During the past few years, New Jersey’s education commissioner decided several cases that involved harassment, intimidation and bullying (HIB) in schools.

These decisions provide greater insight into how the commissioner views the topic.

It is important to remember that when the commissioner upholds a determination of the board of education, it does not mean that the commissioner necessarily agreed with what the board decided and/or how it handled the situation.

The commissioner reviews decisions on an “arbitrary and capricious basis.” So long as the board of education has a rational basis for the decision it makes, and has not violated the procedural aspects of an HIB investigation, she will uphold the decision.

Similarly, there are times when the commissioner rules against the board of education, not because the actions in the matter do not constitute an act of HIB, but because the facts have not been properly proven. Board members are encouraged to review these cases with their school board attorney/solicitor.

Case Law Update

In G.C. o/b/o C.C. v. Board of Education of the Township of Montgomery, decided in April 2016, the commissioner determined that a board of education did not act in an arbitrary or capricious manner when it determined that a sixth grade student’s comments in the cafeteria about his classmate’s vegetarian lifestyle constituted an act of harassment, intimidation and bullying (HIB). The student was disciplined by the assignment of five lunch-time detentions. The student’s comments regarding the victim’s decision not to eat meat included “it’s not good to not eat meat;” “he should eat meat because he’d be smarter and have bigger brains” and “vegetarians are idiots.” The comments constituted verbal communications that were reasonably perceived to be motivated by a distinguishing characteristic, vegetarianism, which substantially interfered with the rights of the victim and had the effect of insulting and demeaning him.

In R.A. o/b/o B.A. v. Board of Education of the Township of Hamilton, published in June 2016, the commissioner held that a board of education’s determination, that incidents among middle school girls did not constitute HIB, was not arbitrary, capricious or unreasonable. The incidents in question were student conflict and did not rise to the level of HIB. No distinguishing characteristic motivated the girls’ conduct. The allegations over a two-year period included attending a birthday party to which the other girls were not invited, not attending a baseball game with the other girls, name-calling, throwing a blown-up paper bag in her face, glaring stares, stomping and kicking of her lunch bag, kicking it into the hallway and additional name-calling. In reaching the initial decision, the administrative law judge (ALJ) stated:

“A dispute between students such as a relationship falling apart between former friends, a fight over a piece of property or some form of personal vendetta of one against another is not conduct based on a “distinguishing characteristic” of the victim and thus, does not constitute a violation of the Act. This is because a personal breakdown in a relationship between students is a mutual non-power based conflict that is not about a characteristic of the targeted student.”

No HIB was found.

In Stephen Gibble v. Board of Education of the Hunterdon Central Regional School District, in July 2016, the commissioner addressed a matter which involved a former wrestling coach, who was found by the board of education to have committed an act of HIB. The wrestling coach on two occasions during a summer wrestling camp, stated to a student wrestler, who was a special education student, that he hoped the student “did not have access to any weapons or keys to the gun closet.” The ALJ determined that the board failed to comply with the investigatory process outlined in the Anti-Bullying Bill of Rights Act (Act) and granted summary judgment in favor of the coach, ordering all references of HIB to be removed from the coach’s file. The commissioner agreed with the ALJ that staff members who are accused of committing an act of HIB are entitled to the due process guaranteed by the Act, including the right to a hearing before the board. The commissioner found that the ALJ erred in dismissing the case and removing all references to HIB from the coach’s file. The matter was remanded to the board of education for a hearing before the board.

In L.P. and H.P. o/b/o L.P. v. Board of Education of the West Morris Regional High School District, decided in July 2016, the commissioner reviewed a matter regarding allegations of bullying between two women fencers. The ALJ determined that board’s determination that a series of alleged acts between a senior woman fencer and a freshman woman fencer did not constitute acts of HIB was not arbitrary, capricious or against the weight of the evidence. The freshman female fencer could not prove that alleged incidents occurred or constituted acts of HIB. In reaching this decision, the ALJ stated:

“The events between L.P. and the other female fencing team members as set forth are not even alleged to have been “motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic.” (N.J.S.A. 18A:37-14) It was reasonable for the Board to conclude that the circumstances, which certainly showed a conflict between L.P. and the girls, did not rise to the level of bullying under the Act, even to the extent that any of the incidents had been corroborated, which they were not… I understand and appreciate that petitioners might be viewing the matters as constituting “bullying” under a more common place or lay meaning of that term, and there might have even been a clear demonstration of poor sportsmanship, but the Act sets forth a specific legislative definition and regulatory response.”

The commissioner concurred with the findings and conclusions of the ALJ.

In S.C. o/b/o K.C. v. Bd. of Ed. of the Twp. of Montgomery, from August 2016, the commissioner and the ALJ agreed that the board did not act in an arbitrary, capricious or unreasonable manner when it determined that comments made among three female students at lunch did constitute an act of HIB. The students said that the victim was anorexic because her eating habits had changed, took the victim’s iPod and texted a boy she was dating that she was anorexic. The comments were reasonably perceived to be motivated by a distinguishing characteristic, a perceived eating disorder, anorexia, which substantially interfered with the victim’s rights and had the effect of insulting or demeaning her. The parents of one of the girls challenged the determination of HIB; however it was found that they failed to meet their burden of proof.

In D.D.K. o/b/o D.K. v. Bd of Ed. of the Twp. of Readington, decided in November 2016, the commissioner and the ALJ determined that the board did not act in an arbitrary and capricious manner when it determined that a student was not a victim of HIB. The case involved two separate incidents from May 2014 when the alleged victim was a seventh-grade student. The first incident involved students on the school bus referring to the alleged victim as a “know it all.” An investigation determined that this was a conflict between students regarding their comparative math abilities and was not reasonably perceived to be motivated by an actual or perceived characteristic. The allegation that student was referred to as “smarty pants” and a “dumb ass Asian” were not substantiated. The second incident involved a homeroom incident on Spirit Day where a student “joked” to the alleged victim, who was wearing a yellow shirt, saying “you’re already yellow, you’re Asian.” While the comments were motivated by race and color, occurring on school property, and, whether intentional or unintentional, had the effect of insulting or demeaning the alleged victim, it did not substantially disrupt or interfere with the orderly operations of the school or the rights of other students and as such was not an act of HIB. The victim’s response was to say “fortunately, this was not problematic for my learning experience, but it ticked me off at the time.” No HIB was found.

Unable to Identify the Internet Poster In G.J. o/b/o S.J. v. Bd. of Ed. of the Twp. of Plumsted, in November 2016, the commissioner and the ALJ determined that board did not act an arbitrary, capricious or unreasonable manner when it determined that no findings of HIB had occurred. The matter involved a series of inappropriate internet postings, photographs, pictures with overlaid text about the alleged victim, the content of which constituted HIB. Neither the board’s investigation nor the board’s technology team could identify the parties responsible for the internet posts. The Ocean County Prosecutor’s Office was brought in to investigate but could not identify the responsible parties. The board of education complied with all substantive and procedural requirements of the HIB law; all investigations, reports and hearings were properly completed. The parent failed to meet his burden of proof that the board failed to comply with the provisions of the HIB law.

In J.L. o/b/o A.L. v. Bd. of Ed. of the Bridgewater-Raritan Regional School District, in December 2016, the board of education determined that a seven-year-old student committed an act of HIB when she, as one of several girls on the school bus, made fun of a classmate because of her speech disability. The recommended action included a verbal reprimand, telephoning the parents and changed bus seating. The parent sought a reversal of the HIB determination and removal of any reference to incident from the student’s record.

The ALJ determined that board committed three procedural errors, making the HIB determination arbitrary and capricious. The ALJ ordered that the HIB determination be reversed and all reference to HIB be removed from the student’s record. The three procedural errors were:

  • Board failure to issue a written decision affirming, rejecting or modifying the superintendent’s decision. Neither the board minutes nor the principal’s letter to the parents constituted a written decision.
  • Board failure to provide the required information to the parents after the superintendent report was sent to the board.
  • Board incorrectly advised the parents that there was a 10-day-limitation on requesting an appeal hearing before the board.

The ALJ determined that the board’s use of a committee to review the HIB matter and subsequently report to the board was a procedurally acceptable practice.

The commissioner agreed that: (a) the board’s use of a committee to review the matter and report to the board was appropriate; (b) the board failed to issue a written decision affirming, rejecting or modifying the superintendent’s decision (Neither the board minutes nor the principal’s letter constituted a written decision); and (c) the board failed to provide required information to the parents after the superintendent reported to the board. However, given the communication among the parties, failure to include the discipline in the principal’s letter was too minor to merit consideration.

The commissioner disagreed with the ALJ on:

  • Advising the parties that there was a 10-day limitation on requesting a hearing was unreasonable given the lack of timelines in the statute. A board-set timeline would not violate the parent’s due process rights under the Act.
  • The HIB finding should not be reversed. The matter should be remanded for a hearing.

The commissioner remanded the matter back to the board and ordered the board to conduct a hearing and issue a proper written decision in this matter.

In M.R. o/b/o M.R. v. Bd. of Ed. of the Ramapo Indian Hills Regional High School District, decided in December 2016, the commissioner and the ALJ agreed that a board determination that a student was not a victim of HIB was not arbitrary, capricious or unreasonable. The cheerleading coach responded with a “strong bullying tone” after he received a text message from the student on the afternoon of a scheduled basketball game that she could not attend the game because her friends had planned a holiday party for that night. The student and three other cheerleaders were initially thrown off the team but were reinstated following the launch of an HIB investigation. The student alleged that the coach’s behavior towards her and the other three girls at halftime of the next game made her feel singled out and fearful that she was becoming a target and that the cheerleading team had become a hostile environment. The board found no evidence that the actions of the coach were motivated by any actual or perceived characteristic; no act of HIB occurred.

In R.S. o/b/o G.M. v. State Operated School District of the City of Paterson, decided in January 2017, a parent challenged the board’s determination that student was not the victim of acts of HIB. The parent alleged that the daughter was bullied based on her diagnosis of autism spectrum disorder and selective mutism. The alleged acts of HIB included grabbing the student by her shoulder, grabbing her phone, preventing her from entering gym class and blocking her from going in her locker. The ALJ determined that matter was moot as the student and all alleged perpetrators have graduated from the district schools. The commissioner disagreed. The fact that students have graduated is not relevant to whether the alleged conduct constituted HIB. The parent’s challenge to the HIB investigation, and the district’s finding that the alleged conduct did not rise to the level of HIB has not been addressed. The matter was remanded to the OAL for further proceedings to resolve the underlying claim on the merits.

In D.V. o/b/o N.V. v. Bd. of Ed. of the Township of Edison, in February 2017, a grandparent alleged the board of education allowed acts of HIB during the student’s participation in a lacrosse program operated by the township recreation department; a program not affiliated with the school district. The petitioner failed to attend the OAL hearing. The ALJ concluded that the matter had been abandoned. The commissioner agreed and dismissed the petition.

In C.K. and M.K. o/b/o M.K. v. Bd. of Ed. of the Twp. of Voorhees, in March 2017, the commissioner determined that 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, board failed to conduct a timely hearing within ten days of petitioner’s request and initially failed to investigate the matter in March 2015. The initial failure to investigate was a result of the board’s misapplication of the “principal’s discretion.” Guidance issued by the NJDOE 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 allegation 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 conducts HIB investigations in accordance with the board’s policy and the Act; initiates and completes investigations in accordance with the provisions of the Act, and safeguards the due process rights of all parties involved.

In C.J. o/b/o minor children v. Bd. of Ed. of Twp. of Willingboro  in March 2017, a parent sought an out-of-district placement for her four children, alleging that they had been abused and bullied and were afraid to go to school. The parent refused to send the children to school and had not taken any action to have the other children classified and had not filed any HIB petitions or complaints with the school district. One child was eligible for special education services and was the subject of a separate action. The relief which was sought by the parent was unclear except for the demand to send them out-of-district. The parent did not state where she wanted them to be placed or on what legal grounds she sought an out-of-district placement. 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 by the parent. The parent alleged that her children were experiencing issues that may require an evaluation under the IDEA, but such evaluation must be initiated by request to the school, and appealed to the Office of Special Education Services; the petitioner has not alleged any legal or factual basis for an out-of-district placement for her children. The ALJ recommended that the petition be dismissed; the commissioner agreed.

Michael Kaelber was an NJSBA attorney from 1988 until his retirement on July 1, 2017. He was most recently NJSBA’s director of legal and labor relations services.

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