Earlier this month, the New Jersey Appellate Division upheld a finding that a special education teacher’s conduct that called unwanted attention to a student was not harassment, intimidation, or bullying (HIB), even if the teacher’s conduct made the student feel uncomfortable.

In reaching this conclusion, the court determined that the teacher had an obligation to carry out the student’s Individualized Education Program (IEP) and the conduct was not motivated by the student’s disability or other characteristics.

In S.A. and C.A. o/b/o G.A. v. Moorestown Board of Education, the parents of a sixth-grade special education student alleged that the teacher committed acts of HIB by hovering over the student’s desk, requesting to see the student’s test scores in the presence of other students, and otherwise calling attention to the student in a manner that made the student feel uncomfortable.

They further alleged that there was an incident when, after the student refused to allow the teacher to see the student’s work during class, the teacher pulled the paper away, threw it on the teacher’s desk, and “stormed out of the room.”

The parents made multiple unsuccessful requests to the teacher and school officials that the teacher cease her conduct and ultimately filed an HIB complaint. Though the district made a change to the student’s schedule, the district’s investigation did not find HIB in regard to the teacher’s conduct and the board affirmed the investigation’s findings.

The parents appealed the board’s decision, and the administrative law judge (ALJ) hearing the matter upheld the board’s decision, finding that the conduct failed to meet any element of the statutory definition of HIB and the conduct “could not have been reasonably perceived as having been motivated by [the student’s] disability or other characteristics.” The commissioner adopted the ALJ’s decision, which the parents then appealed.

On appeal, the Appellate Division affirmed the commissioner’s decision. In its decision, the court was careful not to diminish the student’s complaint and noted: “[i]n reaching this conclusion, it is not our intention to minimize or downplay the feelings of a child in a classroom.”

Notwithstanding the court’s recognition of the student’s feelings, the court found that the teacher had an obligation to implement the student’s IEP, and, even if her conduct was insensitive or unkind, there was no evidence that it was motivated by an actual or perceived distinguishing characteristic of the student. Moreover, there was no evidence of substantial disruption or interference with the orderly operation of the school or the rights of the student.

In summary, the commissioner’s decision was not arbitrary, capricious, or unreasonable, or otherwise unsupported, such that overturning the commissioner’s decision would be merited.

School districts are encouraged to discuss this decision as well as the requirements of the New Jersey Anti-Bullying Bill of Rights Act and its related regulations with their board attorney. For additional information, please contact the NJSBA Legal and Labor Relations Department at (609) 278-5254.

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