In a case being closely followed by New Jersey School Boards Association, the Appellate Division, the state’s second highest court, recently affirmed the Commissioner of Education’s decision finding that the single use of a racial epithet during a social media chat among fifth graders did not amount to a violation of New Jersey’s Anti-Bullying Bill of Rights Act.
During the 2016-2017 school year, the parents of a fifth-grade student alleged that the student had been the victim of harassment, intimidation and bullying (HIB). The incident in question involved five fifth-grade students on an “iMessage” group chat – not at school. During the chat, a very spirited conversation took place among the students. At one point, a student on the chat referred to another student using a serious racial epithet. The parent saw the thread and immediately emailed the principal of the school. After an HIB investigation, the board held that the matter did not meet the criteria of an HIB violation because it took place off school grounds and did not “substantially interfere with the orderly operation of the school.”
The parent appealed to the commissioner and, during the hearing in the Office of Administrative Law, testified that the student’s grades had suffered and she did not want to return to school. However, evidence presented during the hearing contradicted that testimony, showing that the student’s grades had not been affected, that the student was “virtually unaffected, and that she appeared nonplussed by the incident.” The administrative law judge found that this incident was indeed a “conflict,” but not an act of bullying, because the judge found no indication that the incident substantially disrupted or interfered with the orderly operation of the school or the rights of the student. The commissioner adopted the judge’s decision and agreed that this matter did not qualify as an HIB violation.
By a decision dated Sept. 29, 2020, the Appellate Division upheld the commissioner’s ruling and, while very clear that the use of the racial epithet was in no way appropriate, agreed that the commissioner’s interpretation of the facts under HIB was not arbitrary, capricious or unreasonable.
Questions about this case and HIB should be reviewed with your board attorney or NJSBA’s Department of Legal and Labor Relations at (609) 278-5254.