The New Jersey Commissioner of Education recently issued several new decisions that affect boards of education.

In C.K. and M.K. o/b/o M.K. v. Bd. of Ed. of the Twp. of Voorhees, the board of education’s determination that a special education student’s action, reaching under a partition separating two bathroom stalls in the girl’s restroom, grabbing another student’s leg and asking for a “high five,” did not constitute an act of HIB, was not arbitrary, capricious or unreasonable. There was no evidence in the record that the student’s actions, while not appropriate, were motivated by any actual or perceived characteristic. However, the board failed to conduct a timely hearing within ten days of petitioner’s request and initially failed to investigate the matter. The initial failure to investigate was a result of the board’s misapplication of the “principal’s discretion.” Guidance issued by the New Jersey Department of Education provides that the principal or his/her designee may exercise his/her discretion in determining whether the allegations meet the threshold definition of HIB before initiating an investigation. However, whether a principal or his/her designee will initiate an investigation upon receipt of all reports of alleged HIB, or will initiate an investigation only in those cases where the allegations meet the criteria in the act, depends on the HIB policy adopted by the local board of education. The board’s HIB policy did not provide for such discretion.

No remand was necessary as the outcome would remain the same; the student’s conduct was not reasonably perceived as being motivated either by an actual or perceived characteristic. The corrective action ordered by the Camden County Office of Education was an appropriate remedy and ensured that the board would conduct HIB investigations in accordance with the board’s policy and the Anti-Bullying Bill of Rights Act; would initiate and complete investigations in accordance with the provisions of the act, and would safeguard the due process rights of all parties involved.

In C.J. o/b/o minor children v. Bd. of Ed. of Twp. of Willingboro, a parent sought out-of-district placement for her four children, alleging that they were being abused and bullied and were afraid to go to school. One child was eligible for special education services and was the subject of a separate action. However, the parent had not taken any action to have the other children classified and had not filed any HIB petitions with the school district. While there appeared to be a claim arising under the Anti-Bullying Bill of Rights Act, the procedural requirements for raising a claim within the school district had not been followed with the board. The administrative law judge (ALJ) recommended that the petition be dismissed. The commissioner agreed.

In Chiodi, Borrelli and Bittner v. Eitner, three teachers in the Waterford Township school district filed a verified petition seeking to have the superintendent’s certificate revoked on the grounds that he engaged in conduct unbecoming, age discrimination, invasion of privacy and a violation of the district’s HIB policies. The ALJ determined and the commissioner agreed, that the commissioner did not have jurisdiction over any of these claims, as they did not arise under the school laws. The authority to revise or suspend certificates of teachers or administrators lies exclusively with the State Board of Examiners. While HIB issues were alleged, no appeal of an HIB determination was implicated, nor would an allegation be appropriate as the Anti-Bullying Bill of Rights Act does not contemplate HIB complaints from school employees; only students are deemed victims with a right of action under the act. The petition was dismissed.

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