracker rejected-Com'r of Ed.; affirmed -St. Bd.; reversed & remanded-225 N.J. Super. 221 (App. Div. 1988); reversed & remanded-117 N.J. 434 (1990) [Updated through 1991]