K.P., on behalf of minor children, J.P. and J.P. v. Board of Education of the Borough of North Arlington, Bergen County, 10/4/22, (#260-22)

260-22
New Jersey Commissioner of Education
Final Decision
K.P., on behalf of minor children, J.P. and J.P.,
Petitioner,
v.
Board of Education of the Borough of
North Arlington, Bergen County,
Respondent.
Synopsis
Petitioner appealed the decision suspending her two eighth-grade children for violations of the Board’s
student conduct policies based on their alleged involvement with a Google slideshow and Snapchat
conversations which contained racial slurs, anti-Semitic and anti-LGBTQ+ comments, personal student
information, explicit photos and videos, and threats of physical and sexual violence. J.P. and J.P. denied
responsibility for the postings. The suspension determination followed an investigation by the
North Arlington Police Department, which traced the Internet Protocol (IP) address associated with the
postings to the petitioner’s home, and a disciplinary hearing before the Board. Petitioner sought to
have the suspension decisions reversed and removed from her children’s school records.
The ALJ found, inter alia, that: the parties relied on the record of the disciplinary hearing before the
Board; the witnesses in that proceeding had not been sworn or affirmed; further, the screenshots from
Snapchat and the Google slideshow presented as evidence by the Board had not been marked as
exhibits during the disciplinary hearing; since no specific images were marked as exhibits at that hearing
and attorneys on both sides of the case cannot attest that the screenshots presented in the OAL were
the same documentary evidence that was considered by the Board at its disciplinary hearing, there was
no foundation to allow these exhibits to be admitted into evidence. Based on the foregoing, the ALJ
concluded that the Board’s actions were arbitrary, capricious and unreasonable. Accordingly, the ALJ
overturned the suspensions and ordered the discipline removed from the children’s student records.
On review, the Commissioner disagreed with the ALJ’s finding that the Board’s decision to suspend J.P.
and J.P. was arbitrary, capricious or unreasonable. The Commissioner found, inter alia, that decisions of
a local board of education acting within its discretionary authority are entitled to a presumption of
correctness; the evidence presented at the Board hearing complied with the statute governing
disciplinary hearings, even if the manner of presenting that evidence would not meet the evidentiary
rules of other forums; there was no basis for the ALJ to exclude the proffered testimony or screenshots
from evidence; and the record shows that the conduct of J.P. and J.P. at issue here did materially and
substantially interfere with the requirements of appropriate discipline in the operation of the school.
Based on the threats of violence contained in the postings, the Commissioner concludes that it was not
arbitrary, capricious, or unreasonable for the Board to find that there was good cause for suspension
pursuant to N.J.S.A. 18A:37-2. Accordingly, the Initial Decision was rejected, and the petition dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader
and has been neither reviewed nor approved by the Commissioner.

OAL Dkt. No. EDU 04249-21
Agency Dkt. No. 74-5/21
New Jersey Commissioner of Education
Final Decision
K.P., on behalf of minor children, J.P. and J.P.,
Petitioner,
v.
Board of Education of the Borough of
North Arlington, Bergen County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
and the exceptions filed by the Board pursuant to N.J.A.C. 1:1-18.4 have been reviewed and
considered.1
Petitioner’s minor children were accused of violations of the Board’s student conduct
policies based on their involvement with a Google slideshow and Snapchat conversations
(collectively, the “postings”) that contained racial slurs, anti-Semitic and anti-LGBTQ+
comments, personal student information, explicit photos and videos, and threats of physical
and sexual violence. The incidents occurred throughout the fall of 2021 and winter of 2022, but
the Board waited to impose discipline while the North Arlington Police Department (NAPD) was
investigating the source of the postings. After issuing subpoenas to Google and Verizon, the
NAPD traced the the Internet Protocol (IP) address associated with the postings to petitioner’s
1 Petitioner did not file a reply to the Board’s exceptions.
260-22

2
home. The administration recommended that J.P. and J.P. be suspended, and the Board held a
disciplinary hearing in March 2022. Principal Nicole Russo testified about the early steps of the
investigation, the effect that the postings had on the school, and the decision to suspend J.P.
and J.P. NAPD Detective Nayda testified about the subpoenas and stated that charges had
been filed against J.P. and J.P. Counsel for petitioner cross-examined both witnesses. J.P. and
J.P. then testified, denying that they were responsible for the postings.
On March 19, 2022, the Board issued a decision suspending J.P. and J.P until they were
cleared by a psychiatrist to return to school.2 Petitioner appealed, seeking to have the decision
to suspend her children reversed and the suspensions removed from their records.3 At the
OAL, the parties relied on the record of the disciplinary hearing before the Board. The
Administrative Law Judge (ALJ) excluded the witness testimony, finding that the witnesses had
not been sworn or affirmed. The ALJ also excluded all of the screenshots, finding that they had
not been marked as exhibits during the disciplinary hearing. The ALJ concluded that the Board’s
actions were arbitrary, capricious, and unreasonable and overturned the suspensions.
In its exceptions, the Board argues that all of the documentary evidence presented at
the disciplinary hearing was provided to petitioner and, in the absence of any evidence that
those materials were withheld,4 there was no legal prerequisite for counsel to lay a fresh
evidentiary foundation for the ALJ to consider the record of what occurred before the Board.
2 Separate decisions were issued for each student, but given their similarities, they will be referred to herein as a
single decision for ease of reference.
3 The petition of appeal initially included a request for emergent relief to return J.P. and J.P. to school, but when
they children were cleared to return, petitioner withdrew her request for emergent relief.
4 The Commissioner notes that petitioner has not argued that any material was withheld. Petitioner’s arguments
have focused on the sufficiency of the evidence.

3
The Board notes that petitioner’s counsel provided the materials to the ALJ as hearing exhibits
and agreed that they should be considered by the ALJ, such that it was improper for the ALJ to
refuse to consider them. The Board also notes that petitioner’s counsel cross-examined the
Board’s witnesses during the disciplinary hearing. According to the Board, the ALJ
misconstrued an appeal from a disciplinary action as a trial de novo and improperly disregarded
the law governing disciplinary hearings before boards of education, which sets forth specific
standards for the conduct of hearings that do not require witnesses to be sworn or documents
to be identified and formally admitted into evidence. Finally, the Board argues that the ALJ
erroneously substituted his judgment for the Board’s, contrary to the standard of review that
applies to discretionary decisions of boards of education.
Upon review, the Commissioner disagrees with the ALJ that the Board’s decision was
arbitrary, capricious, and unreasonable. 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 motives.” Kopera v. W. Orange Bd. of Educ., 60
N.J. Super. 288, 294 (App. Div. 1960). Furthermore, “where there is room for two opinions,
action is not arbitrary or capricious when exercised honestly and upon due consideration[,]”
and the Commissioner will not substitute her judgment for that of the board. Bayshore
Sewerage Co. v. Dep’t. of Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff’d, 131 N.J.
Super. 37 (App. Div. 1974).
Pursuant to N.J.A.C. 6A:16-7.3(a)(10), when a board of education imposes a long-term
suspension on a student, the board must provide a formal hearing that affords certain

4
procedural due process protections. Students must have the opportunity to 1) confront and
cross-examine witnesses if there is a question of fact and 2) present their own defense, which
includes the opportunity to produce oral testimony or written supporting affidavits. The record
is clear that the Board complied with these requirements. It was not arbitrary, capricious, or
unreasonable for the Board to rely on evidence that complied with the statute that governs
disciplinary hearings, even if the manner of presenting that evidence would not meet the
evidentiary rules of other forums. Therefore, there was no basis for the ALJ to exclude the
testimony or screenshots.
The Commissioner must next determine whether the Board’s decision was arbitrary,
capricious, or unreasonable in light of the evidence presented to the Board during the
disciplinary hearing. The evidence presented in support of the suspension included Detective
Nayda’s testimony that the IP address associated with the postings was traced to petitioner’s
house. The record reflects that the only other residents of the house were petitioner, her
husband, and an older child who was in college, none of whom were believed to be responsible
for the postings. The NAPD found the evidence sufficiently compelling to proceed with charges
against J.P. and J.P.5 J.P. and J.P.’s defense at the hearing consisted primarily of their denials.
Additionally, counsel for petitioner pointed out to the Board that Detective Nayda had not
brought documentation related to the subpoenas or examined the family’s Wifi or computers,
and argued that tracing the IP address associated with the postings to petitioner’s house is
insufficient to conclude that J.P. and J.P. were responsible for the postings. While the
5 The Board found that the testimony of Detective Nayda and Principal Russo was credible. While the
Commissioner is not obligated to defer to a board of education’s credibility findings, based on the applicable
standard of review, the Commissioner concludes that there is nothing in the transcript of either witness’s
testimony that would suggest that it was arbitrary, capricious, or unreasonable for the Board to find their
testimony credible.

5
testimony and arguments may leave room for different opinions regarding whether J.P. and J.P.
were responsible for the postings, a difference of opinion is insufficient to overturn the Board’s
decision. Bayshore Sewerage Co., supra, 122 N.J. Super. at 199. Based on the evidence, the
Commissioner finds that it was not arbitrary, capricious, or unreasonable for the Board to
conclude that J.P. and J.P. were responsible for the postings. Additionally, given the
disrespectful, obscene, and violent nature of the postings, the Commissioner also concludes
that it was not arbitrary, capricious, or unreasonable for the Board to find that J.P. and J.P.’s
conduct was in violation of the student conduct policies.
Under N.J.A.C. 6A:16-7.5, discipline for conduct that occurred away from school grounds
must be reasonably necessary for reasons relating to the safety, security, and well-being of
other students, staff, or school grounds, and the conduct must materially and substantially
interfere with the requirements of appropriate discipline in the operation of the school.
Principal Russo testified that the postings caused a substantial disruption at school, with effects
lasting for months. Many students visited the guidance office for counseling and some students
reported that they were afraid to return to school. Multiple students were so affected by the
postings that they contacted the NAPD. Parents repeatedly contacted the administration
seeking answers and action. Based on that information, the Commissioner concludes that it
was not arbitrary, capricious, or unreasonable for the Board to conclude that discipline was
appropriate under N.J.A.C. 6A:16-7.5.6 Furthermore, based on the threats of violence
contained in the postings, the Commissioner concludes that it was not arbitrary, capricious, or
6 The Commissioner notes that the level of disruption caused by the postings far exceeds the circumstances of
Mahanoy Area School District v. B.L., 594 U.S. ____ (2021), in which the Supreme Court held that brief class
discussions for a couple of days and some students being upset about social media postings did not rise to the level
of substantial disruption.

6
unreasonable for the Board to find that there was good cause for suspension pursuant to
N.J.S.A. 18A:37-2.
Accordingly, the Initial Decision is rejected, and the petition of appeal is hereby
dismissed.
IT IS SO ORDERED.7
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
7 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 4, 2022
October 4, 2022

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 04249-21
AGENCY DKT. NO. 74-5/21
K.P. ON BEHALF OF MINOR CHILDREN,
J.P. AND J.P.,
Petitioner,
v.
BOARD OF EDUCATION OF THE BOROUGH
OF NORTH ARLINGTON, BERGEN COUNTY
Respondent.
S. Emile Lisboa, IV Esq., (Galantucci and Patutuo, attorneys) for petitioner
Eric L. Harrison, Esq., (Methfessel and Werbel, attorneys) for respondent
Record Closed: May 23, 2022 	Decided: July 15, 2022
BEFORE ERNEST M. BONGIOVANNI, ALJ:
STATEMENT OF THE CASE
Petitioner, K.P. on behalf of minor children, a daughter, J.P. and son, J.P.
(petitioner or K.P.) 	filed a Petition of Appeal, N.J.A.C. 6A: -3-1.5 and alleged that
respondent, the Board of Education of the Borough of North Arlington, Bergen County
(BOE), violated her children’s rights in their handling of disciplinary proceedings against

OAL DKT. NO. EDU 04249-21
2
the two students, then attending 8 th grade at their middle school in North Arlington
(School), which resulted in an indefinite period of suspension during which time the
children had to see a psychiatrist and could not return to school until he or she “cleared”
them.
The BOE made findings of fact that the children violated Policies and Regulations
Nos. 5500 (Expectations for Pupil Conduct), 5600 (Student Discipline/Code of Conduct),
5620 (Expulsion), N.J.S.A. 18A:37-2 (causes for Suspension or Expulsion of a Student),
N.J.S.A. 2C:12-3 (Terroristic Threats), and the Middle School’s 2020-2021 Handbook.
Petitioner’s request for a Fair Hearing was transmitted to the Office of Administrative law
on My 14, 2021. 	The petitioner initially sought relief from the suspensions imposed on
the two children. However, after the conditions of the suspension were lifted, and before
the Emergent Hearing could be conducted, petitioner withdrew her application for
emergent relief. 1
BACKGROUND AND PROCEDURAL HISTORY
A disciplinary hearing at the North Arlington BOE concerning the charges against
J.P. and J.P. took place at the School on March 15, 2021. 	Although the alleged facts
were somewhat complicated, essentially, one child was accused of creation of a Google
slideshow, 	and 	posing 	as 	another 	student 	while 	making 	racial 	slurs 	anti-Semitic
comments, posting student personal information, posting explicit sexual pictures and
videos, and the other child, on another occasion, creating at least two fake Snapchat
accounts, 	posing 	as 	another 	student, 	using 	the 	“N” 	word, 	making 	anti-LGBTO+
comments, threatening to rape and shoot another student, making claims of sexual
contact 	with 	another 	student’s 	mother 	and 	“other 	inappropriate 	and 	disrespectful
statements.” Although some of the postings and images concerned “students,” no
particular students were targeted or named in them. 	None of these violations of school
policy took place on school grounds; nor was school property involved. 	Both children
denied committing any of the offenses.
1 Several months after the emergent proceedings, respondent moved for summary decision, arguing that with the lifting
of the suspension against the children, the issues raised in the petition seeking a Fair Hearing at the Office of
Administrative Law were moot. This motion was denied, in a decision dated, February 2, 2022.

OAL DKT. NO. EDU 04249-21
3
Although 	the 	suspensions 	were 	eventually lifted 	after 	the 	children met 	the
demands of the school, the suspensions remain on record. Petitioner seeks to have the
decision of the North Arlington BOE reversed and her children’s names and school
records be cleared. 	Respondent believes their decision to suspend the children was
reasonable and ask that their decision be affirmed.
Hearings were held via Zoom April 20, 2022 and April 26, 2022. The record was
left open until May 23, 2022 for receipt of post hearing briefs at which time the record
closed.
FACTUAL DISCUSSION AND FINDINGS OF FACT
The parties agreed to rely on the record of the disciplinary hearing before the BOE
which consisted mostly of a transcript of said proceeding. 	They added to that record a
Certification by the Principal concerning the suspensions (R-4). 	They also added
photocopies of images 	that purportedly were 	seen on 	the 	Snapchat and Google
slideshow. (Joint Exhibits K-M). No specific images on these exhibits were specifically
identified at the hearing before the BOE.
The allegations against the two children brother and sister were serious. 	The
essential findings made by the BOE as stated in Exhibits J-1 and J-2, J.P. (female) wee
that between September 23, 2020 and November 23, 2020 and again between December
22, 2020 and January 15, 2021, J.P.(female) was allegedly involved in the creation of a
Google Slideshow, in which he posed as another student “while making racial slurs, anti-
Semitic comments posting personal student information and posting explicit sexual
pictures and videos.” During the same time, J.P. also created at least two fake Snapchat
accounts, 	posing 	as 	another 	student, 	“using 	the 	‘N’ 	word, 	making 	anti-
LGBTQ+comments, threatening to rape and shoot another student, making claims of
sexual contact with a student’s mother, amount other inappropriate and disrespectful
statements.” (J-1, Summary of the Evidence Presented.) J.P. (male) was charged with
the virtually identical conduct. 	The sole evidence consisted of statements made by

OAL DKT. NO. EDU 04249-21
4
Detective Nayda, the juvenile detective for the North Arlington Police Department, and by
Principal Russo. The two children completely denied the allegations.
The BOE found “credible” the statements by Detective Nayda, the juvenile
detective for the North Arlington Police Department. He “issued a subpoena to Snapchat
and learned that the [faked Snapchat accounts] were accessed from the IP address of”
J.P. (female) and J.P. (male)’s household.” 	The Detective “also learned that the email
used to create the accounts” came back to a J.P. (female) account.
As noted in the post hearing brief of respondent, which recounts as “testimony” the
unsworn “evidence” at the school hearing, Detective Nayda, in order to trace who was
connected to the Google slideshow, also created and sent a subpoena to Google who
responded with an IP address of Verizon. 	Subsequently, the respondent states (in its
post hearing brief) “a subpoena to Verizon yielded an IP address that was traced directly
to J.P. (male) and J.P. (female)’s household.” As further evidence that J.P. (male) was
actually “behind” the Google slideshow, the BOE relied on Principal Russo’s recounting
of a Google meet session, regarding the Google slideshow during which J.P. shut off his
camera after which Principal Russo then received an electronic message that the
slideshow had been deleted.2
There were several questionable practices in the methodology of the BOE’s
decision making, at least as can be discerned in its decision. Under “II, Summary of the
Evidence Presented,” it states that before the hearing the accused were “provided with
a list of potential witnesses and documentary evidence.” (emphasis supplied). 	Thus, it
would appear that the children (and their mother and attorney) were only given prior to
the hearing a “list” of documentary evidence intended to be introduced. 	A list is not the
same as having a copy of all the documents on the list. 	Further and more disturbing,
during the hearing, “the BOE had the documentary evidence on Chromebooks for their
2 It is interesting that this described incident occurred in October 2020. J.P. (female) and J.P. (male) were charged as
a ‘result of the actions that occurred (emphasis supplied) on or about September 23, 2020 through on or about
November 23, 2020 and from on or about December 22, through on or about January 15, 2021 which time she was
alleged to be in the creation of a Google slideshow (emphasis added). What does a deleted Google slideshow have to
do with the actions that occurred between November 2020 and January 15, 2021, if it was deleted in October 2020?

OAL DKT. NO. EDU 04249-21
5
review.” 	Included were “many screenshots taken of the Snapchat accounts and the
Google Slideshows.” Based on the certified transcript of the proceedings, it appears that
the children, their mother, their lawyer were not given the same Chromebooks and thus
could not effectively examine the documentary evidence being used against them.
Worse. regarding said images, none of them were identified, marked, or entered as
evidence. 	Further, the BOE’s decision does not describe any of images except in the
most general way, e.g., “the level of threats in the posts was extreme and other posts
were very sexual and very graphic.” 	It appears obvious that it was of the utmost
importance that the actual images that were on the Snapchat accounts and the Google
slideshow be marked into evidence so that the witnesses could effectively attempt to
prove their innocence, as they maintained throughout the proceedings.
More 	problematically, 	the 	hearing 	consisted 	entirely 	of 	statements 	or
conversations by witnesses who, according to the Transcript, were never given, and
never 	took 	the 	oath 	nor 	affirmed 	as 	to 	the 	truthfulness 	of 	anything 	they 	said.
Consequently, J.P. and J.P. were effectively deprived of the right to cross examine
witnesses against them, as those witnesses were not under oath nor affirmation, and not
speaking under penalty of possible punishment for failing to tell the truth. 	Thus the
“hearing” was fundamentally unfair.
As noted, none of the screenshots from the Google slideshow or snapchats were
sufficiently identified in the record of the proceeding before the BOE to know what images
the BOE were reviewing on the Chromebooks. 	It is clear from the hearing that no
particular screenshots were entered into evidence, so we only have the BOE’s witnesses
and their vague characterizations as to what was contained on the Google Slideshow and
Snapchat accounts rather than the copies of the actual 	evidence they reviewed.
Whatever value the unsworn to evidence contained in the transcript has, it shows that
none of the specific screenshots were entered as evidence. The Exhibits identified in the
hearing before me were, both parties agreed, were received in Discovery, but 	they are
very possibly not the same screenshots that the BOE considered in making its decision.
There is simply no way of knowing.

OAL DKT. NO. EDU 04249-21
6
At the BOE hearing, the Detective admitted that the images being shown to the
BOE on the date of the hearing had been altered from the way he had seen them on the
actual devises when he was in process of obtaining the subpoenas. 	Furthermore, the
Detective did not produce for anyone copies of the Google Verizon and Snapchat
subpoenas that he created nor the actual written response by those companies to the
subpoenas. 	Instead, he 	just 	recounted what 	these documents 	from these 	three
companies said. Even if Detective Nayla had been under oath, the BOE should not have
simply accepted his statement as to what was on the subpoena’s responses, and they
should 	not 	have 	accepted 	his 	statements 	as 	evidence 	without 	his 	providing 	the
documents.
Finally, the parties now appear to agree that the creation of Google slideshow does
not prove who placed what information or images on the slideshow at any given time
because those to whom the slideshow was sent can edit it or add to it. 	Further ,one
cannot tell who made which statements on the Snapchat account. Clearly, some others
than the creators of these two fakes snapchat account seemed to have created similar
offensive comments and were not investigated or disciplined for it.
LEGAL ANALYSIS AND CONCLUSION OF LAW
The burden is on the petitioner to overcome the “presumption of correctness” by
providing by a preponderance of the evidence that the BOE’s action was arbitrary
capricious and unreasonable. 	The BOE stated in its decision that it relied on the lay
opinion of Detective Nayda that he believed J.P. (female) was responsible for creating
the false and offensive Snapchat accounts, and that J.P. (male) was, in the BOE’s words
“behind” the creation of the Google slideshow.
While I agreed to allow the parties to rely on the record below, I did not know until
I read the BOE certified transcript , that would that none of the “witnesses” who spoke at
the hearing were ever sworn in nor affirmed. 	Regarding any documentary evidence, I
was also unaware that no specific images from the Snapchats or Google slideshow were
marked as exhibits at the hearing.

OAL DKT. NO. EDU 04249-21
7
I cannot sustain guilty verdicts resulting in serious disciplinary action that are not
based on sworn or affirmed testimony nor on documents for which no foundation has
been supplied. Again, both attorneys agree that they cannot attest that the screenshots
in Joint Exhibit P-K are the same documentary evidence that was considered by the BOE.
I therefore cannot allow them to be admitted to evidence, for lack of foundation. 	I also
cannot admit the full transcript consisting mostly of unsworn and unaffirmed testimony.
When I agreed to allow the parties to rely on the record below, I did not know until
I read the BOE certified transcript, that none of the “witnesses” who spoke at the hearing
were ever sworn in, nor did they affirm. 	N.J.A.C. 1:1-5.8 (d) provides that “A witness may
not testify without taking an oath or affirming to tell the truth under the penalty provided
by law.” I cannot admit the full transcript consisting almost entirely of unsworn testimony.
Regarding any documentary evidence, I was also unaware that no specific images
from the Snapchat or Google slideshow were marked as exhibits at the hearing. 	Both
attorneys agree that they cannot attest that the screenshots in Joint Exhibit P-K are the
same documentary evidence that was considered by the BOE. I therefore cannot allow
them to be admitted to evidence, for lack of foundation
Regarding the testimony at the hearing, although the BOE’s decision specified the
dates in which these activities took place, it did not state what specific offensive material
was available (or when it was available) for others to see. They did not rule out that others
could have edited and changed whatever J.P. (male) and/or J.P. (female) may have
posted. They did however provide credible uncontested evidence that J.P. (male) and J.
P. (female) were good students whom they would not, I believe, normally suspect to be
responsible for such behavior, and that the children were at least consistent in steadfastly
denying they were responsible for the actions for which they were charged.
Further, the detective wasn’t made to bring the subpoena data with him to the BOE,
so it could be entered as evidence. In his investigation, the Detective ignored threats that
has been made to J.P. and J.P. he didn’t know whether any content was added or deleted
from the slideshow, did not seem to know that IP addresses can periodically change, and
did not know how many students had participated in the Snapchat.

OAL DKT. NO. EDU 04249-21
8
Finally, as stated in the BOE’s decision, Principal Russo relied on her interviews
with “several, several, students” but never bothered to say which students and what they
actually said, to conclude J.P. and J.P. were guilty. 	This is even more egregious and
fundamentally unfair given that her own statements were not made under oath or
affirmation.
I agree with petitioner that this was an instance of a rush to judgement which
required a truly expert investigation and plausible expert testimony, in order to attempt to
determine who made the offensive comments on the slideshow and Snapchats. At a very
minimum, the hearing should have been conducted so that there was certainly that the
evidence the BOE had (on their Chromebook) was given to J.P. and J.P. to know the
evidence they would be confronted with as no specific documents were entered into
evidence on the record. 	Because of the failure to do so, we are uncertain even today
what evidence the BOE considered. Accordingly in making my decision, I exclude all the
alleged screenshots in the exhibits or described from the exhibits in the briefs because of
the lack of foundation as to whether that evidence was used at the hearing. I also exclude
any so called testimony which attempts to describe the content of the images, as they
were mostly double hearsay and especially because they were not sworn or affirmed to.
While it is true that both parties had a right to call witnesses and have a fresh and
Fair Hearing as provided for by our rules, here the parties chose to rely on the record
below, which in this case is terribly inadequate and unreliable to justify the severe
punishment these two then eight graders were handed out after being rather hastily
accused.
Accordingly, I FIND that no other conclusion can be drawn but that the BOE’s
actions were unfair, unreasonable, and the essence of arbitrariness and capriciousness,
and that its decision to find J.P. (female) and J.P. (male) of the alleged conduct and the
consequent suspension which lasted 73 days should be OVERTURNED, and that this
record of punitive disciplinary action be removed permanently from their records.

OAL DKT. NO. EDU 04249-21
9
CONCLUSION
I CONCLUDE the finding that the offensive Snapchat comments and images, and
images 	and 	statements 	on 	a 	Google 	slideshow 	account 	allegedly 	committed 	by
petitioners was not proven, and that any presumption of validity the BOE’s decision had
was easily overcome by a preponderance of evidence showing the investigation and
especially the proceedings before the BOE, and thus its conclusions to be unfair,
arbitrary, capricious, and unreasonable. Therefore, the disciplinary action of suspension
or any other disciplinary action cannot be sustained.
ORDER
It is therefore ORDERED that the decision of suspension for J.P. (male)’s conduct
and J.P. (female)’s conduct be OVERTURNED, and the disciplinary history heretofore
imposed as a result of the BOE’s decision be removed from the school’s records.
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.
July 15, 2022
DATE 	ERNEST M. BONGIOVANNI, ALJ
Date Received at Agency: 	July 15, 2022
Date Mailed to Parties: 	July 15, 2022
id

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APPENDIX
LIST OF WITNESSES
For Petitioner:
None3
For Respondent:
None4
LIST OF EXHIBITS IN EVIDENCE
Joint Exhibits:
R-15 	BOE Decision on Disciplinary Hearing on J.P. (female) dated March 19, 2021
R-2 	BOE Decision on Disciplinary Hearing on J. P (male) dated March 19, 2021
R-3 	Transcript of Proceeding March 15, 2021
R-4 	Certification of Stephen M. Yurchak Ed. D, Superintendent of BOE
R-5 	Pro Se Petition of Appeal by K.P., dated May 11, 2021
R-6 	Emails by K.P. to NJ DOE Commissioner, dated May 11, 2021
R-7 	Emails concerning withdrawal of emergent application.
P-A 	BOE District Policy 5500
P-B 	BOE District Policy 5600
P-C 	BOE District Policy 5610
R-D 	BOE District Policy 5620
R-E 	N.J.S.A.18A:37-2 Causes for suspension or expulsion of students
3 J.P. (male) and J.P. (female) identified as “G.P.” spoke at the hearing; however, as they were never placed under
oath, their statements do not constitute admissible “testimony”.
4 Nicole Russo, Principal at Veterans Middle School, and Detective Jeramiah Nayda spoke at the hearing; however,
as they were never placed under oath, their statements do not constitute admissible “testimony”.
5 These exhibits were pre-marked and petitioner’s and respondent’s exhibits however all agreed with my suggestion
they could be listed as Joint Exhibits.

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R-F 	N.J.S.A. 23:12-3 Terroristic Threats
R-G 	Middle School Handbook
R-H 	Discipline Log for J.P. (female) 2018-2021
R-I 	Attendance Record for J.P. (female) 2018-2021
R-J 	Interim Reports and grades for J.P. (female) 2018-2021
R-K 	Images reportedly from computers/screenshots of Google slideshow and
snapchats (80 pages) (Not in Evidence-no foundation)
R-l 	Parent Portal questions responses (Not in Evidence)
R-M 	Notice that psychiatric eval has not been received