This past November, the Appellate Division of the Superior Court, the state’s second highest judicial tribunal, determined that parents appealing a board’s initial ruling under the Anti-Bullying Bill of Rights Act, N.J.S.A.18A:37-13 et seq., are not entitled to the full panoply of rights granted to students facing long-term suspensions or expulsion.

In this matter, a second-grade student was alleged to have bullied a classmate while that classmate was in the process of gender transition. The allegation arose from the student’s inappropriate questioning of the transitioning student. The antagonist intimidated and teased despite being told not to question the clothing the transitioning student chose to wear. The board, relying on this allegedly repeated conduct, determined the antagonist violated the district’s Harassment, Intimidation and Bullying (HIB) policy.

The parents filed an appeal before the New Jersey Commissioner of Education seeking to overturn the board’s determination and to expunge their child’s disciplinary record of the HIB violation. That appeal was assigned to an administrative law judge who, after a five-day hearing, issued a 38-page initial decision, finding that the district’s investigation was riddled with mistakes and was deficient with respect to an incident that occurred in the cafeteria. The judge also made a detailed creditability finding and ultimately held that the board was arbitrary, capricious, and unreasonable. Upon review of the initial decision, the commissioner rejected the initial decision, determined that the antagonist did commit an act of HIB, and concluded that the board’s decision was not arbitrary, capricious, or unreasonable.

In appealing to the Appellate Division, the parents of the antagonist argued that the HIB statutes and supporting regulations did not afford a proper measure of due process to their child. They asserted that the consequences of an HIB violation were comparable to a long-term suspension and that students accused of HIB should be afforded comparable rights. Specifically, the parents argued that students facing a long-term suspension should be provided a pre-hearing notice, the specific testimony to be offered against the student, the charges, and the right to cross-examine witnesses.

However, the court declined to order such a process for HIB hearings. The court noted that due process is a flexible concept that depends on the liberty interest at stake. The court disagreed with the parents that the interests at stake in long-term suspensions are comparable to those in an HIB hearing in large part because HIB determinations are confidential and not readily accessible by the public. Additionally, the court noted the lack of evidence that the board’s HIB finding would jeopardize the student’s chances at college admission. It should be noted however, that the court remanded the matter to the commissioner on other grounds.

You may read more information about this case here, or you may wish to consult with the board attorney, or a staff attorney at NJSBA, (609) 278-5254.