In July, the New Jersey Commissioner of Education handed down a decision that helps clarify what rights a teacher can expect to exercise after allegedly violating a school district’s anti-bullying policy.

In DeFalco v. Hamilton Twp. Bd. of Educ., a tenured Spanish teacher had a hard time getting a student to participate in class. The student, who was classified as eligible for special education and related services, refused to cooperate in classroom activities, lay his head on the desk and declined DeFalco’s offer to visit the nurse’s office, the guidance office, or  his case worker. DeFalco instructed the student to go to the “In-School Alternative Program” if he wanted to lay on the desk, as such conduct was not permitted in the classroom.

According to the student’s education assistant/in-class aide, who was present at the time, DeFalco asked the student, in front of his classmates, whether he wanted to talk to someone in those offices because if the work was too difficult for him, maybe they could help him or put him in a different class; his classmates laughed at the exchange. Subsequently, the student reported that DeFalco insulted his intelligence and disrespected him, and he refused to return to her class.

The district’s investigation determined that DeFalco violated the district’s anti-bullying policy. The superintendent placed a letter in her personnel file and she was directed to attend training on harassment, intimidation and bullying (HIB) and building positive classroom relationships. DeFalco appealed to the board and was granted a hearing during which she presented her version of events, but was not afforded an opportunity to cross-examine any witnesses to the event. The board subsequently affirmed the superintendent’s investigation and related personnel actions.

DeFalco then appealed the board’s determination to the commissioner. In her argument, DeFalco sought to overturn the board’s decision, asserting a denial of her Sixth Amendment right to cross-examine witnesses during the board hearing. That amendment provides that in all criminal cases, the accused shall enjoy the right to be “confronted with the witnesses against him….” DeFalco argued that because the board relied only upon the results of the investigation as reported by the superintendent, her right to confront witnesses had been violated; therefore, the board’s decision must be reversed.

In an initial decision that was fully adopted by the commissioner, the administrative law judge (ALJ) upheld the board’s determination, finding that it was not arbitrary or capricious. In reaching the decision, the ALJ carefully examined DeFalco’s asserted denial of a constitutional right and noted that, while the right to cross-examination has been extensively recognized in criminal proceedings, its applicability in administrative proceedings is less certain. The decision concluded that the legislature did not mandate an “evidentiary” hearing in HIB matters, nor did the penalties involve a loss of tenure, employment, or future employment.

The decision also noted, “[t]he due process/fundamental fairness requirement in (an) HIB inquiry is met by a process in which the staff member is made aware of the charges and evidence upon which the charge is based before the Board hearing, and is then able to present to the Board such documents, witnesses, and testimony and argument as the staff member may offer.”

School boards are encouraged to discuss the procedures and requirements for HIB hearings with their board attorney. For additional information, please contact the NJSBA Legal and Labor Relations Department at (609) 278-5254.