M.A.T., on behalf of minor child, M.T. v. Board of Education of the Township of Holland, Hunterdon County, 3/17/25 (#95-25E)

95-25
OAL Dkt. No. EDU 07053-24
Agency Dkt. No. 109-4/24
New Jersey Commissioner of Education
Final Decision
M.A.T., on behalf of minor child, M.T.,
Petitioner,
v.
Board of Education of the Township of Holland,
Hunterdon County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL)
have been reviewed and considered.1
The Holland Township Board of Education (Board) found that petitioner’s child, M.T.,
committed an act of harassment, intimidation, and bullying (HIB) when he used the word
“garbage” in the vicinity of another student, S.V., knowing that S.V. was sensitive to that word.
The Board also found that S.V. did not commit an act of HIB when she repeatedly sat next to M.T.,
despite being admonished to keep her distance. Petitioner appealed both determinations by the
Board.
1 Respondent filed exceptions that were untimely pursuant to N.J.A.C. 1:1-18.4(a) and were therefore not
considered. Petitioner did not file exceptions as to the portion of the Initial Decision that found in the
Board’s favor.

2
Following a hearing, the Administrative Law Judge (ALJ) concluded that M.T. did not
commit an act of HIB because S.V.’s personality and alleged sensitivity to the word “garbage” are
not distinguishing characteristics. The ALJ noted that M.T. did not call S.V. “garbage,” indicate
that S.V. smelled like garbage, or otherwise use the word in reference to S.V. specifically.
Additionally, S.V. did not respond negatively when other students used the word “garbage.” The
ALJ found that, while M.T.’s acting in a manner intended to distress S.V. was not appropriate, it
did not rise to the level of HIB. Accordingly, the ALJ granted the petition as to the finding of HIB
against M.T. and ordered that it be removed from M.T.’s records. As to the Board’s decision that
M.T. was not the victim of an act of HIB by S.V., the ALJ found that S.V.’s conduct could not
reasonably be perceived to be motivated by a distinguishing characteristic, and the Board’s
decision was not arbitrary, capricious, or unreasonable. 	Accordingly, the ALJ dismissed this
portion of the petition.
Upon review, the Commissioner concurs with the ALJ and finds that the Board’s decision
that M.T. committed an act of HIB was arbitrary, capricious, and unreasonable. The Act defines
HIB as:
[A]ny 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 as provided for in section 16 of
P.L. 2010, c.122 (C.18A:37-15.3), 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

3
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.]
In summary, a finding of HIB requires that three elements under the Act be satisfied. First,
the substantiated conduct must be reasonably perceived as being motivated by any actual or
perceived characteristic expressly identified in the statute, or by any other distinguishing
characteristic. Ibid. Second, the conduct must substantially disrupt or interfere with the rights
of other students or the orderly operation of the school. Ibid. Third, one of the three conditions
set forth in subsections (a), (b), and (c) must be satisfied. Ibid.; Wehbeh v. Bd. of Educ. of the
Twp. of Verona, Essex Cnty., Commissioner Decision No. 510-20 (Feb. 4, 2020).
While a broad range of characteristics may constitute a distinguishing characteristic under
the Act, the Commissioner concludes that the Board was arbitrary, capricious, and unreasonable
in determining that S.V.’s sensitivity to a specific term was a distinguishing characteristic. In the
absence of a distinguishing characteristic, conduct – even harmful or demeaning conduct – that
is motivated only by a personal dispute does not come within the statutory definition of bullying.
K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 351 (App. Div. 2011).
The Commissioner further concurs with the ALJ, for the reasons detailed in the Initial
Decision, that M.T. was not the victim of an act of HIB by S.V.
Accordingly, the Initial Decision is adopted as the final decision in this matter. The petition
of appeal is granted as to the Board’s decision that M.T. committed an act of HIB, and the Board

4
is directed to remove all references to its decision from M.T.’s records. The petition of appeal is
dismissed as to the Board’s decision that M.T. was not the victim of an act of HIB by S.V.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: 	March 17, 2025
Date of Mailing: 	March 19, 2025
2 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.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 07053-24
AGENCY DKT. NO. 109-4/24
M.A.T., ON BEHALF OF MINOR CHILD, M.T.,
Petitioner,
v.
TOWNSHIP OF HOLLAND BOARD
OF EDUCATION, HUNTERDON COUNTY
Respondent.
__________________________________
Michael A. Thompson, Esq., petitioner, pro se
Mark G. Mucciolo, Esq., for respondent (Busch Law Group, LLC, attorneys)
Record Closed: November 1, 2024 Decided: January 28, 2024
BEFORE GAURI SHIRALI SHAH, ALJ:
STATEMENT OF THE CASE
Respondent upheld two harassment, bullying or intimidation (HIB)
determinations, finding that petitioner M.T. committed HIB by using the word “garbage”
in S.V.’s vicinity knowing she was sensitive to the word and finding that S.V. did not
commit HIB when she repeatedly sat next to M.T. despite being admonished to keep
distance. Does either student’s conduct support the respondent’s HIB determinations?

OAL DKT. NO. EDU 07053-24
2
No. A HIB incident means any act that is reasonably perceived as being motivated by
an actual or perceived characteristic, such as race, color, gender, disability or other
distinguishing characteristics. N.J.S.A. 18A:37-14.
PROCEDURAL HISTORY
On April 17, 2024, respondent Holland Township Board of Education (the Board)
upheld a February 29, 2024, HIB finding against M.T. and a March 15, 2024 finding that
M.T. was not a victim of HIB. On April 22, 2024, petitioner M.A.T., on behalf of a minor
child, M.T., appealed both Board decisions to the Department of Education (DOE).
The DOE transmitted this case to the Office of Administrative Law, where it was
received and filed on May 23, 2034, as a contested case. N.J.S.A. 52:14B-1 to -15;
N.J.S.A. 52:14F-1 to -23.
On September 12, 2024, and September 16, 2024, I held the hearing but kept
the record open for the parties to obtain transcripts and provide post-hearing
submissions. Upon receipt of those submissions, I closed the record on November 1,
20241.
DISCUSSION OF FACTS
This case involves dual HIB investigations of incidents between two students,
petitioner M.T. and S.V., that took place primarily in February and March 2024. At that
time, M.T. and S.V. were fifth graders in the same homeroom and classes at Holland
Township School (Holland School). The first investigation, which began on February 9,
2024, resulted in a finding of HIB against M.T. The second HIB investigation, which
began just a few weeks later, involved allegations against S.V. and resulted in a finding
of no HIB. On April 17, 2024, both findings were upheld by the Board. Both
investigations were initiated by the Holland School principal, Susan Wardell, who also
was the District Anti-Bullying Coordinator. Both investigations were completed by the
1 An extension was granted due to a voluminous caseload.

OAL DKT. NO. EDU 07053-24
3
Holland School’s Anti-Bullying Specialists (ABS) Jennifer Leap and Ms. Deniz. Leap
had worked at Holland School as an ABS and a guidance counselor for ten years. Leap
and Wardell were both called as witnesses in petitioners’ case and both provided
testimony about the underlying HIB matters, the substance of the underlying allegations,
the investigation conducted, and the conclusions reached.
The February 9, 2024, HIB Investigation
An email from S.V.’s parent to school staff, dated February 9, 2024, triggered the
first HIB investigation. The email advised that S.V. was being bullied by two boys in
school but did not identify the students by name. Earlier that same day, at 9:07 a.m.,
the Spanish teacher, Ms. Kelly Mullooly, had sent an email to Wardell and Leap, as well
as others at the school, advising of “an interesting situation that came about in class
today.” (P-8.) Specifically, the email noted that another student and M.T. were “picking
on” S.V. and “triggering her by saying the word garbage.” Ibid. At the hearing, Wardell
confirmed receipt of the email but also advised that she had spoken by phone with
Mullooly as well as engaged in an in-office conference with her that day. According to
Wardell, none of the information gleaned from her conversations with Mullooly was
reflected in investigation reports, as she did not participate in the investigation. The
information did, however, inform Wardell, who approved the start of a HIB investigation
into M.T. and another student. Wardell also signed off on the final HIB incident report
decision.
Wardell testified that her only role in a HIB matter was in the beginning and the
end. Specifically, Wardell testified that she decides whether an investigation should
occur and then, after the investigation is concluded, meets with the ABS to consider the
results of the investigation and ultimately determine whether a HIB incident was
founded. A HIB summative report is issued as a result of her conclusions and is then
forwarded to the Board. Wardell neither participates in the investigation nor reviews the
investigation notes or records. Wardell testified that the Holland School had a HIB
policy in place, District Policy 5512 (the HIB Policy), which was effective February 28,
2023. (P-46.) The HIB Policy requires the principal to make a preliminary finding that

OAL DKT. NO. EDU 07053-24
4
an investigation is required. The ABS conducts the investigation if authorized, and a
separate investigation for each reported incident is required. (P-46.)
The investigation was conducted jointly by ABS Leap and Deniz. Specifically,
they would meet with each witness and handwrite their own notes of the witness
interview. In addition, the witness would be provided with a form on which to handwrite
their own notes, which were considered as part of the investigation. Some of the notes
by the ABS and witnesses are difficult to read, either due to extensive redactions or
because the handwriting is illegible.
The incident in Spanish class, coupled with two other incidents, one in
after-school band rehearsal and one at lunch in the cafeteria, comprised the events
investigated by the ABS. Based on the investigation, Leap concluded that M.T. had
used the word “garbage” in the vicinity of S.V. The investigation further revealed that
due to an incident that occurred in third grade, S.V. was sensitive to the use of the word
“garbage.”
Leap testified that S.V. was a “sensitive” person and “emotional” and that the
word “garbage” triggered an emotional response from her. Thus, the investigation
concluded that M.T. had used the word garbage in the vicinity of S.V. knowing she was
sensitive to it to elicit an emotional response. However, Leap confirmed in her
testimony that S.V. was not triggered when other persons used the word in her
presence, including her teachers and her friends; she selectively decided who was
“nice” and could say the word without an emotional response from her. Wardell
confirmed as well that S.V. was selective in who she felt could say the word “garbage.”
The investigative records provided reflect that the ABS interviewed several
Holland School staff members, S.V., M.T. and other students. The gym teacher did not
identify any issues between M.T. and S.V. (P-22; P-37). The music teacher, Mr. Kevin
Kuchinisky, noted one incident where several boys, including M.T., were speaking
loudly about “taking out the garbage” in after-school band practice. He asked them to
quiet down, and the next day he met with them to ask that they not disrupt band
practice. This incident occurred on January 29, 2024, based on the email from the

OAL DKT. NO. EDU 07053-24
5
teacher documenting what happened and how he handled it. (P-12.) The email noted
that three boys were involved in the incident. Ibid.
Ms. Christine Detrick, a teacher, described the interactions between M.T. and
S.V. as “butting heads”, noting “they just can’t be together w/out (sp) bugging each
other.” (P-23.) Ms. Qualteria, a cafeteria aide who was interviewed stated that a few
students had said the word “garbage”, it had had upset S.V., and that S.V. said that
M.T. and others were pushing a garbage can near S.V. (P-25.) The aide noted that
S.V. seemed upset a lot. (P-24 at 066.) Leap testified that S.V. was a sensitive child,
and a number of things upset her.
S.V., when interviewed by the ABS, initially said she had “kind of forgot about it”
since she had gone on vacation. (P-13–P-15.) S.V. explained in the interview notes
that M.T. was never her friend and that she thought he said the word “garbage” to
annoy her. (P-13.) She also confirmed that M.T. was not calling S.V. “garbage”. (P-14
at 038.)
Leap agreed that M.T. had not called S.V. “garbage” or said she looked like or
smelled like garbage. There is no evidence that M.T. had directly said the word to S.V.
but rather had been involved in conversations with other boys revolving around “taking
out the garbage” or “when do you take out the garbage at your house.” From the
investigation notes produced, the ABS did not specifically ask M.T. what was said and
the context of any comments, including when he said the word “garbage” or how often.
(P-17; P-18.) The interview notes reflect that M.T. simply complained that there was
only an issue with the word “garbage” with S.V. when he, but not others, said it.
(P-17−P-19.)
The Holland School did not have a policy against the use of the word “garbage.”
Nor had school staff been advised to limit or refrain from the use of the word “garbage”
as a potential trigger for S.V.
Leap’s “Memory Notes,” spanning January 26, 2024, through March 1, 2024,
reflect that S.V. suggested that another child who said “garbage” be stabbed with a

OAL DKT. NO. EDU 07053-24
6
plastic knife and that she allegedly kicked another student. (P-3.) See also P-24 and P-
25.
Based on M.T.’s engaging in the use of the word “garbage” in the vicinity of S.V.,
Wardell and the ABS concluded that M.T. had committed an act of HIB against S.V.
(P-1.) As part of the analysis required by the HIB summative report, Wardell had to
identify the motivating factor, which was defined as the actual or perceived
characteristic of the target that was the motivating factor. Some of the examples of
characteristics included race, color, religion and gender. The characteristic identified for
M.T.’s motivating factor was “Other,” followed by S.V.’s “personality and sensitivity to
the word ‘garbage’.” (P-1 at 004.)
At the hearing, Wardell had difficulty answering the questions posed to her and at
one point asked if she could confer with counsel. Wardell seemed hesitant to testify
and wanted to limit her testimony to the information contained in the HIB summative
report. She further testified that she did not read the investigative reports but waited for
a summary from the ABS. However, when questioned about how she knew M.T. had
said the word “garbage” and the context in which it was said, she eventually declared
that “everyone had told her,” including the teachers and the parents, pointing specifically
to the email from the Spanish teacher. (P-8.) When confronted with the email, she
admitted that it did not specify what M.T. had said and then recounted that she had
private conversations with the Spanish teacher that formed the basis of her conclusions.
This of course begs the question: Why conduct an investigation if the ultimate decision
maker has already concluded the incident underlying the HIB investigation has occurred
prior to the start of the investigation?
Lastly, in going through the February 29, 2024 HIB summative report as to M.T., I
found an unredacted name and the notation “no motivation.” Thinking it was another
staff member’s perspective on the investigation, I inquired about it. Leap testified that
the ABS, at Wardell’s direction, combined more than one investigation in the final HIB
summative report. The other investigation did not involve either M.T. or S.V. or the
incidents giving rise to the February 9, 2024 investigation.

OAL DKT. NO. EDU 07053-24
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The March 1, 2024, Investigation
An initial email dated February 28, 2024, was sent by M.T.’s parents to the
Holland School, including Wardell and Leap, advising them that S.V. was antagonizing
M.T. by sitting near him when they were not supposed to be near each other. (P-4; see
also P-5.)
Leap sent an email on February 28, 2024, to the teachers advising them that the
children needed to be kept away from each other and spoke with both S.V. and M.T.
(P-6.) Another email from M.T.’s parents indicated that the same scenario had occurred
on March 1, 2024, and that M.T. asked S.V. to move away and was feeling harassed.
The parents inquired if S.V. had claimed harassment by M.T., why would she then
approach and sit next to him. On March 4, 2024, Wardell authorized a HIB investigation
of S.V.’s actions. (P-40.)
In each instance, M.T. sat on a bench and S.V. joined him. M.T. asked S.V. to
please move away, reminding her they were not supposed to be near each other.
(P-33.) Leap confirmed in the March 15, 2024, HIB summative report that the witnesses
she spoke to in the HIB investigation that followed confirmed that M.T. was there first
and that S.V. joined him later on the bench. (P-32.) S.V. claimed that she had been
there first. (P-32.) Interestingly, at the hearing, Leap testified that S.V. had been there
first, until confronted with the witness statements she presented in her own summative
report of the incidents. In the end, Wardell and the ABS concluded that S.V.’s conduct
did not rise to a HIB incident. (P-32.) Specifically, the summative report found no
actual or perceived characteristic that was a motivating factor in the incident and thus,
no HIB. The summative report also did not find that the alleged offender, S.V., knew or
should have known that the incident would have the effect of emotionally or physically
harming M.T. or placing M.T. in reasonable fear of emotional or physical harm or that
the incident caused a hostile educational environment. (P-32 at 082.) The summative
report left blank the number of times the incident occurred, which appears to be twice.
Ibid.

OAL DKT. NO. EDU 07053-24
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FINDINGS OF FACT
Given my discussion of the facts, the testimony the parties provided and my
assessment of its credibility, together with the documents the parties submitted and my
assessment of their sufficiency, I FIND the following as FACT:
During the 2023–2024 school year, M.T. and S.V. were fifth-grade students at
Holland School who were in homeroom and some other classes together. As such,
they were in the vicinity of each other for most of the school day. M.T. and S.V., by their
own admissions, were not friends. M.T. referred to S.V. as “horrible,” while S.V. called
M.T. “mean.” Both had their own group of friends.
On February 9, 2024, based on an email from S.V.’s parent, Holland Township
began a HIB investigation of M.T. On February 29, 2024, the investigation concluded
with a finding that M.T. committed HIB by using the word “garbage” in the vicinity of
S.V., who was sensitive to the use of the word.
The February 29, 2024, HIB summative report completed by Holland School
required that the motivating characteristic for the HIB be identified. The motivating
characteristic was identified as S.V.’s “personality and her sensitivity to the word
garbage.”
The record is clear that M.T. did not state that S.V. looked like garbage, smelled
like garbage, dressed like garbage or was garbage. Rather, M.T. would engage in
conversations about garbage with other boys, such as about taking out the garbage at
home or related ideas about garbage, in the vicinity of S.V. Notably, since most of their
classes were together, most of these conversations would be in the vicinity of S.V. For
her part, S.V. expressed that M.T. said things to annoy her.
S.V., at times, had reacted emotionally to the word “garbage.” However, S.V. is
selective as to when she reacts emotionally to the use of the word “garbage.” S.V.
would not react to the use of the word “garbage” if teachers, her friends, and those she
deems “nice” say the word. S.V. did, on some identified occasions, have an emotional

OAL DKT. NO. EDU 07053-24
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response if M.T. or certain boys used the word “garbage” in her presence. ABS Leap,
whose testimony I found credible and helpful, described S.V. as a “sensitive child” who
reacts emotionally to many different things.
Holland School does not have a policy against the use of the word “garbage”.
Nor did the school inform or instruct teachers or students that they were prohibited from
using the word “garbage” generally or in the presence of S.V. because it was a trigger
for her.
As part of its February 9, 2024, HIB investigation, the ABS did not ask M.T. what
he had specifically said in the vicinity of S.V. relating to the word “garbage” including,
when he had said it, the context of what he said, and who else had participated in any
incident. In short, ABS Leap did not have “specifics” of the various alleged incidents
identified in her investigation. In Spanish class, the boys in the class, including M.T.
were bothering S.V. by commenting on various things, including her shoes and how
much work she had done; any commentary using the word “garbage” was part of a
larger effort to annoy S.V. rather than any specific characteristic of S.V. As confirmed
by another teacher, Ms. Detrick, M.T. and S.V. could not be together without “bugging
each other.”
S.V.’s personality and her sensitivity to the word “garbage” also are not a
motivating characteristic because, unlike characteristics such as race, gender or
disability, both her personality and her sensitivity were prone to fluctuations, depending
on her perception of the people with whom she interacted. S.V.’s sensitivity was guided
by whether she liked the person or their status and thus fluctuated based on her
perception, as evidenced by her lack of emotional response when some people used
the word “garbage.”
S.V. also engaged in actions for which Holland School conducted a HIB
investigation. Two emails from M.T.’s parent, complaining that S.V. was antagonizing
M.T. by sitting near him, triggered the March 4, 2024, investigation into S.V.’s conduct.

OAL DKT. NO. EDU 07053-24
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The investigation found that on February 29, 2024, and on March 1, 2024, S.V.
sought out M.T. and deliberately sat next to him on a bench identified as the “buddy
bench.” At the time, S.V. knew that she and M.T. were to keep their distance from each
other because they had been instructed to do so by school staff, including ABS Leap.
Despite these clear instructions, S.V. sat near M.T. twice.
Indeed, on February 29, 2024, S.V. at least knew that a HIB investigation of M.T.
was pending, based on her complaint. By March 1, 2024, S.V. ostensibly knew that
M.T. had been found to have committed a HIB against her. At this juncture, the only
reason to approach M.T. was to provoke or aggravate him, which S.V. successfully did.
The investigative record reflects that M.T. asked S.V. to move away, reminding her that
they were to keep away from each other, and his concerns that he would be in trouble
for being near her.
The March 9, 2024, summative report of the HIB investigation of S.V. correctly
found no motivating characteristic. That investigation was properly conducted by
Holland School. In contrast, the February 4, 2024, investigation was not conducted in
accordance with Holland School HIB policy because the HIB summative report includes
information relating to more than one investigation and two different unrelated incidents.
Additionally, although the document references that more than two students were
involved in some of the incidents involving S.V., Holland School only conducted an
investigation of M.T. and one other student, which made the investigation incomplete
and thus unreliable.
DISCUSSION AND CONCLUSIONS OF LAW
The Legislature enacted the Anti-Bullying Bill of Rights Act (the Anti-Bullying Act)
to strengthen the standards and procedures for preventing, reporting, investigating, and
responding to incidents of harassment, intimidation, and bullying of students that occur
in school and off school premises. N.J.S.A. 18A:37-13.1−13.2.
N.J.S.A. 18A:37-14 defines harassment, intimidation, or bullying as conduct that
could be “reasonably perceived as being motivated either by any actual or perceived

OAL DKT. NO. EDU 07053-24
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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” and
“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.]
Holland School’s District Policy 5512 essentially mirrors the language and intent
expressed in the Anti-Bullying Act. Here the key and initial question that needs to be
addressed is whether the conduct of either student, petitioner M.T. or S.V., was
motivated by any actual or perceived characteristic. Notably, all aggressive or violent
conduct does not constitute bullying under the Anti-Bullying Act. K.L. v. Evesham
Township Board of Education, 423 N.J. Super. 337, 350–51 (App. Div. 2011). In K.L. v.
Evesham Township Board of Education, the Appellate Division specifically found that
“harmful or demeaning conduct motivated only by another reason, for example, a
dispute about relationships or personal belongings, or aggressive conduct without
identifiable motivation, does not come within the statutory definition of bullying.” Id. at
351.
Thus, an incident may be physically, psychologically, or socially harmful, but still
not meet the HIB criteria. Here I CONCLUDE that the conduct of M.T. and S.V., in this
instance, does not meet the statutory definition of HIB under the Anti-Bullying Act. Both

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students acted in a manner that sought to distress the other, which, while not
appropriate, does not rise to meet the definition of HIB.
In the case of the February 9, 2024, HIB investigation, S.V.’s personality and
alleged sensitivity to the word “garbage” are not distinguishing characteristics, where
the sensitivity and her personality differed based on the person she encountered and
her perception of them. A characteristic cannot be fluid and selectively determined by
the alleged victim. It is undisputed that S.V. would respond negatively when M.T. and
certain other boys used the word “garbage”, but not when others said it. This means
that one day the use of the word garbage by a person may be fine, but on the next day,
it may not, leading to, at the very least, uncertainty of when a HIB has occurred. It was
unreasonable for the Board to apply such a wavering standard in their investigation and
conclusion of HIB by M.T., and I CONCLUDE thus that M.T. did not commit HIB.
Based on the definition of HIB, I FURTHER CONCLUDE that the Board correctly
upheld the March 9, 2024, finding of no HIB against S.V. because there was no actual
or perceived motivating characteristic for S.V.’s actions in sitting next to M.T.
Generally, in matters involving the exercise of a board of education’s discretion,
the scope of the Commissioner’s review is “not to substitute his judgment for that of
those who made the evaluation but to determine whether they had a reasonable basis
for their conclusions.” Kopera v. W. Orange Bd. of Educ., 60 N.J. Super. 288, 296 (App.
Div. 1960). Our courts have held that “[w]here there is room for two opinions, action is
not arbitrary or capricious when exercised honestly and upon due consideration, even
though it may be believed that an erroneous conclusion has been reached.” Bayshore
Sewage Co. v. Dep’t of Envtl. Prot., 122 N.J. Super. 184, 199–200 (Ch. Div. 1973),
aff’d., 131 N.J. Super. 37 (App Div. 1974). To satisfy the arbitrary and capricious
standard, petitioner must prove that respondent acted in either bad faith or in disregard
of the circumstances, and I CONCLUDE that petitioner has met that burden in part.
Specifically, I CONCLUDE that petitioner has done so with regard to the February 29,
2024, HIB finding against M.T., where the conduct did not meet the statutory definition
of HIB and where respondent, unreasonably, did not comply with the Holland School
HIB policy by including and combining two separate investigations in its February 29,

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2024, HIB summative report. I FURTHER CONCLUDE that petitioner has not met its
burden of establishing that the March 9, 2024, finding of no HIB against S.V. upheld by
the Board was arbitrary, capricious or unreasonable.
ORDER
In accordance with my conclusions above, I ORDER that the petition appealing
the March 14, 2024 HIB finding is hereby DISMISSED. It is FURTHER ORDERED that
the petition appealing the February 29, 2024 HIB finding against petitioner M.T. is
GRANTED, and I ORDER respondent to remove the HIB finding from petitioner’s
student record.
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.

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14
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.
January 28, 2024 _______________________________
DATE GAURI SHIRALI SHAH, ALJ
Date Received at Agency:
Date emailed to Parties:
GSS/nn
January 28, 2025

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APPENDIX
WITNESSES
For petitioner
Susan Wardell
Jennifer Leap
For respondent
None
EXHIBITS
For petitioner
P-1 HIB Summative Report, dated February 29, 2024
P-2 HIB 338 Form (Kaylee Qualteria), dated February 22, 2024
P-3 Memory Notes of Leap re: S.V.
P-4 Email from J. Thompson to Leap, Wardell and Snyder, dated February 28,
2024
P-5 Email from Qualteria to Leap and Kephart re: S.V. Antagonization, dated
March 1, 2024
P-6 Email from Leap to HTS Staff, dated February 28, 2024
P-7 Not in evidence
P-8 Email from Mullooly to HTS Staff, dated February 9, 2024
P-9 Not in evidence
P-10 Email from Wardell to HTS Staff, dated February 9, 2024
P-11 Email from J. Thompson to Kuchinsky, Lang and Leap, dated January 30,
2024
P-12 Email from Kuchinsky to J. Thompson, dated January 31, 2024
P-13 Target Interview Form (S.V.), dated February 20, 2024
P-14 Target Interview Form (S.V.), dated February 20, 2024
P-15 Target Interview Statement (S.V.), dated February 20, 2024

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P-16 Alleged Offender Interview Form (L.B.), dated February 15, 2024
P-17 Alleged Offender Interview Form (M.T.), dated February 15, 2024
P-18 Alleged Offender Interview Form (M.T.), dated February 15, 2024
P-19 Accused Interview Statement (M.T.), dated February 15, 2024
P-20 Witness Interview Form (Zdepski), dated February 28, 2024
P-21 Not in evidence
P-22 Witness Interview Form (Schedlbauer), dated February 28, 2024
P-23 Witness Interview Form (Detrick), dated February 29, 2024
P-24 Witness Interview Form (Qualteria), dated February 29, 2024
P-25 Witness Interview Statement (Qualteria), dated February 28, 2024
P-26 Witness Interview Form (Mullooly)
P-27 Witness Interview Statement (Mullooly), dated February 29, 2024
P-28 Witness Interview Form (Kuchinsky)
P-29 Witness Interview Statement (Kuchinsky), dated March 6, 2024
P-30 Not in evidence
P-31 Not in evidence
P-32 HIB Summative Report, dated March 1, 2024
P-33 Target Interview Form (M.T.), dated March 5, 2024
P-34 Target Interview Statement, dated March 5, 2024
P-35 Witness Interview Form (Qualteria), dated March 14, 2024
P-36 Witness Interview Statement (Qualteria), dated March 13, 2024
P-37 Witness Interview Form & Statement (Schedlbauer), dated March 13,
2024
P-38 Witness Interview Form (Kephart), dated March 14, 2024
P-39 Witness Interview Statement (Kephart), dated March 14, 2024
P-40 HIB Form 338, dated March 1, 2024
P-41 Email from Qualteria to Leap and Kephart, dated March 1, 2024
P-42 Memory Notes re: S.V.’s Antagonization, March 1, 2024
P-43 Email from J. Thompson to Wardell and Snyder re: Continued
Harassment, dated March 4, 2024
P-44 HIB Form 338, dated February 29, 2024
P-45 Leap Memory Notes, dated February 29, 2024

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For respondent
P-46 Holland Township School HIB Policy (marked thus by respondent and not
objected to by petitioner)