W.H., on behalf of minor child, Z.A. v. Board of Education of the City of Beverly, Burlington County, 10/21/21, (#267-21)

OCR transcription for search; preserved printed pages are authoritative

267-21
New J ersey Commissioner of Education
Final Decision

W.H., on behalf of minor child, Z.A.,
Petitioner,
Vv.

Board of Education of the City of Beverly,
Burlington County,

Respondent.

Synopsis
Pro se petitioner appealed the finding of the respondent Board that her son — at the time, a fifth grader at
Beverly City School — was not the victim of harassment, intimidation and bullying (HIB) pursuant to the
Anti-Bullying Bill of Rights Act (Act), NJ.SA. 18A:37-13 et seg. Petitioner alleged that Z.A. was the
victim of HIB when students said mean things to him after his absences from school caused them to lose
an attendance contest and miss out on a pizza party. Petitioner also alleged that students made comments

about a smell in the cafeteria that Z.A. felt were directed toward him. The Board contended that its
actions had complied with the requirements of the Act, and no HIB was found in this case.

The ALJ found, inter alia, that: the required investigation into the alleged incidents of HIB was properly
camied out by the Superintendent/Principal, who oversees the implementation of the HIB statute for the
district, the Anti-Bullying coordinator and the Anti-Bullying specialist — all of whom have substantial
experience in the implementation of the HIB statute; the prompt and thorough investigation was in accordance
with NJ.S.A. 18A:37-14, and concluded that there was a “back and forth” of unkind words between Z.A. and the
other students regarding the effect of his absences on the class’ standing in the March attendance contest; the
investigation did not, however reveal any evidence that Z.A. wes targeted due to a distinguishing characteristic
about him, his race, his gender his ethnicity, or any dement of the HIB statute; instead, the evidence showed that
the incident regarding Z.A.’s attendance represented a conflict between students that did not constitute HIB. The
ALJ ooncluded that the petitioner did not meet her burden of demonstrating that the Board’s determination
of HIB was arbitrary, capricious, or unreasonable. Accordingly, the ALJ denied petitioner’s appeal.

Upon a comprehensive 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 as the alleged actions
were not motivated by a distinguishing characteristic of Z.A. 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 08075-19
Agency Dkt. No. 91-5/19
New Jersey Commissioner of Education
Final Decision
W.H., on behalf of minor child, Z.A.,
Petitioner,
v.
Board of Education of the City of Beverly,
Burlington 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, petitioner alleged that her son was the victim of harassment,
intimidation and bullying (HIB) when students said mean things to him after his absences caused
them to lose an attendance contest and miss out on a pizza party. Petitioner also alleged that
students made comments about a smell in the cafeteria that Z.A. felt were directed toward him.
Following an investigation in accordance with the Anti-Bullying Bill of Rights Act,
N.J.S.A. 18A:37-13 et seq., the Board found the exchange of comments regarding Z.A.’s
absences was a conflict between students that was not motivated by a distinguishing
characteristic of Z.A. The Board also found the smell comments were unsubstantiated based on
surveillance video and interviews with witnesses.
Following a hearing on the merits, the Administrative Law Judge (ALJ)
concluded that the petitioner had not met her burden of demonstrating that the Board’s
267-21

2
determination regarding the HIB allegations was arbitrary, capricious, or unreasonable. The ALJ
also found that the Board conducted a prompt and thorough investigation in accordance with
N.J.S.A. 18A:37-14.
Upon review, the Commissioner agrees with the ALJ that the Board did not act in
an arbitrary, capricious, or unreasonable manner in rendering its HIB determination as the
alleged actions were not motivated by a distinguishing characteristic of Z.A.1 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.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 Although the conduct of the students in this matter did not amount to an act of HIB under the Act, the
Board should take steps to ensure that its code of conduct policy is enforced; and all students should be
encouraged to interact with each other in a more positive manner.
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.
October 21, 2021
October 21, 2021

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION
OAL DKT. NO. EDU 08075-19
AGENCY DKT. NO. 91-5/19

W.H. on behalf of minor child, Z.A.,
Petitioner,
v.
CITY OF BEVERLY BOARD
OF EDUCATION, BURLINGTON COUNTY,
Respondent.

W.H. on behalf of minor child, Z.A., petitioner pro se’

David B. Rubin, Esq., for respondent (David Rubin, P.C., Attorney at Law, attorneys)

Record Closed: June 21, 2021 Decided: July 30 2021

BEFORE JACOB S. GERTSMAN, ALJ t/a:

STATEMENT OF THE CASE

This matter comes before the Office of Administrative Law (OAL) as the result of
petitioning parent challenging the conclusion of respondent, City of Beverly Board of Education’s
(District or Board) investigation that harassment, intimidation, and bullying (HIB) did not occur,
pursuant to N.J.S.A. 18A:37-13.2 et seq.

' Petitioner was represented by counsel at the outset of the case. Counsel's motion to withdraw from the
matter was granted by order dated March 5, 2020, and petitioner determined to proceed pro se

New Jersey is an Equal Opportunity Employer

OAL DKT. NO. EDU 08075-19

PROCEDURAL HISTORY

Petitioner was notified by letter dated April 18, 2019, that the Board of Education upheld
the Administration's finding that there was no instance of HIB in this matter on April 17, 2019.
Petitioner filed her appeal on May 1, 2019, and the matter was transmitted to the Office of
Administrative Law (OAL), where it was filed on June 13, 2019, for a hearing as a contested
case. N.J.S.A. 52:14B-1 to B-15; N.J.S.A. 52:14F-1 to F-13.

The undersigned conducted multiple telephone prehearing conferences, which resulted in
the scheduling of hearing dates for January 6 and 8, 2020. Those hearings were adjourned at the
request of the parties. Following additional telephone conferences a hearing was scheduled for
November 19, 2020, via Zoom Video Communications, Inc. (Zoom). On that date, petitioner failed
to log on for the Zoom hearing and at my request, respondent's counsel was able to get petitioner
on the phone. W.H. then informed me that she did not have access toa computer and requested
an in-person hearing. The matter was then adjoumed. On the January 28, 2021 telephone
conference, petitioner stated that she was ready to proceed with a Zoom hearing, which was then
held on March 29, 2021.

Respondent's post-hearing brief was submitted on June 15, 2021. The record was
closed on June 16, 2021, after petitioner informed the undersigned that she would not be

submitting a post-hearing brief.

FACTUAL DISCUSSION AND FINDINGS

Testimony for Petitioner

W.H., the mother of Z.A., testified that her son Z.A. came home on March 28, 2019, and
informed her that students in his class were upset with him, and were calling himnames. She
added that the other students said that they did not like hinn because his absences from school
caused them not to have a pizza party. The incident was reportect to the school who found that

the incident was not bullying.

OAL DKT. NO. EDU 08075-19

There was no cross-examination.

Z.A. testified that he felt like he was being bullied on the day of the incident. The incident
happened in the library, so he informed the library teacher, Mrs. Butler, who instructed him to tell
his homeroom teacher Ms. Best. There were no problems the rest of the day, but he added that
that the other students did not seem to like him.

On cross-examination, he remembered being asked to write a statement describing
what happened but did not know if the other students were asked to write a statement. His

mother also asked him to write a statement.

Testimony for Respondent

Dr. Elizabeth Giacobbe (Giacobbe), has served as the Superintendent of the District
for ten years. The District, which consists of one school of approximately 350 pre-kindergartners
through eighth graders, is housed in one building. Giacobbe additionally serves as the principal
and oversees the implementation of the HIB statute. Her office is located in the school, and she

is very acquainted with the students.

The District has adopted a policy that contains a definition of HIB that is consistent with that
statute. At time of incident in March 2019, Giacobbe had over seven years of experience applying
the definition of HIB. The school had one anti-bullying specialist, the school psychologist, Chelsea
Light (Light), and an anti-bullying coordinator, Kerri Lawler (Lawler), the director of curriculum and
instruction. By 2019, both had some experience in interpreting and applying the HIB statute in their

respective roles.

On March 28, 2019, when picking Z.A. up from school, W.H. provided the school with
a note from 2.A. describing the incident that happened that morning between him and several
other students. Giacobbe made a photocopy of the written account.

Jodi Gottlieb (Gottlieb), the fifth-grade teacher and who was on duty supervising the

children before homeroom began when the incident occurred, emailed Giacobbe on March 29,

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OAL DKT. NO. EDU 08075-19

2019, describing the incident. (R-1.) Giacobbe had requested that Gottlieb email her account of
the incident. Under the District's HIB procedures, an investigation was initiated as a result of the
allegations being brought to Giacobbe's attention.

During the investigation, Light and Lawler

[ijdentified the students from Z.'s note and interviewed each one of
those students and got their written account of the incident. Z. also
in his note made a claim that some of the students that were sitting
near him that day in the cafeteria at their lunchtime which would
have been after the morning -- the morning lineup that’s discussed
in the email -- somebody was saying a comment about that
something smelled bad.

Then Mrs. Light and Ms. Lawler interviewed — went back and
reviewed the videotape to see who was sitting near Z. at the time
in the lunchroom and interviewed those students as well to get the
account of what occurred in the cafeteria during lunchtime.”

TT 37: 1-16

By way of background, the school sponsors contests throughout the year to combat
chronic absenteeism. In this instance, it was a “March Madness” competition, named for the
annual NCAA Basketball Tournament. Each classroom was assigned a college or university
team and the classes competed against each other based on their attendance rate, until one

class became the overall winner of the tournament.

Z.A. was absent twice that week and some of his classmates questioned him when he
retumed to school, accusing him of causing the class to lose in the tournament. The investigation
determined that the children engaged in a “back and forth” where the other students “did admit that
they were sort of, you know, questioning him and upset with him, but that Z. also retumed, you
know, some -- some of the jabs back at the — the kids verbally.” (TT: 40: 17-20.) However, the
investigation did not reveal any evidence that Z.A. was being targeted because of any particular
distinguishing characteristic about him, his race, his gender, his ethnicity, or anything the HIB

statute focuses on.

OAL DKT. NO. EDU 08075-19

While the investigation did substantiate the students questioning Z.A. about his
absences, it concluded that “since it didn’t fall underneath the qualifying characteristic that it
was not a harassment, intimidation and bullying case.” (TT1 38: 24-25, 39: 1-2.)

That does not mean that the behavior of the students was acceptable and Giacobbe
noted that Gottlieb found the behavior to be unacceptable and put a stop to it. (R-1.)

Regarding 2.A.’s assertion that other students were talking about a bad smell at the table
in the cafeteria, meaning him, Giacobbe reviewed videotape surveillance footage? of the incident.
The footage did not contain any audio. She determined that none of the students that Z.A. claimed
to have made the comments were sitting near him. She questioned the students who were sitting

at the table with Z.A. and all of them stated that no one made a comment about a smell.

As a part of the investigation, written statements were requested and received from
Z.A. (R-6), Student A (R-7), Student B (R-8) and Student C (R-9). The students were also
interviewed by Giacobbe, Light and Lawler with W.H. present during the interview with Z.A.

Giacobbe identified other documents related to the investigation including the March 29,
2019, letter to W.H. advising her that the investigation would be commencing and advising her of
certain procedural rights (R-2); the April 4, 2019, letter to WH. letter informing her that the
investigation was concluded, and that the District determined that there was no HIB (R-3); the
reporting form containing a summary of the allegations and factual findings of the anti-bullying
specialist dated April 5, 2019, (R-4);3 and the Aprit 18, 2079, letter from the District's counsel! to
W.H. confirming that she appeared for a hearing on April 17, 2019, and described the proceedings.
(R-5.) WH. was advised of her right to a hearing, which she exercised. At the hearing, W.H. and
Z.A. were present and W.H. presented her version of events.

2 Giacobbe testified that these videos are recorded over every month or so, as is the District's standard
practice. She added that this video would have been preserved if she thought there would be litigation.

3 This form is not usually provided to parents. W.H. has only been provided with this document as a part of
her appeal of the District's investigation

OAL DKT. NO, EDU 08075-19

Giacobbe concluded by stating that to the best of her knowledge, the HIB statute and

Board policy procedures were followed.

On cross examination, Giacobbe was asked why she took the word of the other children
at the lunch table when they could be covering for each other since if one got in trouble, they all
could, She responded that Z.A. accused Y. and S. of making comments about a bad smell in
the cafeteria, and the investigation found that they were not sitting near Z.A. Additionally, the
investigation was not simply taking the word of Y. and S., as al all of the students sitting near Z.A.

in the cafeteria were interviewed.

She reiterated that there was no finding of HIB because “[uJnder the New Jersey Anti-
Bullying Bill of Rights it does not meet the — their definition of harassment, intimidation and
bullying as it was an equal balance of power and there was no distinguishing characteristics
called into question.” (TT 65:1-5.)

Kerri Lawler is the Director of Curriculum and Instruction, and the Anti-Bullying
Coordinator, for the District. In summarizing her involvement with the investigation, she noted
that W.H. brought in the hand-written letter detailing Z.A.'s account of the incidents. The students
named in the letter were then interviewed by Lawler, Light and Giacobbe, in order to get their
version of the events, with their conclusions drawn from a review of all of the students’ accounts.
She additionally viewed the videotape surveillance footage of the alleged incident in the cafeteria.
Light assisted Lawler in drawing the conclusions based on the evidence, which they then shared
with Giacobbe.

She concluded that the students did not use a distinguishing characteristic when they
were talking with Z.A. and described the conflict as unkind things said back and forth between

Z.A. and the other students.

There was no cross-examination on the issues germane to the instant matter.

OAL DKT. NO. EDU 08075-19

Chelsea Light is the school psychologist and Anti-Bullying specialist for the District.
Her responsibilities include conducting investigations when a bullying claim is made and

working with the anti-bullying coordinator and superintendent to review her findings.

She has a familiarity with the statutory and policy definitions of HIB, which are not the
same as the dictionary definitions.

During the investigation, Light reviewed the written statements and interviewed Z.A.
with W.H. present. She then reviewed all of the statements, written testimony and video, and
concluded that the incidents were a conflict between students without an imbalance of power,

nor a highlighted distinguishing characteristic. Her determination was that the incidents did
not constitute HIB.

There was no cross-examination.

FACTUAL DISCUSSION

Credibility is best described as that quality of testimony or evidence which makes it
worthy of belief. The Supreme Court of New Jersey considered the issue of credibility in In Re
Estate of Perrone, 5 N.J. 514 (1950). The Court pronounced:

Testimony to be believed must not only proceed from the mouth
of a credible witness but must be credible in itself. It must be
such as the common experience and observation of mankind
can approve as probable in the circumstances.

[Ibid. at 522]

See also, Spagnuolo v. Bonnet, 16 N.J. 546, (1954), State v. Taylor, 38 N.J. Super. 6
(App. Div. 1955).

In order to assess credibility, the witness’ interest in the outcome, motive or bias should
be considered. Furthermore, a trier of fact may reject testimony because it is inherently

incredible, or because it is inconsistent with other testimony or with common experience, or

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OAL DKT. NO. EDU 08075-19

because it is overborne by other testimony. Congleton v. Pura- Tex Stone Corp., 53 N.J. Super.
282, 287 (App. Div. 1958).

| deem the testimony of Giacobbe to be credible. Her testimony was calm, clear, and
direct. Further, her professionalism and thorough understanding of both the HIB statute and the
District's policy implementing the statute were apparent. | further deem the testimony of Lawler
and Light to be credible. Their testimony, which corroborated Giacobbe, was professional and
both witnesses demonstrated their substantial knowledge of both the HIB statute and the
District's policy implementing the statute.

| additionally deem the testimony relevant to the instant matter of both W.H. and Z.A., to be
credible. W.H.'s relevant testimony was limited to Z.A. informing her of the incident, her reporting
of the incident to the school, and the ultimate finding of the investigation. Z.A.'s testimony focused
on the fact that he felt bullied during the incident. It should be noted that WH. did testify that she
disagreed with the conclusion of the District's investigation. As she is a pro se litigant, and did not

submit a post-hearing brief, that argument will be addressed in the legal analysis.

After consideration of the testimony and the credibility of the witnesses, | FIND as the
following FACTS. The District has adopted a policy that contains a definition of HIB that is
consistent with that statute. On March 28, 2019, WH. provided the school with a statement from
Z.A. detailing an incident between him and other students. (R-6.) That statement alleged that the
other students were angry at him since his absences caused the class to lose in the school
sponsored March Madness Tournament, which was instituted to combat excessive absences in
the District. 7.A. also alleged that in the cafeteria during lunch, other students complained of a
smell, which Z.A. took to mean him. (Ibid.)

On March 29, 2019, Gottlieb, the teacher supervising the students at the time of the
incident, emailed Giacobbe, at her request, providing her account of the incident. (R-1} Gottlieb
also noted that she found the behavior to be unacceptable and put a stop to it. (Ibid.) An
investigation was then initiated in accordance with the districts HIB procedures. W.H. was notified
of the investigation and advised of her procedural rights by letter dated March 29, 2019. (R-2.)

OAL DKT. NO. EDU 08075-19

The investigation was conducted by Giacobbe, the superintendent and principal who
oversees the implementation of the HIB statute, Lawlor, the Anti-Bullying coordinator, and
Light, the Anti-Bullying specialist. All three have substantial experience in the implementation
of the HIB statute.

The investigation included the review of written statements from Z.A. (R-6), Student A (R-
7), Student B (R-8), and Student C (R-9). These students were all interviewed by Giacobbe,
Lawlor, and Light. Z.A. was interviewed with his mother W.H. present. The video surveillance

footage of the alleged incident in the cafeteria was also reviewed by the three investigators.

Light and Lawler drew their conclusions based on the evidence which was then shared
with Giacobbe. The investigation did conclude that there was a “back and forth” of unkind words
between Z.A. and the other students regarding the effect of his absences on the class’ standing
in the “March Madness” tournament. However, the investigation did not reveal any evidence that
Z.A. was targeted due to a distinguishing characteristic about him, his race, his gender, his
ethnicity, or any element of the HIB statute.

The investigation further found that there was no substantiation of 7.A.’s claim that
students at his table in the cafeteria were talking about a bad smell, that he took to mean
him. The videotape surveillance showed that the students accused by Z.A. were not sitting
with him at the time of the incident. Those students, as well as the students who were seated

with Z.A., all denied making or hearing these statements.

Accordingly, the conclusion of the investigation was that the incident regarding Z.A.'s
attendance represented a conflict between students that did not constitute HIB. Notwithstanding
this finding, the District did not find the behavior acceptable and Gottlieb, the teacher supervising
the students at the time of the incident, put a stop to it. (R-1.)

On April 4, 2019, WH. was advised by letter that the investigation had concluded, and
that the District determined that there was no HIB. (R-3.) W.H. was advised of her right to a
hearing, which she exercised. The hearing took place on April 17, 2019, where W.H. and Z.A.
were present, and WH. presented her version of events and contested the findings of the

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OAL DKT. NO. EDU 08075-19

investigation. The April 18, 2019, letter to W.H. from the District's counsel described the April 17,
2019, proceedings, notified her that the Board had upheld the findings of the investigation that
there was no HIB, and advised her of her right to appeal. (R-5.)

LEGAL ANALYSIS AND CONCLUSIONS

The Anti-Bullying Act is designed “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}. Under
the act, 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 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
PL.2010, ¢.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. areasonable 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.]
Each school district must adopt a policy that prohibits HIB and provides for a prompt

response to any alleged HIB incident. N.J.S.A. 18A:37-15. Once an alleged HIB incident is

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OAL DKT. NO. EDU 08075-19

reported to the school principal, the principal must initiate an investigation within one school day
of the report. N.JS.A. 18A:37-15(b)(6). The investigation shall be conducted by a school anti-
bullying specialist and shall take no longer than ten school days to be completed. Ibid.

The results of the investigation shall then be quickly reported to the superintendent of
schools, who may take certain remedial action. Ibid, The results shall also be reported to the board
of education “no later than the date of the board of education meeting next following the completion
of the investigation, along with information on any services provided, training established, discipline
imposed, or other action taken or recommended by the superintendent.” Ibid.

The parents of the students involved in any alleged HIB incident are entitled to receive
information about the nature of the investigation and the results of the investigation. Ibid.
The parents may request a hearing before the board, and the hearing must be held within
ten days of the request. Ibid. Any hearing shall be held in executive session to protect the
identity of any students involved. Ibid. The board may hear from the anti-bullying specialist
about the incident, recommendations for discipline or services, and any programs instituted

to reduce such incidents. Ibid.

The board must issue a decision at the first meeting after its receipt of the investigation
report. Ibid. The board may affirm, reject, or modify the superintendent's decision. Ibid. The
board’s decision may be appealed to the Commissioner of Education. Ibid.

An action by a board of education “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.” Thomas v. Morris Twp. Bd. of Educ., 89 N.J. Super. 327, 332 (App. Div. 1965).

Thus, in order to prevail, those challenging a HIB decision made by a board of education “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 the Bor. 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/>, Also, a board's decision may be overtumed if its determination violates the
legislative policies expressed or implied in the goveming act. J.A.H. ex rel. C.H. v. Twp. of
Pittsgrove Bd. of Educ., EDU 10826-12, Initial Decision (March 11, 2013) [citing Campbell v. Dep't

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OAL DKT. NO. EDU 08075-19

of Civil Serv., 39 N.J. 556, 562 (1963)], adopted, Comm’ (April 25, 2013) <htto://njlaw.rutgers.edu/
collections/oal>. Finally, the Commissioner of Education will not disturb the local school board
decision unless it was arbitrary, capricious, or unreasonable. Kopera v. W_ Orange Bd. of Educ.,
60 N.J. Super. 288, 294 (App. Div. 1960); Thomas v. Morris Twp. Bd. of Educ., 89 N.J. Super. 327,
332 (App. Div. 1965), affd, 46 N.J. 581 (1966).

Here, petitioner challenges the District's investigation into the incident between Z.A. and
the other students which concluded that there was no HIB. The District has adopted a policy that
contains a definition of HIB that is consistent with that statute. Consistent with that policy, an
investigation was initiated on March 29, 2019, one day after WH. provided 7.A.’s written statement
containing his allegations. The investigation, conducted by Giacobbe, the superintendent and
principal who oversees the implementation of the HIB statute, Lawler, the Anti-Bullying coordinator,
and Light, the Anti-Bullying specialist, concluded on April 4, 2019, with a finding of no HIB. WH.
was advised of her right to a hearing to contest the determination, which she exercised on April 17,
2019. WH. presented her version of events and argued in opposition to the findings of the
investigation. The Board upheld the findings and notified W.H. of her right to appeal. Accordingly,
| CONCLUDE that the District's prompt and thorough investigation of Z.A.’s allegation satisfies the
requirements set forth in N.J.S.A. 18A:37-15(b)(6).

Turning now to petitioner's challenge to the conclusions of the investigation. Giacobbe,
Lawler and Light reviewed the written statements of, and conducted interviews with, the students
involved in the incident, and concluded that Z.A. was not targeted based on his membership in
one of the legally protected categories or some other “distinguishing characteristic” as set forth
in N.J.S.A. 18A:37-14.

Here, the record is devoid of any testimony or documentary evidence to demonstrate that
the students engaged in the “back and forth” targeting Z.A. based on a distinguishing characteristic.
In fact, petitioner does not make this argument. W.H. testified “[w]hen | reported it to the school
they told me he wasn't being bullied. They — they told me that there's certain — you have to be ~
it's like a list of things that you have to do in order to be considered bullying and | feel like it's — it
shouldn't be that way. (TT 15: 25, 16: 1-3.)

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OAL DKT. NO. EDU 08075-19

W.H., like any parent, is seeking to protect her child from what she believes is bullying.
However, not all disputes between students are subject to the HIB statute. M.S. and N.S. o/b/o
J.S. v. Board of Education of the Township of Hainesport, OAL Dkt. No. EDU 8878-16, Agency
Dkt. No. 151-5/16 (Initial Decision, March 28, 2019), adopted (Comm'r, June 18, 2019). (‘It is
important here to note that not all disputes between students, not all actions that may involve

harassment, intimidation and bullying, necessarily come within the reach of the Act. The
motivating element of the matter must be a ‘distinguishing characteristic, actual or perceived,
such as identified in the Act.") It should be noted that notwithstanding the findings of the
investigation, the District does not dispute that the conduct was inappropriate, and the teacher
dealt with it promptly. (District Brief at 8.)

With regard to the “smell comment" alleged by Z.A., the record demonstrates that the
petitioner has failed to present any testimony or documentary evidence to contravene the
findings of the investigation. Giacobbe, Lawler and Light reviewed the videotape surveillance
and determined that the students accused by Z.A. were not seated near him at the time of the
incident. Those students, as well as the students who actually were seated near Z.A., were
subsequently interviewed and all denied making or hearing these statements. W.H. raised the
issue of the students covering for each other to avoid getting in trouble for the incident. However,
as Giacobbe testified, the investigation did not simply take the word of the students accused by
Z.A. All students seated near him were interviewed and the surveillance video demonstrated that

there was no opportunity for this incident to have occurred as alleged by Z.A.

Based on the forgoing, | CONCLUDE that petitioner has not met her burden to
demonstrate that the conclusions of the investigation were made in bad faith. | FURTHER
CONCLUDE that petitioner has not met her burden to show that the Board’s determination,
that the incident between Z.A. and the other students on March 28, 2019, was not HIB, was

arbitrary, capricious, or unreasonable.

ORDER

It is ORDERED that petitioner's appeal of the conclusion of the District's investigation
is DENIED.

13

OAL DKT. NO, EDU 08075-19

| 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.

u4 =
July 30, 2021 Ohad A Jet
(7; _
J

DATE ACOB S. GERTSMAN, ALJ t/a
Date Received at Agency: 2 20/ Fae Si Cp Led
Date Mailed to Parties: “l | 20 [20x OM ale

JSG/nd

14

OAL DKT. NO. EDU 08075-19

APPENDIX
WITNESSES
For Petitioner:

W.H.
ZA.

For Respondent:
Dr. Elizabeth Giacobbe
Kerri Lawler
Chelsea Light

EXHIBITS

For Petitioner:

None.

For Respondent:
R-1 Email from J. Gottlieb to E. Giacobbe, dated March 29, 2019

R-2 Letter from E. Giacobbe to W.H., dated March 29, 2019
R-3 Letter from E. Giacobbe to W.H., dated March 18, 2019
R-4 HIB Reporting Form, dated April 5, 2019

R-5 Letter from D. Rubin, Esq., to W.H., dated April 18, 2019
R-6 Statement of Z7.A., dated March 28, 2019

R-7 Statement of Student A, dated March 29, 2019

R-8 Statement of Student B, dated March 29, 2019

R-9 Statement of Student C, dated March 29, 2019

15