B.M., on behalf of minor child, C.M. v. Board of Education of the Bergen County Vocational Schools, Bergen County, 8/2/21, (#157-21)

157-21
New Jersey Commissioner of Education
Decision
B.M., on behalf of minor child, C.M.,
Petitioner,
v.
Board of Education of the Bergen County
Vocational Schools, Bergen County,
Respondent.
Synopsis
Pro se petitioner disputed the respondent Board’s finding that her son, C.M., committed an act of
harassment, intimidation or bullying (HIB) against a fellow student pursuant to New Jersey’s Anti-
Bullying Bill of Rights Act, N.J.S.A. 18A:37-13.2 et seq (the Act). After an investigation by the school’s
anti-bullying specialist, the Board determined that C.M. had committed an act of HIB when he
approached a female classmate from behind and grabbed her buttocks. Petitioner claimed, inter alia, that
C.M. was “discriminated against” in the course of the HIB investigation, causing him academic and
emotional harm. The Board filed a motion for summary decision, contending that the HIB investigation
was properly conducted and that the Board was not arbitrary, capricious or unreasonable in making the
determination that C.M.’s conduct constituted HIB.
The ALJ found, inter alia, that: an action by a board of education is entitled to a presumption of
correctness unless it is proven to be arbitrary, capricious or unreasonable; under the Act, “harassment,
intimidation, or bullying” is broadly defined as any gesture, any written, verbal, or physical act, or any
electronic communication that is reasonably perceived as motivated by any actual or perceived
distinguishing characteristic, such as race, color, religion, ancestry, national origin, gender, sexual
orientation, gender identity and expression, or a mental, physical, or sensory disability, that takes place on
school property and substantially disrupts the orderly operation of the school; in the instant case, the
record reflects that C.M. did not deny touching his classmate’s buttocks, but characterized the physical
contact as a “poke” rather than a “grab”; petitioner does not dispute that C.M. committed the act, nor that
the school district was required under the HIB statute to report, investigate, make findings, and decide
consequences based upon C.M.’s conduct; and petitioner has neither alleged nor shown that the district’s
handling of the HIB complaint against C.M. was arbitrary, capricious, or unreasonable. The ALJ
concluded that the Board’s determination of HIB was appropriate as C.M.’s uninvited touching of a
fellow student violated the Act; further, petitioner presented no genuine issue of material fact, and the
overwhelming weight of the evidence in this case has been presented by the Board. Accordingly, the ALJ
granted the Board’s motion for summary decision and dismissed the petition.
Upon review, the Commissioner concurred with the ALJ that the Board did not act in an arbitrary,
capricious, or unreasonable manner in rendering its HIB determination pursuant to the Act. Accordingly,
the Initial Decision of the OAL was adopted as the final decision in this matter, and the petition was
dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It
has been neither reviewed nor approved by the Commissioner.

1
OAL Dkt. No. EDU 06600-20
Agency Dkt. No. 83-4/20
New Jersey Commissioner of Education
Final Decision
B.M., on behalf of minor child, C.M.,
Petitioner,
v.
Board of Education of the Bergen County
Vocational Schools, Bergen County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed. The parties did not file exceptions.
In this matter, the Bergen County Vocational Schools Board of Education determined
that C.M. committed an act of harassment, intimidation and bullying (HIB) when he grabbed a female
student’s buttocks. Upon review, the Commissioner agrees with the Administrative Law Judge that the
Board did not act in an arbitrary, capricious, or unreasonable manner in rendering its HIB determination,
pursuant to the Anti-Bullying Bill of Rights Act, N.J.S.A. 18A:37-13 et seq.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in this
matter, and the petition is hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to
N.J.S.A. 18A:6-9.1. Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate
Division within 45 days from the date of mailing of this decision.
157-21
August 2, 2021
August 3, 2021

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 06600-20
AGENCY DKT. NO. 83-4/20
B.M. ON BEHALF OF C.M.,
Petitioner,
v.
BERGEN COUNTY VOCATIONAL SCHOOLS
BOARD OF EDUCATION,
Respondent.
_______________________________________
B.M., petitioner, pro se
William C. Soukas, Esq., for respondent (Nowell, P.A., attorneys)
Record Closed: April 5, 2021 	Decided: June 17, 2021
BEFORE LESLIE Z. CELENTANO, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Petitioner, B.M. on behalf of C.M., filed a Petition of Appeal to the Commissioner
of Education in which B.M. disputes the finding of respondent Bergen County Vocational
Schools Board of Education that her son C.M. committed an act of harassment,
intimidation, or bullying (HIB) pursuant to N.J.S.A. 18A:37-13.2 et seq.

OAL DKT. NO. EDU 06600-20
2
The Department of Education transmitted the matter to the Office of Administrative
Law (OAL), where it was filed on July 7, 2020. N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-
1 to -13. Respondent filed a motion for summary decision and petitioner made multiple
submissions thereafter.1 	The record remained open for respondent to submit a reply
once petitioner filed her final submission.2
FACTUAL DISCUSSION
At an off-school-grounds Halloween gathering in 2019, C.M., a male junior at the
Bergen County Academy for Visual and Performing Arts (AVPA), approached a female
classmate and acquaintance, N.L., from behind, and without invitation “grabbed her
buttocks with both of his hands,” she reported later to a school counselor. (Sheridan Cert.
at ¶ 5.) 	The report was corroborated by another student, who told the school’s anti-
bullying specialist (ABS) that she saw “C.M. come up behind N.L. and touch and ‘jiggle’
N.L.’s buttocks with two hands.” (Resp’t’s Letter Br. at 5.) As N.L. described the incident,
“[C.M.] grabbed my arm and waist and pulled me around harshly, . . . made sex noises in
my ear and rubbed his front side up against mine in the middle of us speaking. He came
up to me from behind and jiggled my butt. 	He followed this action by calling me ‘thicc’
[sic] and cornering me with his body invading my space . . . .” (Resp’t’s Ex. A at 23.)
N.L. also reported that two days prior to Halloween, after she and C.M. were
dropped off at his house after a play rehearsal and he told her his parents were not home,
he tried to force her to touch his genitals, “pinned her down and mounted her, and sexually
harassed her the entire evening despite her repeatedly telling him to stop.” 	(Sheridan
Cert. at ¶ 5.) N.L. alleged a two-year history including disturbing and unwelcome physical
and verbal acts by C.M. against her and others, including several incidents of C.M.
touching her breasts without permission, at least once in school. (Resp’t’s Ex. A at 17–
18.) She also said C.M. often made racial, anti-Semitic, and anti-gay remarks and called
1 None of petitioner’s submissions included the reply affidavit required pursuant to N.J.A.C. 1:1-12.5(b).
2 This decision is filed in accordance with Governor Phillip Murphy’s Executive Order 127 issued April 14,
2020, created by the COVID-19 emergency.

OAL DKT. NO. EDU 06600-20
3
people “fat.” (Id. at 20.) N.L. reported “that she is frightened of C.M. and doesn’t feel safe
or comfortable in his presence.” (Sheridan Cert. at ¶ 5.)
School officials reacted quickly to N.L.’s HIB complaint. 	On November 4, 2019,
the day of her report, the counselor verbally reported her complaint to the vice principal
of the Bergen County Academies, a magnet high school housing the AVPA program that
is overseen by the Board of Education of the vocational schools in the County of Bergen.
The complaint was also reported to the district’s ABS. The parents of N.L. and C.M. were
notified that day that N.L. had filed an HIB report against C.M. (Resp’t’s Cert., Ex. A, at
2.) 	Meetings were held with each student, their parents, the Academies’ vice principal,
and the ABS, who initiated an HIB investigation. (Resp’t’s Ex. A at 3.) N.L.’s allegations
were also transmitted by the district to the school resource officer with the Bergen County
Sheriff’s Department, which later reported that the report was investigated but no juvenile
or criminal charges would be brought. (Id. at 4.)
On November 6, 2019, a written HIB report was signed by the vice principal. (Id.
at 1B.) 	Ten school days after N.L.’s initial report, on November 18, the ABS’s
investigation, including interviews with N.L., C.M., and eight witnesses, was completed.
(Id. at 3.)
In his interview with the ABS on November 13, 2019, C.M. said he never intended
to “harass, intimidate, or bully anyone and does not believe any of his actions had this
impact.” (Resp’t’s Ex. A at 9–10.) The student acknowledged that he touched N.L. at the
Halloween gathering, but stated that he was “just trying to get [N.L.] to turn around” as
the group stood together at an overlook, and the touch was not “in the way he is being
accused of.” 	(Ibid.) 	He stated that N.L. turned around and asked him, “‘Did you poke
me?’” C.M. said he responded “yes,” and N.L. replied, “oh, ok.” (Ibid.)
In the interview, C.M. “admitted that at the beginning of sophomore year, he did
‘flip’ the breast of his friend/classmate,” and said “it only happened 2–3 times . . . .” (Ibid.)
C.M. also stated that starting with freshman year, “joking and comments about each other
were part of the culture of their group,” and “it was their way of responding/dealing with”
hatred, “to give it less power[.]” 	(Resp’t’s Ex. A at 9.) 	C.M. expressed a belief that no

OAL DKT. NO. EDU 06600-20
4
one was offended by his behavior, and said, “other people have engaged in the same
conduct and comments and that it is the culture among his friend and peers,” although he
told the ABS that in freshman year, classmates told him his jokes went “too far” and they
bothered them. (Ibid.)
The ABS’s Final Report and HIB Intervention Plan were completed on November
21, 2019. (Sheridan Cert. at ¶ 11.) The report found that C.M.’s actions met the elements
of an HIB violation. 	The ABS concluded that C.M.’s behavior was motivated by a
“distinguishing characteristic” of N.L.—in this case, race, sexual orientation, and weight
of the victim, categories enumerated in N.J.S.A. 18A:37. (Resp’t’s Ex. A at 2.) The ABS
determined that the incident “substantially disrupted or interfered with the orderly
operation of the school or rights of other students and insulted or demeaned a student or
group of students,” which are also elements of HIB. 	(Resp’t’s Br. at 3–4.) 	She noted,
“C.M. did not seem remorseful nor wrong [sic] for any of the comments or actions he has
made.” (Resp’t’s Ex. A at 2.)
As a result of the HIB determination, consequences were imposed on C.M. aimed
at separating N.L. and him and preventing contact between them, “to ensure that N.L. felt
safe while at school.” (Sheridan Cert. at ¶ 14.) C.M. was excluded from that fall’s school
play to avoid interaction with N.L., who also was in the play. 	He was removed from
classes shared with N.L., including his theater classes, and given individualized theater
instruction by the same teacher. His schedule was changed to eliminate potential contact
with N.L., and he was excluded from the spring play and a class trip to London. (Ibid.)3
He was suspended for five days as “a matter of student discipline relating to C.M.’s
conduct with other students[.]” 	(Sheridan Cert. at ¶ 15.) 	The suspension was later
removed from C.M.’s records at his and his parents’ request. (Ibid.)
The vice principal notified C.M.’s parents about the consequences on November
26, 2019. (Resp’t’s Ex. B.) On December 10, 2019, the district superintendent reported
the HIB case to the Board of Education at its scheduled public meeting. (Resp’t’s Ex. C.)
3 	None of these consequences were actually suffered by C.M., as the shutdown of the district due to
COVID-19 resulted in the cancelation of the class trips and spring play and all other in-person activities.

OAL DKT. NO. EDU 06600-20
5
The next day the superintendent wrote to both students’ parents regarding the HIB
investigation results and his report to the Board. 	(Ibid.) 	He told the families they had a
right to a hearing before the Board. (Resp’t’s Ex. D.)
C.M.’s parents requested the Board hearing to appeal the HIB finding against their
son, and on January 28, 2020, the hearing was conducted in executive session. (Resp’t’s
Ex. E.) 	There, Board attorney William Soukas explained that the family had a right to
appeal to the Board, and that the hearing was “not to be adversarial,” and informed the
Board that it would hear from district witnesses and the family, according to the meeting
minutes. (Ibid.)
B.M. told the Board that her son “advised her that he had merely poked [N.L.],
rather than grabbed her buttocks.” She stated that “there is a culture in (the school) that
is ‘touchy feely’ and that this incident is nothing more than an extension of that conduct
. . . .” (Ibid.) She stated that C.M. and N.L. were close friends prior to the incident, and
she described her son as “the victim of a ‘me-too’ movement which resulted in harsher
treatment because of his male gender.” (Ibid.)
Petitioner was informed on February 10, 2020, that the Board had affirmed the
HIB finding against C.M. (Resp’t’s Ex. F), and of certain consequences the district had
imposed on C.M. for the remainder of the school year, including his removal from
performing arts classes, and rescheduling to reduce contact with N.L. 	(Ibid.) 	C.M. was
to continue to receive individualized study for theater. The Board affirmed that he would
not be permitted to participate in the spring play or the London trip. (Ibid.)
The Board also determined that C.M. could participate in certain extracurricular
and curricular activities during junior year with appropriate district measures to minimize
or eliminate interaction with N.L. (Resp’t’s Ex. F.) Fall-play auditions were rescheduled
from spring to fall in order to accommodate C.M. (Ibid.)
The petitioner expressed her displeasure with the Board’s decision to school
officials (Ibid.), and on or about March 18, 2020, filed a petition of appeal with the

OAL DKT. NO. EDU 06600-20
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Commissioner of Education, alleging that C.M. was “discriminated against” in the course
of the district’s HIB investigation, causing him academic and emotional harm.
THE PARTIES’ ARGUMENTS
While the touching that triggered the HIB allegation against C.M. is acknowledged
and undisputed by the pro se petitioner, petitioner takes issue with the district’s
determination that C.M.’s behavior constituted HIB, and with the consequences imposed
on C.M. 	In correspondence submitted, petitioner B.M. argues that C.M.’s physical
behavior with N.L., and the language he used with her and others, should be viewed
within the context of what petitioner claims is a school culture of permissive physical and
verbal expression, and of the long, friend/classmate relationship of N.L. and C.M.
Petitioner contends that the consequences were “grossly unjust,” and that C.M.
was “disciplined on unproven allegations” by school officials, whose actions isolated him
and made him a “target to be . . . abused,” and who “did nothing to intervene when we
raised the concerns of abuse toward him.” 	B.M. states that she and C.M. were never
“told by the school that there was a problem” with his behavior, and that C.M. “was never
given a chance to correct this and in fact had no ability to understand that this was wrong
since how he communicated was demonstrated by most of the students in the program.”
Petitioner B.M. acknowledges that the Board “removed some of the disciplinary
actions” initially imposed, but claims that her son was “denied the education he deserved”
and was traumatized by his treatment. In one letter she writes, “We know that we can’t
undo the damage but given our experiences we felt it necessary to pursue appeals.” In
another, apparently referring to the Board’s summary-decision motion, B.M. states, “We
remain concerned that there are efforts to dismiss this case and silence us.” B.M., who
appeals pro se, acknowledges administrative deficiencies in her filings with the OAL, but
pleads lack of knowledge of the legal system and procedures.
The Board argues that summary decision should be granted on several counts:
1) Petitioner has failed to show any genuine issue of material fact that would preclude
summary 	decision 	and 	dismissal 	of 	the 	petition, 	and 	instead 	has 	expressed

OAL DKT. NO. EDU 06600-20
7
“dissatisfaction with, and continued disbelief that C.M.’s behavior towards N.L. was found
to constitute HIB or merited consequences of any sort.” 	(Resp’t’s Br. at 3.) 	The Board
contends that petitioner’s “dissatisfaction” was “always clear and undisputed,” and “does
not 	constitute 	any 	material 	issue 	of 	fact 	precluding 	summary 	decision.” 	(Ibid.)
2) Petitioner failed to follow administrative procedure under N.J.A.C. 1:1-12.5(b) by
submitting the typewritten letters in response to the Board’s summary-decision motion
instead of the statutorily required affidavit setting forth “specific facts showing that there
is a genuine issue which can only be determined in an evidentiary proceeding.” The court
can grant summary decision “where appropriate” for failure to submit the affidavit, the
Board notes. 	3) The Board’s HIB finding against C.M. and imposition of consequences
were “correct and proper,” and “[n]othing . . . reflects” that its “handling of the matter was
arbitrary, capricious or unreasonable.” (Resp’t’s Br. at 2.)
Citing the case record, including N.L.’s statement (Resp’t’s Ex. A) reflecting that
she “feared being in C.M.’s presence” and that there was “a history of this type of
improper, sexually charged behavior by C.M. towards N.L.,” the Board contends that
“allegations of HIB filed by student N.L. against C.M. were promptly acted upon, being
reported and investigated as required by the Anti-Bullying Bill of Rights Act . . . .” (Resp’t’s
Br. at 3.)
The Board states that the district properly found that C.M.’s uninvited touching of
N.L. on Halloween of 2019 met the elements of HIB and violated the Act. 	The Board
argues that “there is no credible dispute” that the consequences imposed on C.M. “were
proper and narrowly tailored to address this particular situation, namely, to avoid
interaction between N.L. and C.M., in interests of protecting each student.” (Resp’t’s Br.
at 4.)
The Board also notes, in its letter brief of January 13, 2021, that, “Ultimately, C.M.
was unaffected by these consequences” because of the COVID-19 pandemic and
resulting shutdown of the school district in March 2020. “No students went on any class
trips and no Spring Plays or other in-person activities were conducted.” The Board rejects
petitioner’s claim that the District did not intervene to assist C.M., noting that “supportive

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8
action,” including parent contact, follow up, individual counseling, and other assistance,
was provided or recommended. (Resp’t’s Br. at 6.)
The Board argues that the District conducted a prompt, thorough investigation
adhering to the procedural requirements of the HIB statute, that it imposed appropriate
consequences that were intended to keep C.M. and N.L. from interacting at school, and
that there is no credible question that the Board here acted properly and in good faith, not
in any arbitrary way. For these reasons, the Board argues, summary decision should be
granted and the district’s HIB findings should be affirmed.
LEGAL DISCUSSION
The summary-decision analysis is essentially the same as that of summary
judgment, and under the New Jersey Rules of Court a party may move for and be granted
summary 	judgment 	if 	“the 	pleadings, 	depositions, 	answers 	to 	interrogatories 	and
admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact challenged and that the moving party is entitled to a judgment or
order as a matter of law.” 	R. 4:46-2(c). “An issue of fact is genuine only if, considering
the burden of persuasion at trial, the evidence submitted by the parties on the motion,
together with all legitimate inferences . . . favoring the non-moving party, would require
submission of the issue to the trier of fact.” Ibid.
Under the Uniform Administrative Procedure Rules, summary decision may be
granted “if the papers and discovery which have been filed, together with the affidavits, if
any, show that there is no genuine issue as to any material fact challenged and that the
moving party is entitled to prevail as a matter of law.” 	N.J.A.C. 1:1-12.5(b). 	“When a
motion for summary decision is made and supported, an adverse party in order to prevail
must by responding affidavit set forth specific facts showing that there is a genuine issue
which can only be determined in an evidentiary proceeding. . . . If the adverse party does
not so respond, a summary decision, if appropriate, shall be entered.” Ibid.

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9
In Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995), the
New Jersey Supreme Court clarified the framework for deciding a summary-judgment
motion. The judge must “consider whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party, are sufficient to permit
a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.”
Summary judgment must be granted if the evidence is “so one-sided that [the moving
party] must prevail as a matter of law.” Ibid.
Here, the Board has filed a motion for summary decision, supporting it with letter
briefs and certifications, including the victim’s written statement, the school counselor’s
report of what N.L. told her, the anti-bullying specialist’s report on her investigation of
N.L.’s allegation and her interview notes, the minutes of the Board’s executive-session
hearing at which C.M.’s parents presented their concerns, and other documentation.
Petitioner has not filed the reply affidavit that is required under N.J.A.C. 1:1-
12.5(b) as the vehicle for setting out “specific facts showing that there is a genuine issue
which can only be determined in an evidentiary proceeding.” 	But the critical issue here
is not whether petitioner filed an affidavit, but whether petitioner has shown any genuine
issue of material fact that, in light of the evidence and with legitimate inferences favoring
petitioner as the non-moving party, require that issue to be heard by the factfinder.
Petitioner’s 	submissions 	consist 	of 	several 	letters 	reiterating 	petitioner’s
displeasure at the Board’s findings and the consequences imposed on C.M., along with
allegations of abuse and isolation allegedly inflicted on C.M. by the district. 	The
submissions repeat the family’s view of C.M.’s behavior, contending that his actions
should be understood in the context of student and school culture and the long friendship
between C.M. and N.L. “This is a program that deals with mature themes,” B.M. says of
the theater program. “There is a physicality to their performance work. The group often
laid around on the floor with each other and blankets during class and they demonstrated
a lot of affection for each other (hugging, etc.), which . . . we have photos to show. The
photographic evidence clearly disputed the accounts and fears that N.L. expressed. 	It
was ignored.”

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10
It is also irrelevant. Photographs of teenaged theater students dramatizing social
issues 	and 	hugging 	each 	other 	are 	unrelated 	to 	the 	district’s 	determination—
unchallenged by C.M.’s petition of appeal—that on Halloween of 2019 C.M. violated the
Anti-Bullying Bill of Rights Act by touching N.L. in a sexually charged manner, in front of
at least one witness, without N.L.’s consent. Photographs of students hugging and text
messages between C.M. and N.L. that petitioner submitted to indicate a friendship are
irrelevant to whether C.M.’s behavior was improper, and whether it disturbed and
frightened N.L.
Petitioner clearly is aggrieved by the HIB finding against C.M., and by the
consequences the district imposed. The letters from B.M. repeated petitioner’s desire to
appeal and be “heard.” 	But petitioner does not dispute that C.M. committed the act for
which the district was required, under the HIB statute, to report, investigate, make
findings, and decide consequences. Importantly, petitioner has neither alleged nor shown
that the district’s handling of N.L.’s complaint was arbitrary, capricious, or unreasonable.
That is the standard, established by the Commissioner of Education, that must be met by
a party seeking to overturn a school board’s decision. In fact, petitioner’s submissions do
not make clear exactly what she is appealing or what remedy she seeks.
The petitioner accuses the district of treating C.M. harshly and unfairly, despite the
evidence showing that the Board attempted to protect both students, accommodated
C.M.’s academic and extracurricular needs, and offered other assistance. Petitioner does
not allege that the Board failed to follow the law or acted improperly. There has been no
showing that based on competent evidentiary materials viewed in a light most favorable
to petitioner, a reasonable factfinder could resolve the disputed issue in petitioner’s favor.
No genuine issue of material fact has been presented here, and the overwhelming weight
of the evidence in this case has been presented by the Board. 	Logically, its summary
decision motion must prevail.
The Anti-Bullying Bill of Rights Act (ABR Act), N.J.S.A. 18A:37-13 to -47, is
designed 	“to 	strengthen 	the 	standards 	and 	procedures 	for 	preventing, 	reporting,
investigating, and responding to incidents of harassment, intimidation, and bullying of

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students that occur in school and off school premises.” N.J.S.A. 18A:37-13.1(f). The Act
defines HIB as
any gesture, any written, verbal or physical act, or any
electronic communication, whether it be a single incident or a
series of incidents, that is reasonably perceived as being
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, 	that 	takes 	place 	on 	school
property, at any school-sponsored function, on a school bus,
or off school grounds . . . . that substantially disrupts or
interferes with the orderly operation of the school or the rights
of other students and that:
a. 	a reasonable person should know, under the
circumstances, will have the effect of physically or
emotionally 	harming 	a 	student 	or 	damaging 	the
student’s property, or placing a student in reasonable
fear of physical or emotional harm to his person or
damage to his property;
b. 	has the effect of insulting or demeaning any
student or group of students; or
c. 	creates a hostile educational environment for
the student by interfering with a student’s education or
by 	severely 	or 	pervasively 	causing 	physical 	or
emotional harm to the student.
[N.J.S.A. 18A:37-14 (emphasis added).]
Respondent’s Board of Education Policy 5512.1, Harassment, Intimidation and Bullying,
also defines HIB as “unwarranted, aggressive behavior” that may involve “a real or
perceived power imbalance.” (Resp’t’s Br. of January 13, 2021, at 10.)
The framework for addressing school bullying and responding to HIB allegations
is set forth in the ABR Act and in the New Jersey Administrative Code, N.J.S.A. 52:14B-
1 et seq. 	Each school district is required under the statute to adopt its own policy
prohibiting HIB. 	N.J.S.A. 18A:37-15(a). 	District policies must include (1) a statement
prohibiting HIB; (2) a definition of harassment, intimidation, or bullying that at least meets

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that of N.J.S.A 18A:37-14; and (3) consequences and appropriate remedial action for the
HIB offender. N.J.S.A. 18A:37-15(b); N.J.A.C. 6A:16-7.7.
The policy must also detail procedures for quick investigation of HIB allegations,
informing 	parents, 	and 	reporting 	results 	of 	the 	school’s 	inquiry 	to 	the 	district
superintendent and local board of education. 	N.J.S.A. 18A:37-15(b)(5)–(6). 	The board
then decides whether to affirm, reject, or modify the superintendent’s decision. 	Parties
can appeal the board’s finding, by petition, to the Commissioner of Education. N.J.S.A.
18A:37-5(b)(6). 	The Commissioner is empowered to “hear and determine, without cost
to the parties, all controversies and disputes arising under the school laws.” 	N.J.S.A.
18A:6-9.
The filing of the petition, which must state the basis for appeal and the relief sought,
N.J.A.C. 6A:3-1.4(a), initiates a contested case, as noted in a New Jersey Department of
Education publication available on the agency’s website, Guidance for Parents on the
Anti-Bullying Bill of Rights Act, at 42. Under the Administrative Procedure Act, N.J.S.A.
52:14B-1 et seq., the parties must have an opportunity “to respond, appear and present
evidence and argument on all issues involved.” N.J.S.A. 52:14B-9(c).
The Commissioner of Education has established the “arbitrary, capricious and
unreasonable” standard as central to ALJ fact-finding in contested cases. 	An ALJ’s
determination of whether the school officials properly followed the anti-bullying statute is
made under the “arbitrary, capricious” standard, and the Commissioner will not overturn
a school-board decision unless its actions are found to meet it. 	T.B.-M. v. Moorestown
Bd. of Educ., EDU 02780-07, Initial Decision (February 6, 2008) (citing Thomas v. Morris
Twp. Bd. of Educ., 89 N.J. Super. 327, 332 (App. Div. 1965), aff’d, 46 N.J. 581 (1966)),
adopted, Comm’r (April 7, 2008), https://njlaw.rutgers.edu/collections/oal/.
Agency determinations are generally presumed to be correct. 	In Thomas, the
Appellate Division upheld a school-board decision in an employment dispute. 	Citing
Education Department decisions dating to1960, the court noted:

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We are here concerned with a determination made by an
administrative 	agency 	duly 	created 	and 	empowered 	by
legislative fiat. When such a body acts within its authority, its
decision is entitled to a presumption of correctness and will
not be upset unless there is an affirmative showing that such
decision was arbitrary, capricious or unreasonable. 	The
agency’s 	factual 	determinations 	must 	be 	accepted 	if
supported by substantial credible evidence.
[Thomas, 89 N.J. Super. at 332.]
In 2015, a school board found by an ALJ to have acted in an arbitrary, capricious,
and unreasonable manner in not finding HIB in a sexual-harassment case argued that “its
determination was entitled to deference and the ALJ had no authority to modify it by
granting summary decision to the petitioners sua sponte.” T.R & T.R. ex rel. Minor Child
E.R. v. Bd. of Educ. of the Bridgewater-Raritan Reg’l Sch. Dist., Somerset Cty., EDU
10208-13, 	Comm’r’s 	Amended 	Decision 	(May 	6, 	2015),
https://www.nj.gov/education/legal/. The Commissioner reiterated, “It is well established
that when a local school board acts within its discretionary authority, its decision is entitled
to a presumption of correctness and will not be upset unless there is an affirmative
showing that the decision was arbitrary, capricious or unreasonable.” 	Ibid. (citing
Thomas, 89 N.J. Super. at 332). 	“The fact that the substance of this case involves a
challenge to the Board’s HIB determination and the application of the Act does not impact
the customary standard of review.” Ibid.
To prevail in a challenge to an HIB decision, a petitioner “must demonstrate that
the Board acted in bad faith, or in utter disregard of the circumstances before it.” G.H. &
E.H. ex rel. K.H. v. Bd. of Educ. of Franklin Lakes, EDU 13204-13, Initial Decision
(February 	24, 	2014) 	(citation 	omitted), 	adopted, 	Comm’r 	(April 	10, 	2014),
http://njlaw.rutgers.edu/collections/oal/. 	A 	school 	board’s 	decision 	may 	also 	be
overturned if it violates the legislative policies expressed or implied in the governing act.
J.A.H. ex rel. C.H. v. Pittsgrove Bd. of Educ., EDU 10826-12, Initial Decision (March 11,
2013) (citing Campbell v. Dep’t of Civil Serv., 39 N.J. 556, 562 (1963)), adopted, Comm’r
(April 25, 2013), http://njlaw.rutgers.edu/collections/oal/.

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A review of the record in this matter shows that the Board followed the protocols
set out by the ABR Act in promptly responding to N.L.’s complaint and launching an
investigation, and implemented a plan reasonably aimed at reducing or eliminating
interaction between C.M. and N.L. The fact that the Board modified some of the original
consequences it imposed on C.M., removed his suspension from his school record, and
accommodated him by moving the fall-play auditions to fall 2020, when he would be
permitted to participate, reflects an effort to work with his family and listen to their
concerns. The Board’s intervention plan included discussions with his parents, and offers
and recommendations that he receive counseling.
The Board properly found that C.M.’s uninvited touching of N.L. on Halloween
violated the ABR Act, as it was “reasonably perceived as being motivated either by any
actual or perceived characteristic,” and because “a reasonable person should know” that
the behavior would “have the effect of physically or emotionally harming” N.L. or placing
her “in reasonable fear of physical or emotional harm,” and had “the effect of insulting or
demeaning” her.
Petitioner has provided no legitimate evidence that the Board’s actions in this
matter were arbitrary, capricious, or unreasonable, and as such petitioner cannot meet
the standard established by the Commissioner for disturbing the Board’s HIB finding or
consequences.
CONCLUSION AND ORDER
Based upon all of the foregoing, I CONCLUDE that the Board’s motion for
summary decision should be granted, and petitioner’s appeal dismissed, because
petitioner has failed to show that there is any genuine issue of material fact that can only
be determined in an evidentiary proceeding, and because the Board adhered to the
requirements of the Anti-Bullying Bill of Rights Act in its reporting and investigation of
N.L.’s complaint and in imposing consequences, and its actions were not arbitrary,
capricious, or unreasonable. Without such a showing, and based on the record made by
the parties, the Board’s motion for summary decision is GRANTED and the petition is
hereby dismissed in its entirety.

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I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500, marked “Attention: 	Exceptions.” 	A copy of any exceptions must be sent to the
judge and to the other parties.
June 17, 2021
DATE 	LESLIE Z. CELENTANO, ALJ
Date Received at Agency: 	June 17, 2021
Date Mailed to Parties: 	June 17, 2021
dr