R.M. and J.M., on behalf of minor child, O.M. v. Board of Education of the Borough of Mountain Lakes, Morris County, 12/9/2024, (#447-24)

447-24
OAL Dkt. No. 04986-24
Agency Dkt. No. 72-3/24
New Jersey Commissioner of Education
Final Decision
R.M. and J.M., on behalf of minor child, O.M.,
Petitioners,
v.
Board 	of 	Education 	of 	the 	Borough 	of
Mountain Lakes, Morris County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL)
have been reviewed and considered. The parties did not file exceptions.
This matter concerns a determination by the Mountain Lakes Board of Education (Board)
that petitioners’ son, O.M., committed an act of harassment, intimidation, and bullying (HIB)
when he made a comment towards a Black student that included the n-word. 	The student
(complainant) reported the incident on June 8, 2023. Her HIB reporting form indicated that at
approximately 10:00 am on June 8, 2023, “I was walking up the ramp when they called me the
n-word from behind. Asked if they had a problem and told them I would knock their teeth out
right now. 	I called my mom and she told me not to.” 	(Complainant’s HIB 338 Form). 	The
complainant’s reporting form lists O.M. and another student (student #2) as the alleged
offenders.

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The Board commenced an HIB investigation on June 8, 2023, the day of the alleged
incident. 	According to the HIB Investigation Report, Anti-Bullying Specialists interviewed the
alleged offenders that afternoon. O.M. reported that he and student #2 were trying to get into
a friend’s class. They were walking behind a teacher, Ms. Geveke, and the complainant “was in
the middle” so student #2 said “move, move, move,” to O.M. so they could avoid being seen by
the teacher. 	(HIB Investigation Report). 	O.M. also wrote in a witness statement dated
June 8, 2023, that student #2 said the words, “move, move, move” while walking behind the
complainant and her friend. (O.M.’s Written Statement). O.M. further explained that he and
student #2 were confused when the complainant then turned around and said, “What did you
say?” and that she would “knock [their] teeth out.” 	(HIB Investigation Report). 	When
questioned, both O.M. and student #2 denied using the n-word during the encounter.
The HIB Investigation Report indicates that investigators tried to speak with the
complainant on June 8, 202; however, she had been picked up from school early. Prior to the
complainant leaving school, her mother reported to Vice Principal Lisa Cortese that the
complainant was “upset and feeling uncomfortable in school.” 	Ibid. 	Anti-Bullying Specialists
interviewed the complainant the following day, on June 9, 2023. The complainant explained that
she was walking up a ramp to class the previous morning, and O.M. and student #2 were walking
behind her; “[t]hey said something before something nigger and then they said something else.”
Ibid. Following the incident, the complainant went to the bathroom and told her mother over
the phone that “someone called me nigger in the hallway.” Ibid. When asked who did it, the
complainant identified OM and another student she did not know. 	The complainant also
reported that Mountain Lakes teacher Linda Aldrich was in a bathroom stall while she was

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speaking to her mother and that when Aldrich came out, she told the complainant to come to
her room if she had a problem. The complainant noted that she went to Aldrich’s room and told
her what happened; from there she and Aldrich went to the principal’s office to report the
incident.
Aldrich recounted, in a written statement dated Thursday, June 8, that she “overheard
[the complainant] on the phone with her mother.” (Linda Aldrich’s Written Statement). Aldrich
noted that the complainant “was very upset about what 2 boys had said behind her back in the
hallway between classes.” Ibid. Aldrich states that the complainant later came to her room and
reported that “two boys were behind her on the ramp near room 341. She heard them say, ‘Go
nigger, go.’” Ibid.
The investigators concluded that an act of HIB had occurred based on the information
collected in the investigation. Further, the investigators found that the victim was targeted based
on her race and color and that she feared being verbally harassed by the alleged offenders inside
of school. 	The students were given 3 days of out-of-school suspension, and counseling was
provided to the complainant. Superintendent Michael Fetherman affirmed the findings of the
investigation. 	Petitioners appealed this matter to the Board, and a hearing was held on
September 19, 2023. Petitioner’s counsel and O.M. appeared. O.M. told the Board that he had
said, “Move, Nikki, move.” The Board vacated the HIB finding and remanded the matter to the
administration for further investigation and review given the new evidence provided by O.M.
during the hearing.
On September 28, 2023, the District commenced a second investigation. In his interview,
O.M. disclosed that he, not student #2 was the speaker and that he had said, “Move, Nikki,

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move.” (Addendum Report). When reminded that his written statement from the day of the
incident states the words, “move, move, move,” O.M. responded, “I am not sure why I said two
different things.” He then added, “They are both correct.” Ibid. When questioned further about
the discrepancy in his statements, O.M. refused to answer, and the interview ended. Student #2
was interviewed that day also and stated that O.M. was the speaker, and said, “Move, Nikki,
move.” Ibid. During the complainant’s September 28, 2023, interview, she reported that she
heard O.M. and student #2 say the n-word but was not “100% sure what else they said, but it
was something like walk nigger walk or go nigger go.” Ibid.
The second investigation concluded that O.M. committed HIB against the complainant.
Fetherman found the complainant to be credible and noted her visceral reaction caught on
surveillance camera, indicating her displeasure with the use of the n-word. In contrast, he found
that O.M. was not credible and that he and student #2 made up the testimony, “Move, Nikki,
move” to avoid responsibility. Further, Fetherman found that O.M. said, “Walk, nigger, walk or
Go, nigger, go.” (Notice of Board Decision, 10/19/23). The Board affirmed Fetherman’s decision
and petitioners appealed the HIB finding to the Commissioner of Education. Petitioners argue
that the HIB investigation was incomplete as the Board failed to interview additional witnesses
who they believe were in the hallway during the incident. 	Petitioners also allege that the
investigation did not produce sufficient evidence to support the finding of HIB.
After the matter was transmitted to the OAL, the Board filed a Motion for Summary
Decision, and the petitioner filed opposition. The Board then filed its reply. The ALJ granted the
Board’s motion for summary decision, concluding that the action that the Board took to
determine whether O.M. engaged in HIB conduct was not arbitrary, capricious, or unreasonable.

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Specifically, the ALJ concluded that the Board properly conducted the required investigation and
that Fetherman’s findings supported the Board’s determination that O.M. engaged in HIB.
Upon review, the Commissioner concurs with the ALJ’s conclusion that the Board’s HIB
determination was not arbitrary, capricious, or 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. Bd. of Educ. of W.
Orange, 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 his judgment for that of the board.
Bayshore Sewerage Co. v. Dep’t of Env’t Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff’d, 131
N.J. Super. 37 (App. Div. 1974). Regarding HIB determinations, this standard has been explained
as requiring a petitioner 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 Cnty., OAL Dkt. No. EDU 13204-13 (Initial Decision, Feb. 24, 2014), adopted,
Commissioner Decision No. 157-14 (Apr. 10, 2014).
The Anti-Bullying Bill of Rights defines HIB as follows:
[A]ny gesture, any written, verbal or physical act, or any electronic
communication, whether it be a single incident or a series of
incidents, that is reasonably perceived as being motivated either by
any actual or perceived characteristic, such as race, color, religion,
ancestry, 	national 	origin, 	gender, 	sexual 	orientation, 	gender
identity and expression, or a mental, physical or sensory disability,
or by any other distinguishing characteristic, that takes place on
school property, at any school-sponsored function, on a school bus,
or off school grounds as provided for in section 16 of P.L. 2010,
c.122 (C. 18A:37-15.3), that substantially disrupts or interferes with

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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.
Here, the record shows that the Board’s investigation was sufficiently thorough. 	The
Board commenced an HIB investigation regarding O.M.’s alleged comment on June 8, 2023, the
day of the alleged incident. 	The HIB Investigation Report and Addendum Report indicate the
methodology the Board utilized in reaching the HIB determination. The Anti-Bullying Specialists
interviewed both alleged offenders hours after the incident, and interviewed the complainant
the following day, on June 9, 2023. 	The investigation also considered the complainant’s HIB
report form, and written statements from the complainant, Aldrich, O.M. and student #2, that
were dated June 8, 2023, the day of the incident. The Board vacated their HIB determination and
reopened the investigation after O.M. provided new information. The complainant, student #2,
and O.M. were all interviewed again on September 28, 2023, and the investigators inquired into
O.M.’s inconsistent testimony. Lastly, video surveillance of the incident was also reviewed during
the investigation. Given the written statements, interview notes, remand upon the discovery of
new testimony, and the review of video surveillance of the alleged incident, the Commissioner
concurs with the ALJ that the Board properly undertook the required investigation.

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Petitioners argue that the HIB investigation was not complete or thorough because the
Board failed to interview Ms. Geveke and the complainant’s friend, both of whom they allege
were in the hallway at the time of the incident. In addition, petitioners argue that the Board
failed to seek out additional witnesses that were in the vicinity of the incident, which
unreasonably turned the investigation into a battle of credibility between the complainant and
the alleged offenders. However, the Investigation Report indicates that the Board had already
utilized a reasonable methodology in investigating the alleged HIB. For the Commissioner to hold
that interviewing other witnesses would have been more reasonable than the investigative steps
the Board took would require the Commissioner to substitute his judgment for that of the
Board’s, which is impermissible.
Furthermore, any testimony indicating that the alleged offenders did not say the n-word
would, at most, balance the other evidence on the record from the complainant and Aldrich that
O.M. did say the n-word. While evidence may leave room for two opinions regarding whether
O.M. said the n-word, it is insufficient to overturn the Board’s decision, since it does not
demonstrate that the Board’s decision was arbitrary, capricious, or unreasonable.
The ALJ correctly concluded that Fetherman’s findings, as reported to the Board,
supported the Board’s determination that O.M. committed HIB. 	Fetherman’s findings are
sufficiently supported by the record. 	In the Addendum Report, Fetherman found the
complainant to be credible. 	He referenced the complainant’s emotional phone call with her
mother that was overheard by Aldrich, unbeknownst to the complainant. Fetherman also noted
that the complainant provided consistent testimony whenever asked about the incident; for
instance, the complainant was steadfast in her allegation that the comment included the n-word,

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and she consistently identified O.M. as an alleged offender from the beginning. 	Lastly,
Fetherman found that the video surveillance footage showed the complainant’s visceral response
to the use of the n-word.
In a letter to petitioners, dated October 19, 2023, Fetherman found that O.M. was not
credible due to inconsistencies in his testimony throughout the investigation as well as O.M.’s
response when confronted with said inconsistencies. 	The record supports Fetherman’s
credibility finding regarding O.M. 	In both his written statement and his interview from
June 8, 2023, O.M. reported that student #2 was the speaker, and that he had said, “Move, move,
move.” At that time, neither O.M. nor student #2 reported that O.M. had said, “Move, Nikki,
move.” 	During the remand interview, O.M. could not account for the discrepancy in his
testimony, stating that both comments are correct. He then refused to answer further questions.
Fetherman concluded in the Addendum Report that O.M.’s reluctance to answer questions
regarding his inconsistent testimony contributed to his lack of credibility as he was unwilling to
make a case for his innocence in response to the allegations.
Lastly, Fetherman’s findings in the October 19, 2023, letter – that O.M. directed a
comment with the n-word towards the complainant, who is African-American; that the comment
was reasonably perceived to have been motivated by the complainant’s race; and that O.M.’s
comment interfered with the complainant’s rights in violation of the Anti-Bullying Bill of Rights
and the Board’s HIB policy – are sufficiently supported by the record. 	As such, the Board’s
reliance on Fetherman’s findings in reaching the HIB decision is not arbitrary, capricious, or
unreasonable, nor does it “…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

9
Lakes, Bergen Cnty., OAL Dkt. No. EDU 13204-13 (Initial Decision Feb. 24, 2014), adopted,
Commissioner Decision No. 157-14 (Apr. 10, 2014).
Accordingly, the Initial Decision is adopted as the final decision in this matter, and the
petition of appeal is hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	December 9, 2024
Date of Mailing: 	December 11, 2024
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-
9.1. Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days
from the date of mailing of this decision.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 04986-24
AGENCY DKT. NO. 72-3/24
R.M. AND J.M. ON BEHALF OF MINOR
CHILD, O.M.,
Petitioner,
v.
BOARD OF EDUCATION OF THE BOROUGH
OF MOUNTAIN LAKES, MORRIS COUNTY,
Respondent.
________________________________________
Joseph J. Bell, Esq., for Petitioners (Bell, Shivas & Bell, P.C., attorneys)
Sean W. Fogarty, Esq. for Respondent (Fogarty and Hara, Esqs., attorneys)
Record Closed: August 16, 2024 	Decided: September 30, 2024
BEFORE R. TALI EPSTEIN, ALJ:
STATEMENT OF THE CASE
Petitioners challenge a determination that O.M., their minor son, engaged in
Harassment, Intimidation, and Bullying (HIB) against an African-American student on
June 8, 2023 (the “Incident”), when he made a comment directed at the student that

OAL DKT. NO. EDU 04986-24
2
included the word “nigger.” 	Should the HIB conclusion stand, even though O.M. claims
he did not utter that word during the Incident? 	Yes. 	Respondent’s determination is
entitled to a presumption of correctness, and petitioners have not established that it is
arbitrary, capricious, or unreasonable.
PROCEDURAL HISTORY
On March 19, 2024, R.M. and J.M. (Petitioners) filed a Verified Petition of Appeal
(Petition) with the Commissioner of Education (Commissioner) challenging the HIB
determination made by the Mountain Lakes Board of Education (Board, or Respondent)
against Petitioners’ son, O.M. 	(Certification of Sean Fogarty, dated July 17, 2024, Ex.
A.) The Petition alleges that the HIB investigation was not thorough or complete in that
additional 	witnesses 	were 	not 	interviewed, 	and 	the 	HIB 	determination 	was 	not
supported by the record and/or based on disputed findings. 	(Id., Ex. A, ¶¶ 21-23; 31-
33.) The Petition also asserts procedural deficiencies with the Board’s actions. (Id., Ex.
A, ¶ 34.) Petitioners seek to set aside the Board’s decision and remove the HIB finding
from O.M.’s records on the grounds that the Board’s determination was arbitrary,
capricious, and unreasonable. (Id., Ex. A, ¶ 36.)
On 	April 	9, 	2024, 	Respondent 	answered 	the 	Petition 	denying 	Petitioners’
allegations of wrongdoing. 	(Id., Ex. B.) 	In its Answer and Separate Defenses,
Respondent maintains that it followed all required procedures and that its decision met
the HIB criteria. (Id., Ex. B.) Respondent demands judgment for relief, ordering that the
Petition be dismissed with prejudice and declaring that its finding that O.M. engaged in
conduct which constituted HIB was not arbitrary, capricious or unreasonable. 	(Id., Ex.
B, Wherefore Clause).
On June 13, 2024, Respondent served its first set of Interrogatories and Request
for Admissions on Petitioners. 	(Id., Ex. C.) 	Respondent’s counsel further certifies that
Petitioners did not object to the Request for Admissions or provide written discovery
responses by the June 28, 2024, deadline, and the matters are deemed admitted
pursuant to N.J.A.C. 1:1-10.4(c). 	(Id., ¶¶ 4−5.) 	Petitioners purported to serve belated,
unsworn and undated responses, which were forwarded by email on July 24, 2024.

OAL DKT. NO. EDU 04986-24
3
The Department of Education (DOE) transmitted this case to the Office of
Administrative Law (OAL), where it was filed on April 10, 2024, 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.
The matter was assigned to me on April 19, 2024. 	Following a prehearing
conference and subsequent communications with the parties, I issued a prehearing
order on May 31, 2024, which provided, among other things, a summary decision
briefing schedule.
On July 17, 2024, the Board timely filed its motion for a summary decision.
Petitioners filed their opposition on August 9, 2024, three days past the ordered
deadline. Regardless, the tribunal excuses Petitioners’ delinquency and has considered
the opposition as if it were timely submitted. 	On August 16, 2024, the Board timely
submitted its reply papers.
FINDINGS OF RELEVANT FACT
Based on the documents submitted in support and opposition to the motion for
summary decision, and when viewed in the light most favorable to the non-movants, I
FIND the following FACTS:
It is undisputed that O.M. was a ninth-grade student attending Mountain Lakes
High School (Mountain Lakes) at the time of the Incident, on June 8, 2023. The parties
also acknowledge that O.M. has a 2023−2024 Individualized Educational Program.
There 	is 	no 	claim 	that 	O.M.’s eligibility 	for 	special education at 	Mountain 	Lakes
impacted his ability to fully appreciate his conduct or the Board’s determination that he
engaged in a violation of the Anti-Bullying Bill of Rights Act, N.J.S.A. 18A37-13 to -32
(ABBRA), as adopted by the Board Policy No. 5512.

OAL DKT. NO. EDU 04986-24
4
Regarding the Incident and the ensuing investigation, the following facts are also
undisputed:
On or about, June 8, 2023, Mountain Lakes received a report of a HIB allegation
that occurred on the same day on “the ramp leaving the new wing” of the high school
building. 	(Certification of Michael Fetherman, dated July 17, 2024, Ex. B.) 	As
described verbatim in the HIB 338 Form (the “reporting form”), the Victim (student S.B.)
reported that, at approximately 10:00 am, she “was walking up the ramp when they
called me the nword [sic] from behind. 	Asked if they had a problem and told them I
would knock their teeth out right now. 	I called my mom and she told me not to.” 	(Id.,
Ex. B.) 	The reporting form further identifies O.M. and another student as the alleged
offenders. (Id., Ex. B.)
The Victim completed the reporting form after Linda Aldrich (Aldrich), a Mountain
Lakes teacher, “overheard [the] Victim on the phone with her mother.” 	(Id., Ex. D.) 	In
her witness statement, dated June 8, 2023, Aldrich recounted that the Victim “was very
upset about what 2 boys had said behind her back in the hallway between classes.”
(Id., Ex. D.) 	Aldrich’s statement further detailed that she told the Victim that she “was
available in the art room if [the Victim] needed [her] help.” 	(Id., Ex. D.) 	The Victim
“came to [Aldrich] and told [her] that two boys were behind [the Victim] on the ramp near
room 341.” [The Victim] heard them say, “Go nigger, go.” After listening to the Victim’s
account, Aldrich told her that the Incident “needed to be reported and [they] went to see
[the principal].” (Id., Ex. D.)
In her witness statement, written the same day in the principal’s office, the Victim
wrote that “I was walking in the hallway and I hear nigger from behind me. I turned
around and asked if they had a problem. 	[T]hey said no they were talking about/to
someone else. 	Told them I’ll knock their teeth out and kid said do it. 	I choose [sic] not
to so there wouldn’t be another problem for me.” (Id., Ex. C.) The Victim also filled out
the HIB 338 Form.
Mountain Lakes’ Anti-Bullying Specialists/Investigators, Maria Lindsay (Lindsay)
and Cara Pelchat (Pelchat), investigated the Incident with the assistance of Vice

OAL DKT. NO. EDU 04986-24
5
Principal Lisa Cortese (Cortese). 	Their investigation commenced on the day of the
Incident.
The HIB Report notes that the investigators tried to interview the Victim on June
8, 2023, but she was picked up from school early. (Id., Ex. E.) 	The Victim’s mom had
previously 	advised 	Cortese 	that 	her 	daughter 	might 	be 	picked 	up 	early 	by 	her
grandmother because she was “upset and feeling uncomfortable in school.” (Id., Ex. E.)
The Victim was picked up at 12:05 pm by her grandmother. (Id., Ex. E.)
At 12:23 pm on June 8, 2023, Lindsay and Pelchat spoke with O.M. 	A case
manager also sat in on the discussion. (Id., Ex. E.) As detailed in the HIB Report, O.M.
explained that he and another student (Offender 2) were walking behind a teacher (Ms.
Geveke), and the Victim “was in the middle,” so Offender 2 said “move, move, move” to
O.M. “so that they could get out of Ms. Geveke’s sight.” 	(Id., Ex. E.) 	O.M. used the
same words (“move, move, move”) in the June 8, 2023, witness statement that he
wrote, but in the written statement, O.M. does not clarify to whom the words were
directed (i.e., to O.M. or to the Victim.) (Id., Ex. F.)
O.M. further reported to the investigators that he and Offender 2 “were confused”
when the Victim turned around and said, “What did you say?” and that she would knock
their teeth out. (Id., Ex. E.) O.M. said that he was laughing when Offender 2 responded
to the Victim and told her to “go ahead.” 	(Id., Ex. E.) 	When O.M. was questioned if he
used the “N-word,” he said “no.” (Id., Ex. E.)
Offender 2 was questioned after O.M., and he also denied using the “N-word”
during the encounter described by O.M. (Id., Ex. E.)
On the following day, June 9, 2023, Lindsay and Pelchat met with the Victim to
obtain her statement. The following abbreviated account is taken from the HIB Report:
The Victim identified O.M. and Offender 2 and recounted that “[t]hey said something
before something nigger and then they said something else and I turned around [and]
said do you have a problem and they said no we were talking to someone else, about
someone else, but there was no one else in the hallway.” 	(Id., Ex. E.) 	The Victim also

OAL DKT. NO. EDU 04986-24
6
reported that she turned toward Offender 2 and said she would knock his teeth out
because she thought he was the one who responded to her, but instead walked away
and called her mother. The Victim told her mother that “someone called me a nigger in
the hallway.” (Id., Ex. E.) When her mother asked her who did that, the Victim told her
“it was OM and some other kid.” 	(Id., Ex. E.) 	This was the conversation that Aldrich
overheard in the bathroom.
The Victim then relayed how Aldrich told her to come talk to her if she had a
problem, and after hearing what transpired, they went to speak to the principal. 	When
the principal asked the Victim if she knew “who it was,” she responded that “she was
pretty sure it was O.M.” 	(Id., Ex. E.) 	The Victim also confirmed that she left school
early on the day of the Incident because she “didn’t feel comfortable in school” and “you
never know what will happen . . . like if [she] was going to be harassed or jumped.” (Id.,
Ex. E.)
The HIB Report “concluded that the Incident” was an “act of HIB.” 	(Id., Ex. E.)
The conclusion was “[b]ased on the information collected in the investigation,” which
supported the finding that the Victim, who is African-American, was “targeted based on
her race and color and was in fear of being verbally harassed by the alleged offenders
inside of school.” (Id., Ex. E.)
The results of the HIB investigation were reported to Superintendent Michael
Fetherman (Fetherman). 	(Id., ¶ 17.) 	After reviewing the HIB Report, Fetherman
decided to affirm the findings because he “agreed there was evidence which suggested
that the alleged HIB behavior was motivated by a distinguishing characteristic of the
Victim.” 	(Id., ¶ 17.) 	Fetherman then reported the results of the investigation to the
Board. (Id., ¶ 17.)
On or about June 16, 2023, Fetherman notified Petitioners of the results of the
HIB investigation and their right to request a hearing before the Board. 	(Id., Ex. G.)
Petitioners requested a hearing, which was adjourned to September 19, 2023, to
accommodate Petitioners’ schedule.

OAL DKT. NO. EDU 04986-24
7
On September 19, 2023, the Board held a HIB appeal in executive session.
Petitioners’ counsel presented arguments, and O.M. testified. 	When O.M. addressed
the Board, he reported that he (not Offender 2) said, “Move, Nicki, move.” 	(Id., Ex. I.)
The day after the hearing, the Board wrote to Petitioners, advising that their prior
determination would be modified by vacating the HIB finding and remanding the matter
for further review and investigation. (Id., Ex. I)
Accordingly, the District conducted a further investigation on September 28,
2023, and prepared an Addendum Report. 	(Id., Ex. J.)
As reflected in the Addendum Report, when O.M. was interviewed for the second
time, he admitted that he (not Offender 2) was the speaker and that he said, “Move,
Nicki, move.” 	(Id., Ex. J.) 	When asked why he used the words “move, move, move” in
his statement that was written on the same day of the Incident, he replied, “I am not
sure why I said two different things” and then added, “They are both correct.” 	(Id., Ex.
J.) 	When further challenged, O.M. stated that he did not want to answer further
questions, and the interview ended. (Id., Ex. J.)
During Offender 2’s interview on September 28, 2023, he corroborated O.M. new
account that O.M. was the speaker and that O.M. said, “Move, Nicki, move.” (Id., Ex. J.)
Yet, when he was first interviewed on the same date as the Incident, Offender 2 did not
identify any specific words that were spoken by O.M. (Id., Ex. E.)
When the Victim was interviewed again on September 28, 2023, she reported
that “I heard O.M. and [Offender 2] say nigger.” 	(Id., Ex. J.) 	She was “not 100%” sure
of the words uttered before and after the “N-word” but recalled that “it was something
like ‘walk, nigger, walk’ or ‘go, nigger, go.’” (Id., Ex. J.)
Following Fetherman’s review of the Addendum Report, he concluded that “O.M.
and Offender 2 were not credible and that O.M. said, “Move, nigger, move.” (Id., ¶ 26.)
Fetherman’s findings and the bases upon which they are supported appear in the
section of the Addendum Report titled “Superintendent’s Findings.” (Id., Ex. J.)

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8
The conclusion of the remanded investigation was that O.M. was found to have
engaged in a HIB infraction against the Victim. (Id., Ex. J.)
On 	October 	16, 	2023, 	Fetherman 	reported 	the 	results 	of 	the 	remanded
investigation to the Board at its regularly scheduled meeting, in executive session.
Fetherman 	provided 	Petitioners 	with 	a 	copy 	of 	his 	decision 	on 	the 	remanded
investigation on October 19, 2023. (Id., Ex. K.)
On 	November 	6, 	2023, 	during 	its 	regularly 	scheduled 	meeting, 	the 	Board
deliberated and unanimously voted to affirm Fetherman’s decision and the HIB finding
against O.M. (Id., Ex. L.)
DISCUSSION AND CONCLUSIONS OF LAW
Under the Uniform Administrative Procedure, N.J.A.C. 1:1-1.1 to -21.6, which
governs the conduct of contested cases before the OAL, a party may file a motion for
summary decision on substantive issues in a contested case. 	N.J.A.C. 1:1-12.5(a).
The motion “shall be served with briefs and with or without supporting affidavits.”
N.J.A.C. 1:1-12.5(b). 	The Administrative Law Judge presiding over the contested case
may grant a party’s motion “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.” 	Ibid.
Accord Brill v. Guardian Life Ins. Co. of Am.,142 N.J. 520, 530 (1995). To overcome an
adequately supported motion for summary decision, the non-moving party must submit
an affidavit showing that a genuine issue of material fact exists that can only be
determined in an evidentiary proceeding. N.J.A.C. 1:1-12.5(b).
Further, as applicable here, 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). Stated otherwise, when a local
board of education acts within its discretionary authority, its decision will not be
disturbed unless it is demonstrated that the decision was “patently arbitrary, without

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9
rational basis or induced by improper motives.” 	Kopera v. W. Orange Bd. of Educ., 60
N.J. 	Super. 	288, 	294 	(App. 	Div. 	1960). 	Thus, 	to 	successfully 	challenge 	a 	HIB
determination made by a board of education, a party “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). 	A board’s
decision may also be overturned if its determination violates the legislative policies
expressed or implied in the governing 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 of
Civil Serv., 39 N.J. 556, 562 (1963)), adopted, Comm’r (April 25, 2013).
The Legislature designed the ABBRA, 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).
Under the ABBRA, “harassment, intimidation or bullying” 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
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

OAL DKT. NO. EDU 04986-24
10
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]
Consistent with the ABBRA, the Board adopted a HIB policy, Board Policy No.
5512, mirroring the statutory language. As applied to the facts here, it is beyond dispute
that the conduct at issue met the definition of a HIB.
First, the Incident involved a verbal act. 	As detailed above, the fact that the
utterance included the word “nigger” is sufficiently supported in the record by the
Victim’s repeated statements, as corroborated by Aldrich’s witness statement, which
was made on the same date of the Incident. 	From the Victim’s first account of the
Incident to her mother and then to Aldrich, followed by the Victim’s statement in the HIB
338 Form, her witness statement, initial interview, and second interview during the
remanded investigation, the Victim was consistent and steadfast in her report that the
comment made included the word “nigger.”
Second, 	it 	is 	incontrovertible 	that 	the 	utterance 	of 	the 	“N-word” 	to 	an
African-American student would be reasonably perceived as motivated by an actual or
perceived 	characteristic 	of 	that 	student. 	Third, 	the 	conduct 	towards 	the 	Victim
substantially disrupted the Victim and interfered with her rights in violation of the ABBRA
and the Board policy. 	She retreated from the scene of the Incident, texted her mother,
and then went to the bathroom so she could call her mother “to calm [her] down.” 	She
expressed that she “didn’t feel comfortable in school” and had her grandmother come to

OAL DKT. NO. EDU 04986-24
11
pick her up early. 	The Victim also reported a concern that she could possibly be
“harassed or jumped” if she had stayed in school.
The final criterion for finding that a HIB act occurred is satisfied by meeting one
of the three prongs set forth in the subparts to 18A:37-14. 	In this case, all three are
satisfied. 	Calling 	the 	Victim, an African-American 	student, the 	“N-word” 	has the
indisputable effect of “insulting or demeaning a student.” 	Sufficient evidence in the
record also exists to support the District’s finding that the Victim was insulted by the
comment and understood it to be directed to her. In addition to the Victim’s report, O.M.
and Offender 2 similarly reported that the Victim instantly turned around when she
heard the slur to confront them. Her immediate reaction evidenced that she was deeply
affected by the demeaning comment. The conduct also met the first and third prongs of
N.J.S.A. 	18A:37-14. 	A 	reasonable 	person 	should 	have 	known 	that 	calling 	an
African-American student the “N-word” would have the effect of emotionally harming the
student or placing the student in reasonable fear of physical or emotional harm. Equally
clear is the finding that calling a student the “N-word” creates a “hostile educational
environment for the student” as defined in the statute.
In short, there is no question that the conduct at issue meets the legal definition
of HIB. 	Indeed, Petitioners do not dispute that such conduct constitutes harassment,
intimidation, or bullying within the meaning of the ABBRA. 	Instead, they argue that
O.M. did not engage in that conduct because he did not use the “N-word” in the
utterance he made in the hallway on the day of the Incident. 	Put simply, Petitioners’
position 	is 	that 	the 	superintendent 	should 	have 	believed 	O.M., 	not 	the 	Victim.
Petitioners, thus, seek to have this tribunal hear testimony regarding the Incident and
make its own evaluation of O.M.’s credibility to determine whether he was truthful during
the initial and remanded HIB investigation.
To support their argument, Petitioners cite to caselaw that stands for the general
proposition that credibility determinations are the province of the factfinder and cannot
be adjudicated by summary decision. 	See Avery v. Arthur Armitage Agency, 242 N.J.
Super 293, 307 (App. Div. 1990), citing Judson, 17 N.J. at 75; D’Amato v. D’Amato, 305
N.J. Super. 109, 114 (App. Div. 1997) (cases cited in Petitioners’ Opposition Brief). But

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an evidentiary hearing is not required where the documentary record establishes that
the Board acted within its discretion to determine whether an act of HIB occurred. 	In
other words, to determine whether the Board’s decision was arbitrary, capricious, and
unreasonable, I need only decide whether sufficient credible evidence supports the
Board’s decision. Even if that evidence leaves room for me to form another opinion, it is
insufficient ground to overturn the Board’s decision, “so long as the Board has not acted
dishonestly or in bad faith.” 	R.R. o/b/o minor child, A.R. v. Bd. of Educ. of the Bor. of
Ramsey, Bergen County, No. EDU 0378-23, Initial Decision (Jan 29, 2024), adopted,
No. 131-24 (Comm’r March 8, 2024).
Based on the undisputed facts set forth above, I CONCLUDE that the District
properly undertook the required investigation. 	I further CONCLUDE that Fetherman’s
findings, as reported to the Board, amply supported the Board’s determination that O.M.
engaged in an act of HIB. 	Further, Petitioners failed to present any competent
evidence, in the form of an opposing affidavit as required by N.J.A.C. 1:1-12.5(b), to
overcome summary decision in Respondent’s favor. 	Standing alone, their allegations
that the District’s investigation was “incomplete” because other potential witnesses
could have been interviewed or that the Board “did not hear any other opinions on the
issue besides that of the former superintendent Fetherman”1 do not demonstrate that
the Board “acted in bad faith, or in utter disregard of the circumstances before it.” G.H.
& E.H. ex rel. K.H. v. Bd. of Educ. of Franklin Lakes, No. EDU 13204-13, Initial Decision
(Feb. 24, 2014) (citation omitted), adopted, Comm’r (Apr. 10, 2014).
The record establishes that the Board’s decision to affirm the HIB finding against
O.M. is well-supported by the evidence collected by the District, which included, among
other things, multiple reports from the Victim who remained steadfast in her account that
the offending statement included the “N-word”; a corroborating witness statement from a
teacher made on the same day as the Incident; and O.M.’s accounts of the Incident
which changed over time to admit that he was the speaker, though denying he used the
1 See Petitioners’ Letter Brief in Opposition to Respondent’s Motion for Summary Decision, dated August
9, 2024, p. 9.

OAL DKT. NO. EDU 04986-24
13
“N-word” and refusing to answer additional, follow-up questions during the remanded
investigation.2
That the District’s investigators, Fetherman and, thereafter, the Board believed
the Victim’s account to be more consistent with the evidence than O.M.’s version of the
Incident simply does not render the Board’s decision to affirm the HIB finding arbitrary,
capricious, or against the weight of the evidence. See, e.g., R.R. o/b/o minor child, A.R.
v. Bd. of Educ. of the Bor. of Ramsey, Bergen County, No. EDU 0378-23 (Initial
Decision Jan 29, 2024), adopted, No. 131-24 (Comm’r March 8, 2024) (it is “reasonable
and rational” for the District to have found “the victim’s explanation more consistent with
the evidence collected during the investigation.”)
Accordingly, on the basis of the undisputed material facts and applicable legal
standards, I CONCLUDE that the action of the Board in determining that O.M. engaged
in conduct that constituted harassment, intimidation, or bullying within the meaning of
the ABBRA was not arbitrary, capricious, or unreasonable.
ORDER
Given my findings of fact and conclusions of law, I ORDER that Respondent’s
motion for summary decision is GRANTED and DISMISS the Petitioners’ appeal.
I hereby FILE this initial decision with the ACTING COMMISSIONER OF THE
DEPARTMENT OF EDUCATION for consideration.
This recommended decision may be adopted, modified, or rejected by the
ACTING COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is
authorized to make a final decision in this matter. 	If the Acting Commissioner of the
Department of Education does not adopt, modify, or reject this decision within forty-five
2 The record also includes surveillance video capturing the Victim’s “visceral reaction” to hearing the
“N-word.” (Id., Ex. J.)

OAL DKT. NO. EDU 04986-24
14
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 	ACTING
COMMISSIONER OF THE DEPARTMENT OF EDUCATION. 	Exceptions may be
filed by email to ControversiesDisputesFilings@doe.nj.gov or by mail to Office of
Controversies and Disputes, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton,
New Jersey 08625-0500. 	A copy of any exceptions must be sent to the judge and to
the other parties.
September 30, 2024
DATE 	R. TALI EPSTEIN, ALJ
Date Received at Agency: 	September 30, 2024
Date Mailed to Parties: 	September 30, 2024
cc

OAL DKT. NO. EDU 04986-24
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APPENDIX
EXHIBITS IN EVIDENCE
For Petitioner:
P-1 	Letter Brief in Opposition to Respondent’s Motion for Summary Decision, dated
8/9/24
For Respondent:
R-1 	Letter Brief in Support of Respondent’s Motion for Summary Decision, dated
7/17/24, with Supporting Certifications and Exhibits
Certification of Michael Fetherman, dated 7/17/24, with Exhibits A−L
Exhibit A 	Board Policy No. 5512, revised 4/3/23
Exhibit B 	S.B.’s HIB 338 Form, dated 6/8/23
Exhibit C 	S.B.’s Written Statement, dated 6/8/23
Exhibit D 	Linda Aldrich’s Written Statement, dated 6/8/23
Exhibit E 	District’s HIB Investigation Report #MLHS-0012-22-23
Exhibit F 	O.M.’s Written Statement, dated 6/8/23
Exhibit G 	Correspondence from Michael Fetherman to
Petitioners, dated 6/16/23
Exhibit H 	Correspondence from Petitioners’ Counsel to Michael
Fetherman, dated 7/19/23
Exhibit I 	Notice of Initial Board Decision, dated 9/19/23
Exhibit J 	Addendum Report, dated 9/28/23
Exhibit K 	Notice of Board Decision, dated 10/19/23
Exhibit L 	Board Resolution, dated 11/7/23
Certification of Sean W. Fogarty, Esq., dated 7/17/24, with Exhibits A−C
Exhibit A 	Verified Petition of Appeal, dated 3/19/24
Exhibit B 	Respondent’s Answer and Separate Defenses to
Petition of Appeal, dated 4/9/24

OAL DKT. NO. EDU 04986-24
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Exhibit C 	Respondent’s First Set of Interrogatories and Request
for Admissions, dated 6/13/24
Notice of Motion, dated 7/17/24
Proof of Service, dated 7/17/24
Proposed Order, dated 7/17/2024
R-2 	Letter Brief Replying to Petitioners’ Opposition to Respondent’s Motion for
Summary Decision, dated 8/16/24