M.D., on behalf of minor child, N.D. v. Board of Education of the Town of Westfield, Union County, 4/28/25 (#111-25+)

111-25+
OAL Dkt. No. EDU 08600-24
Agency Dkt. No. 137-5/24
New Jersey Commissioner of Education
Final Decision
M.D., on behalf of minor child, N.D.,
Petitioner,
v.
Board of Education of the Town of Westfield,
Union County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by petitioner pursuant to N.J.A.C. 1:1-18.4, and the reply filed by respondent
Board of Education of the Town of Westfield (Board), have been reviewed and considered.1
This matter involves petitioner’s challenge to the Board’s determination that his minor
child, N.D., committed harassment, intimidation, or bullying (HIB). The Anti-Bullying Bill of Rights
Act (Act), N.J.S.A. 18A:37-13 et seq., 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
1 Following the Commissioner’s issuance of a final decision in this matter on March 31, 2025, the Board
requested that the matter be reopened because it had not received a copy of petitioner’s exceptions and
thus did not have an opportunity to submit a reply pursuant to N.J.A.C. 1:1-18.4. The Commissioner
granted the Board’s request and permitted the Board to submit a reply. However, the Commissioner did
not consider the Board’s undated Certification of Falynn Bassalone or any references thereto within the
reply because “evidence not presented at the hearing shall not be submitted as part of an exception, nor
shall it be incorporated or referred to within exceptions.” N.J.A.C. 1:1-18.4. Additionally, petitioner’s sur-
reply was not considered as such submissions are not permitted under N.J.A.C. 1:1-18.4.

2
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
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.]
A finding of HIB requires three elements under the Act. First, the conduct at issue must
be reasonably perceived by the victim as being motivated by any actual or perceived
characteristic expressly identified in the statute, or by any other distinguishing characteristic.
Second, the conduct must substantially disrupt or interfere with the orderly operation of the
school or the rights of other students. Third, one of the three conditions set forth in subsections
(a), (b), and (c) must be satisfied. 	Wehbeh v. Bd. of Educ. of Twp. of Verona, Commissioner
Decision No. 510-20 (Feb. 4, 2020). “The Act specifically allows a school district to respond to
harassment, intimidation or bullying that occurs off school grounds.” G.D.M. v. Bd. of Educ. of
Ramapo Indian Hills Reg’l High Sch. Dist., 427 N.J. Super. 246, 266 (App. Div. 2012) (citing N.J.S.A.
18A:37-15.3).

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In this case, the Board determined that N.D. committed HIB when he followed the female
victim, who was walking home from school, told her that she was pretty, repeatedly asked her
for hugs, and asked if he could lift up her backpack from behind to see how heavy it was. The
victim reported that she became fearful and repeatedly told N.D. to stop following her, and that
he eventually turned around. When questioned during the investigation, N.D. stated that he did
not remember the incident. The Administrative Law Judge (ALJ) granted the Board’s motion for
summary decision upon concluding that the material facts were undisputed and the Board’s HIB
determination was not arbitrary, capricious, or unreasonable.
In his exceptions, petitioner argues that the ALJ’s decision is based solely on hearsay and
unsubstantiated allegations. 	He contends that the victim’s description of events is not
corroborated, and that reliance upon same by the ALJ is unjust and exposes N.D. to potential
irreversible harm to his reputation, emotional distress, and social stigmatization.
In response, the Board contends that petitioner’s arguments regarding the legal process
and violations of justice and due process were not raised before the ALJ. In any event, the Board
maintains that it adhered to applicable law and policy with respect to this HIB matter. Moreover,
the Board asserts that the ALJ applied the correct legal standard when determining that the
incident satisfied the statutory definition of HIB, and that the Board’s finding was not arbitrary,
capricious, or unreasonable. The Board also maintains that the ALJ properly relied upon some
hearsay evidence in accordance with N.J.A.C. 1:1-15.5.
When a local board of education acts within its discretionary authority, its decision is
entitled to a presumption of correctness and will not be disturbed unless there is an affirmative
showing that the decision was “patently arbitrary, without rational basis or induced by improper

4
motives.” Kopera v. W. Orange Bd. of Educ., 60 N.J. Super. 288, 294 (App. Div. 1960). Regarding
HIB determinations, this standard of review requires petitioners to “demonstrate that the Board
acted in bad faith, or in utter disregard of the circumstances before it.” G.H. and E.H. o/b/o K.H.
v. Bd. of Educ. of Borough of Franklin Lakes, Bergen Cty., OAL Dkt. No. EDU 13204-13,
Initial Decision (Feb. 24, 2014), adopted, Commissioner Decision No. 157-14 (Apr. 10, 2014). The
Commissioner may not substitute his judgment for that of the Board. Schinck v. Bd. of Educ. of
Westwood Consol. Sch. Dist., 60 N.J. Super. 448, 476 (App. Div. 1960).
Upon review, the Commissioner rejects the ALJ’s conclusion that the Board’s HIB
determination was not arbitrary, capricious, or unreasonable. According to documents in the
record, the HIB investigation concluded that the incident did not substantially affect the
operation of the school or the rights of other students. 	Respondent’s Motion for Summary
Decision, Exhibit 2, page 8. The ALJ noted on page 5 of the Initial Decision that the investigation
determined “that N.D.’s comments . . . did not substantially affect the school’s operation.” For a
finding of HIB to be sustained, the Act expressly requires that the conduct at issue “substantially
disrupts or interferes with the orderly operation of the school or the rights of other students.”
N.J.S.A. 18A:37-14. The Board’s decision fails to provide any explanation for why it disagreed or
disregarded the findings contained in the investigation report or how N.D.’s conduct met the
statutory criteria. Thus, the Commissioner finds that the Board’s decision lacks a rational basis.
While N.D.’s actions were clearly inappropriate, not all such behaviors constitute HIB
under the Act’s very specific definition. 	The record is devoid of evidence that the incident,
although understandably distressing, caused the victim to be so upset that she was “not fully
available for learning.” G.H., Initial Decision at 18. The incident occurred after the school day

5
ended. While the ALJ found on page 11 of the Initial Decision that “the victim was uncomfortable,
fearful, and reported the incident,” that finding does not constitute a substantial disruption of
the orderly operation of the school or the rights of other student as claimed by the Board in its
reply to petitioner’s exceptions. 	The victim attended school the next day. 	The fact that she
reported the incident, in and of itself, does not satisfy the second element of the HIB statute.
The ALJ’s conclusion on page 12 that the incident “interfered with [the victim’s] education and
created a hostile educational environment,” thereby satisfying the “substantial disruption”
requirement, is not supported by the record.
Accordingly, the Initial Decision is rejected, and the petition of appeal is hereby granted.
The Board is directed to remove any references to the HIB determination from N.D.’s student
records.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: 	April 28, 2025
Date of Mailing: 	April 28, 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
SUMMARY DECISION
OAL DKT. NO. EDU 08600-24
AGENCY DKT. NO. 137-5/24
M.D. ON BEHALF OF MINOR CHILD N.D.,
Petitioner,
v.
BOARD OF EDUCATION OF THE TOWN OF
WESTFIELD, UNION COUNTY,
Respondent.
________________________________________
M.D., petitioner appearing pro se
Christina Michelson, Esq. for Respondent (Methfessel & Werbel, attorneys)
Record Closed: December 27, 2024 	Decided: January 21, 2025
BEFORE: NANCI G. STOKES, ALJ
STATEMENT OF THE CASE
M.D. challenges that N.D. engaged in Harassment, Intimidation, and Bullying (HIB)
on January 31, 2024, against a female student after N.D. approached her, stated she was
pretty, and did not stop following her. Was the HIB conclusion supported even if N.D. did

OAL DKT. NO. EDU 08600-24
2
not recall the incident, has a disability, and is uninterested in females? Yes. HIB
prohibitions apply to disabled students, and a Board of Education’s decision will stand
unless it is arbitrary, capricious, or unreasonable.
PROCEDURAL HISTORY
On May 6, 2024, M.D. filed a Petition of Appeal with the Commissioner of
Education (Commissioner) challenging the Westfield Board of Education’s (Board or
District) HIB determination against his minor son, N.D. Petitioner maintains that the
District mishandled the investigation, relied upon witnesses that were not credible or
biased, insufficient evidence, and failed to consider N.D.’s disabilities. Thus, the petitioner
seeks to set aside the Board’s decision and remove the HIB finding from N.D.’s record.
On June 6, 2024, the Board answered the petition, denying the petitioners’
allegations, maintaining that it followed all required procedures and that its decision met
the HIB criteria. The Board requests that this tribunal dismiss the petition.
The Department of Education (DOE) transmitted this case to the Office of
Administrative Law (OAL) as a contested case under the Administrative Procedure Act,
N.J.S.A. 52:14B-1 to-15, and the Act establishing the OAL, N.J.S.A. 52:14F-1 to-13, for
a hearing under the Uniform Administrative Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6.
On June 6, 2024, the OAL received and filed the transmittal.
On November 25, 2024, the Board filed a motion for a summary decision asserting
no disputed material facts exist. The petitioner submitted email responses on November
26 and December 3, 2024. The petitioner provided an additional email on December 27,
2024, which I accepted. On December 27, 2024, the Board responded, and I closed the
record.

OAL DKT. NO. EDU 08600-24
3
FINDINGS OF FACT
Viewing the facts in the most favorable light to the non-movants, I FIND the
following as FACT after considering the sufficiency of the documents and materials
submitted for and against the motion:
On January 31, 2024, N.D. was an eleventh-grade student at Westfield High
School. At that time, N.D. suffered from a social disability and had an Individualized
Education Plan (IEP) in place to address his need for special education services. R-2.
Under N.J.S.A. 18A:37-15, the Board issued District Policy 5512 concerning HIB,
which essentially mirrors the State HIB law and the process a school must follow when
investigating HIB claims. See R-7. Notably, the policy does not exclude any students or
District staff from its HIB prohibitions.
On February 2, 2024, J.S., a ninth-grade female student, reported an incident
involving N.D. on January 31, 2024, to the assistant principal, Mable Huynh. 	On that
date, the principal contacted M.D. to advise that the District received a HIB allegation
against N.D.
On February 8, 2024, J.S. provided a written statement about the incident and met
with the HIB investigator. J.S. reported that N.D. followed her and a friend from Starbucks
after school around 3:00 p.m. When J.S. and her friend separated, N.D. continued to
follow J.S. N.D. approached J.S. and told her she was pretty, repeatedly asked for a hug,
and requested to lift her bookbag, which she refused. J.S. began walking quickly and
asked N.D. repeatedly to stop following her, but he continued until she reached her street.
She was too afraid to stop at her home because she did not want N.D. to know where
she lived. She reported that his actions made her uncomfortable and fearful of harm.
Although M.D. suggests J.S.’s account is speculation, it is not. 	Instead, her statement
recounts her version of events on January 31, 2024, with N.D.

OAL DKT. NO. EDU 08600-24
4
The HIB report notes N.D.’s ethnicity as white. Ibid. However, M.D. asserts that
N.D. is mixed race and that the District targeted N.D. in the investigation because of his
race. Yet, M.D. offers no evidence to support this allegation, and the incident did not
involve race.
On February 9, 2024, the investigator spoke with J.S., who identified N.D. as the
person following her. 	J.S. identified N.D. from two student pictures that matched her
description of the student following her on January 31, 2024.
The investigator spoke to other witnesses as part of the HIB investigation. On
February 15, 2024, Nick Calello, the Student Resources Officer, stated that he saw N.D.
trailing a block behind two girls after leaving school. However, he could not identify the
girls. I FIND this statement offers little to demonstrate the events J.S. reported.
Despite multiple requests, N.D. refused to provide a written or verbal statement
regarding the incident. Instead, he told the HIB investigator that he did not recall the
interaction on January 31, 2024.
Yet, 	assistant 	principal 	Huynh 	spoke 	with 	N.D. 	after 	J.S. 	reported 	the
interaction. On March 7, 2024, Huynh advised the HIB investigator that N.D. recalled the
incident when she spoke with him on February 8, 2024, and he asked if J.S. reported him.
However, M.D. maintains he was on the February 8, 2024, call and disputes that N.D.
remembered the incident but denied it. Thus, M.D. maintains Huynh’s statement was
biased and the investigator should not have considered it. M.D. suggests that there was
tension between Huynh and N.D. that created a conflict of interest. Yet, M.D. supplies no
evidence to support this assertion.
N.D. lives near where the girls were walking, and it would not be unusual for him
to be in the area or walking in their direction to go home. N.D.’s sexual orientation is not
heterosexual. Thus, M.D. suggests the incident is a misunderstanding and based on
speculation.

OAL DKT. NO. EDU 08600-24
5
On March 12, 2024, the investigator concluded that N.D.’s actions on January 31,
2024, constituted a HIB. The conclusion’s justification focused on the criteria for a HIB
determination: N.D. approached J.S. “when she was alone, continued to follow her and
comment[ed] on her appearance, even after she asked him to leave her alone” (a verbal
act); the incident took place walking home after school; and J.S. reported being fearful
and uncomfortable going into her home, which interfered with her education. R-2. The
report also noted that N.D.’s comments were not insulting or demeaning and did not
substantially affect the school’s operation. Ibid. In other words, the HIB investigator relied
upon J.S.’s statements about the incident, her feelings regarding the interaction, and her
identification of N.D. While M.D. questions the reliance on accounts by Calello or Hyunh,
I FIND the HIB determination did not focus on those statements. Further, N.D. made no
formal statement about the incident to the investigator despite numerous requests to
contradict J.S.’s version of the January 31, 2024, events.
On March 28, 2024, Westfield’s Anti-Bullying Coordinator wrote to N.D.’s parents,
informing them of its HIB investigation concerning N.D.’s actions and determination that
a HIB incident occurred. 	The letter explains that the District’s HIB policy requires the
District to notify parents of the “nature of the investigation, whether the District found
evidence of HIB, and whether consequences are imposed, or services provided to
address the incident of HIB.” R-4. The letter also advised N.D.’s parents that they could
request a hearing before the Board. Ibid.
M.D. maintains that the District did not adequately advise him of the HIB claims
against N.D. Yet, he also asserts that he was on the call with N.D. and Huynh when she
asked N.D. about the January 31, 2024, incident.
N.D.’s discipline for the HIB action was student counseling, a student conference,
and an IEP services review. R-2.

OAL DKT. NO. EDU 08600-24
6
At some point, M.D. reported a HIB against N.D. occurring on January 22, 2024,
which the District found to be a District Code of Conduct violation, not a HIB. 	M.D.
requested a hearing regarding the District’s determinations regarding the incidents on
January 22 and January 31, 2024. R-5.
Following the April 23, 2024, Board hearing requested by M.D., the Board wrote to
M.D. advising that it upheld the determination. 	Specifically, on January 22, 2024, the
incident “was not motivated by any actual or perceived characteristic” necessary to
conclude that a HIB had occurred. Ibid. M.D. did not dispute that determination in this
case.
However, the Board also advised M.D. that it agreed with the conclusion that N.D.
committed an act of HIB on January 31, 2024.1 Id. 	The Board also advised M.D. that if
he had additional allegations of HIB occurrences against N.D., he should complete
additional documentation to allow for an investigation. This appeal followed.
On May 7, 2024, the Board voted to affirm the HIB against N.D. and advised M.D.
of his right to appeal the Board’s determination.
DISCUSSION AND CONCLUSIONS OF LAW
Summary Decision Standard
A party may move for summary decision upon any or all substantive issues in a
contested case. N.J.A.C. 1:1-12.5(a). The motion for summary decision shall be served
with briefs and may be served with supporting affidavits. Ibid. “The decision sought may
be rendered 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).
1 The letter references January 31, 2023, which was an error.

OAL DKT. NO. EDU 08600-24
7
An issue is “genuine” if, considering the burden of persuasion at trial, the evidence
submitted on the motion and all legitimate inferences could sustain a decision in favor of
the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 530 (1995). A
fact 	is 	“material” 	if 	it 	will 	“affect 	the 	outcome 	of 	the 	suit 	under 	the 	governing
law.” 	Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Significantly, “bare
conclusions in the pleadings, without factual support in tendered affidavits, will not defeat
a meritorious application for summary judgment.” U.S. Pipe and Foundry Co. v. Amer,
Arbitration Assn., 67 N.J. Super. 384, 399−400 (App. Div. 1961) (citations omitted.); see
R 4:46-5(a) (non-movants “may not rest on mere allegations or denials” to create a
genuine issue of material fact.)
When a party moves for summary decision, supported by affidavit, the burden
shifts to the adverse party to identify specific facts showing there is a genuine issue
resolvable only by an evidentiary proceeding. N.J.A.C. 1:1-12.5(b). Given this burden
shift, a party opposing the motion “who offers no substantial or material facts in opposition
to the motion cannot complain if the court takes as true the uncontradicted facts in the
movant’s papers.” 	Burlington Cnty. Welfare Bd. v. Stanley, 214 N.J. Super. 615, 622
(App. Div. 1987). An opponent’s failure to make such a showing entitles the moving party
to 	summary 	judgment. Brill, 142 N.J. at 	529. 	The 	Brill 	Court 	advised 	that 	such 	a
liberalized standard allows for summary judgment in more cases in “a time of great
increase in litigation and one in which many meritless cases are filed.” Id. at 539 (citation
omitted.)
Viewing the facts most favorable to M.D., the non-movant, he essentially disputes
the witness statements by Calello and Hyunh and asserts J.S.’s statement amounts to
speculation. I found that Calello’s statement offered little to prove the occurrence of the
HIB incident. M.D. does not dispute that N.D. might have been in the area where the HIB
occurred because he lived nearby. In other words, he only offers another reason that N.D.
was in the area, not that he was not there. Even if N.D.’s statement to Hyunh was
inaccurately reported to the investigator and not considered here, J.S. undeniably
reported the incident and identified N.D. as the individual who committed the HIB and

OAL DKT. NO. EDU 08600-24
8
how those events made her feel. Significantly, accepting that M.D. was on the call with
Hyunh where N.D. was notified of the HIB allegation against him, any claim that M.D. was
unaware of the nature of the HIB against N.D. is unfounded. Regardless, the District
separately notified M.D. that a HIB allegation against N.D. occurred. Notably, J.S.’s
statement and identification of N.D. are the basis of the investigator’s conclusion that N.D.
committed a HIB. Further, there is no dispute that N.D. provided no formal statement to
the HIB investigator to counter the allegations made by J.S., and no evidence exists that
he did. Similarly, the District does not dispute that N.D. has a disability or, for purposes
of this motion, that N.D. has no sexual interest in females. Thus, I CONCLUDE that no
genuine issue of any material fact exists, and summary judgment is appropriate here.
HIB
The Legislature designed the Anti-Bullying Rights Act (ABRA), N.J.S.A. 18A:37-13
to 	-37, 	“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(f). 	Each
school district must adopt a policy that prohibits HIB and provides “a procedure for prompt
investigation of reports of violations and complaints.” 	N.J.S.A. 18A:37-15(b)(6). 	Every
student is bound by the District’s HIB policy, and the District is required to investigate HIB
complaints and enforce its HIB policies, as it did here. Id.
Student confidentiality laws preclude the District and Board from sharing another
student’s confidential information, including their name, when conducting investigations
under the ABRA. 	See, e.g. New Jersey Pupil Records Act (PRA), N.J.S.A. 18A:36-19
(operating in conjunction with the Family and Educational Records Privacy Act, 20 U.S.C.
§ 1232g, to safeguard pupil records.)
When a local board of education acts within its discretionary authority, its decision
is entitled to a presumption of correctness that will not be disturbed unless there is an
affirmative showing that the decision was “patently arbitrary, without rational basis or

OAL DKT. NO. EDU 08600-24
9
induced by improper motives.” 	Kopera v. W. Orange Bd. of Educ., 60 N.J. Super. 288,
294 (App. Div. 1960). 	To overcome that presumption, the petitioner must prove by a
preponderance of the evidence that the board “acted in either bad faith or in disregard to
the circumstances.” T.B.M. v. Moorestown Bd. of Educ., EDU 2780-07 (February 6,
2008), aff’d, Comm’r (April 25, 2013) (citing Thomas v. Morris Twp. Bd. of Educ., 89 N.J.
Super. 327, 332 (App. Div. 1965), aff’d, 46 N.J. 581 (1966)). In other words, the burden
is a heavy one. 	Indeed, the Commissioner recognizes that Boards should "have the
discretion to operate their schools in a manner that best serves their unique communities,”
the Commissioner will not interfere with that discretion concerning HIB matters unless the
Board acted arbitrarily, capriciously, or unreasonably. G.H. & E.H. o/b/o K.H. v. Franklin
Lakes Bd. of Educ., EDU 13204-13 (Feb. 24, 2014), aff’d, Comm’r (Apr. 10, 2014), n.4.
Further, “where there is room for two opinions, action is not arbitrary or capricious when
exercised honestly and upon due consideration[,]” the Commissioner will not substitute
his judgment for that of the Board. Bayshore Sewerage Co. v. Dept. of Envtl. Prot., 122
N.J. Super. 184, 199 (Ch. Div. 1973), aff’d, 131 N.J. Super. 37 (App. Div. 1974).
Still, 	the 	Board’s 	factual 	determinations 	require 	such 	deference 	only 	when
supported by substantial credible evidence, e.g., having a rational basis. 	Quinlan v.
Board of Ed. of North Bergen Tp., 73 N.J. Super. 40 (App. Div. 1962); Schinck v. Board
of Ed. of Westwood Consol. School Dist., 60 N.J. Super. 448 (App. Div. 1960).
Additionally, the reviewing tribunal may reject the findings of fact if the evidentiary record
does not support them. In re Suspension of License of Silberman, 169 N.J. Super. 243,
255-56 (App. Div. 1979), aff’d, 84 N.J. 303 (1980).
Under the ABRA, “harassment, intimidation or bullying” (HIB) is defined 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

OAL DKT. NO. EDU 08600-24
10
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
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]
Thus, a HIB finding requires demonstrating three elements, assuming the alleged
incident or incidents occurs on school property, at a school-sponsored function, on a
school bus, or off school grounds as provided for in N.J.S.A. 18A:37-15.3. 	Indeed,
N.J.S.A. 18A:37-15.3 mandates that HIB provisions apply to student conduct off school
grounds when a “school employee is made aware of such actions.” 	Undeniably, the
incident took place off school grounds. N.D. denies following the victim from school and
lives in the area where the incident occurred. However, HIB prohibitions need not be on
school grounds or at a school event. Instead, the HIB policies apply to students off school
grounds. M.D. challenges the security guard’s statement that he saw N.D. following the
two girls leaving school because he could not identify the individuals involved. I agree
that this alone would be insufficient to support that N.D. followed the girls. Yet, the crux
of this case is the victim’s recount of the incident, which is far from being simply
speculation or supposition. 	J.S. reported the HIB event to a school employee, which
occurred between two students soon after school ended while she was walking home
from school. Thus, I CONCLUDE that this part of N.J.S.A. 18A:37-15.3 is met.

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Initially, the conduct must be reasonably perceived as motivated by any actual or
perceived enumerated characteristic or other distinguishing characteristic. Secondly, the
conduct must also substantially disrupt or interfere with the rights of other students or the
orderly operation of the school. The third condition is that one of the three criteria
enumerated in the Act regarding the effect of the conduct must also be satisfied. Wehbeh
v. Bd. of Educ. of the Twp. of Verona, Essex County, EDU 10981-18, Initial Decision
(December 29, 2019), http://njlaw.rutgers.edu/collections/oal, rejected and remanded
Comm’r Decision No. 51-20 (February 4, 2020), 2020 N.J. Agen. Lexis. 50.
Regarding the first HIB element, the statute defines HIB is an action "that is
reasonably perceived as being motivated either by any actual or perceived characteristic.”
N.J.S.A. 18A:37-14. 	Here, the statute requires an analysis of the victim's perception of
the actor's motivation and whether that perception is reasonable. Wehbeh, at *8
(emphasis added). Yet, an analysis of the actual motivation of the actor is not required.
Id. Here, I CONCLUDE it was not arbitrary, capricious, or unreasonable for the Board to
conclude that a reasonable person would consider N.D.’s comment about the female
victim being pretty, wanting to lift her backpack up, and continuing to follow her after being
told to stop, was gender motivated. 	Whether N.D. is sexually interested in males, not
females, does not change that the victim reasonably perceived that his actions were
gender oriented.
The second element requires that the incident created a “substantial interruption
in the ordinary operation of the school or in the disruption of the victim’s education or the
rights of other students.” 	The incident was limited but the victim was uncomfortable,
fearful, and reported the incident.
In D.D.K. o/b/o D.K v. Board of Education of the Township of Readington,
Hunterdon 	County, EDU 	07682-15 	(October 	6, 	2016), 	adopted, 	Comm’r 	Decision
(November 	11, 	2016), 	https://njlaw.rutgers.edu/collections/oal/, 	the 	Commissioner
discussed those situations where the Board’s HIB determination satisfied the second
prong, explaining that:

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[C]onduct has been determined to substantially disrupt the
orderly operation of the school when students are so upset or
embarrassed that they are "not fully available for learning. "
G.H. and E.H. on behalf of K.H. v. Board of Education of the
Borough of Franklin Lakes, Bergen County, OAL Dkt. No.
EDU 	13204-13, 	decided 	February 	24, 	2014, 	adopted
Commissioner 	Decision 	No. 	157-14, 	April 	10, 	2014.
Additionally, 	when 	other 	students 	are 	"so 	affected" 	by
behavior that they report it, the orderly operation of the school
may be substantially disrupted. T.R. and T.R. on behalf of
E.R. v. Bridgewater-Raritan Regional Board of Education,
OAL Dkt. No. EDU 10208-13, decided September 25, 2014,
adopted Commissioner Decision No. 450-14, November 10,
2014.
Id.
Here, J.S. was in fear of harm, the incident interfered with her education and
created a hostile educational environment for J.S. R-2. Thus, I CONCLUDE that the
Board satisfied the second requirement necessary to conclude that N.D. committed a
HIB.
The third element under N.J.S.A. 18A:37-14(a) requires a conclusion that the HIB
act is one that "a reasonable person should know, under the circumstances, will have the
effect of physically or emotionally harming a student," "has the effect of insulting or
demeaning a student," or "creates a hostile educational environment." In Wehbeh, the
Commissioner highlighted that “none of these criteria require the actor to have actual
knowledge of the effect that their actions will have, or to specifically intend to bring about
that effect.” Id. Further, any one of the three criteria satisfies the third element. Here, the
Board found that N.D.’s actions made the victim fearful of harm. N.D.’s disabilities do not
excuse his inappropriate actions. J.S. repeatedly refused hugs and asked N.D. to stop
following her multiple times. Thus, a reasonable person would know their conduct was
causing distress. 	Hence, I CONCLUDE the Board was not arbitrary, capricious, or
unreasonable in reaching that conclusion, meeting the third prong of the analysis.

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Notably, N.J.A.C. 6A:16-7.7(a)2 requires that the consequences stemming from a
HIB reflect the nature of the actions and the perpetrator’s disabilities, if any. 	Here, the
discipline imposed was student counseling, a student conference, and IEP services
review. The District imposed no suspension and was aware of N.D.’s disabilities, calling
for an IEP services review following the HIB determination.
Here, M.D. presented no credible evidence that the Board acted arbitrarily or that
its decision did not have a rational basis. M.D. received notice of the HIB allegation and
had no entitlement to specific student information about the victim. Even disregarding the
witness statements by Calello and Hyunh for this motion, I found that the Board’s HIB
conclusion had a rational basis, and that evidentiary support existed to support its
conclusion. M.D. asserts there was a “witch hunt” against his son for which he supplies
no evidence and disregards the District’s obligations to investigate reports of HIB conduct.
I am mindful of M.D.’s strong desire to protect his son from harm and determinations with
which he disagrees. Still, I CONCLUDE that the Board’s decision that N.D. committed a
HIB was appropriate and supported by a rational basis and sufficient evidence.
ORDER
Given my findings of fact and conclusions of law, I ORDER that the petitioner’s
appeal is DISMISSED.
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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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 21, 2025
DATE 	NANCI G. STOKES, ALJ
Date Received at Agency: 	January 21, 2025
Date Mailed to Parties:
ljb

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APPENDIX
APPENDIX
Submissions Considered
For Petitioner
Petition
Emails dated November 26, December 3, and December 27, 2024.
For Respondent
Motion, brief, and supporting certification with exhibits
Reply brief dated December 27, 2024.