L.K. and T.K., on behalf of minor child, A.K. v. Board of Education of the Township of Mansfield, Burlington County, 12/09/2021, (#318-21)

318-21
New Jersey Commissioner of Education
Final Decision
L.K. and T.K., on behalf of minor child, A.K.,
Petitioner,
v.
Board of Education of the Township of Mansfield,
Burlington County,
Respondent.
Synopsis
This matter on remand from the Appellate Division concerns an alleged act of harassment, intimidation,
and bullying (HIB) by A.K. The respondent Board found that A.K. had committed an act of HIB by
questioning another student (N.V.) about dressing in clothing that is typically associated with females,
when N.V. had previously been known to other students as a boy. The Administrative Law Judge (ALJ)
overturned the Board’s finding that A.K. had committed an act of HIB; however, the Commissioner
reversed the ALJ’s determination, concluding that the Board’s decision was not arbitrary, capricious, or
unreasonable. The petitioners subsequently appealed. The Appellate Division found that the
Commissioner’s decision had not addressed credibility findings made by the ALJ and remanded the
matter to the Commissioner. On remand the Commissioner was directed to “make explicit findings as to
whether the ALJ’s assessment of the testimony regarding A.K.’s allegedly persistent conduct was
arbitrary, capricious, or unreasonable, or was not supported by sufficient, competent, and credible
evidence in the record.”
Upon a comprehensive review of the record on remand, the Commissioner affirmed the Board’s
determination that A.K. committed an act of HIB. In so doing, the Commissioner concluded, inter alia,
that: the distinguishing characteristic of gender identity is present when a student who was previously
known as male begins to wear clothing and use a name typically associated with females; the Board was
not arbitrary, capricious, or unreasonable in determining that A.K. questioned N.V. about her choice of
clothing and commented on the toys that N.V. liked; nor was it arbitrary, capricious, or unreasonable for
the Board to find that A.K.’s questioning and comments interfered with N.V.’s rights because they made
her feel bad; further, it was not arbitrary, capricious, or unreasonable for the Board to find that
questions about a student’s chosen clothing or comments about the toys that she likes are insulting or
demeaning; and the fact that N.V. was upset by A.K.’s actions demonstrates that A.K. created a hostile
educational environment. Accordingly, the Commissioner upheld the Board’s determination that A.K.
committed an act of HIB.
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.

OAL Dkt. No. EDU 07067-16
Agency Dkt. No. 82-3/16
New Jersey Commissioner of Education
Decision
L.K. and T.K., on behalf of minor child, A.K.,
Petitioners,
v.
Board of Education of the Township of
Mansfield, Burlington County,
Respondent.
This matter concerns an alleged act of harassment, intimidation, and bullying (HIB) by
A.K. The Board found that A.K. had committed an act of HIB by questioning another student
(N.V.) about dressing in clothing that is typically associated with females, when N.V. had
previously been known to other students as a boy. The Administrative Law Judge (ALJ)
overturned the Board’s finding that A.K. had committed an act of HIB. The Commissioner
reversed the ALJ’s determination, concluding that the Board’s decision was not arbitrary,
capricious, or unreasonable. Petitioners appealed, and the Appellate Division remanded the
matter to the Commissioner, finding that the Commissioner’s decision did not address
credibility findings made by the ALJ. Specifically, the Appellate Division found that the
Commissioner’s decision was predicated on the finding that A.K. persisted in questioning N.V.
about her gender identity after being counseled to stop, when the ALJ had discounted the
credibility of the testimony on that topic. The Appellate Division directed the Commissioner, on
remand, to “make explicit findings as to whether the ALJ’s assessment of the testimony
318-21

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regarding A.K.’s allegedly persistent conduct was arbitrary, capricious, or unreasonable, or was
not supported by sufficient, competent, and credible evidence in the record.1 L.K. v. Bd. of
Educ. of Mansfield, 2020 N.J. Super. Unpub. LEXIS 2082, *3 (App. Div. Nov. 2, 2020).
The ALJ made two credibility findings regarding A.K.’s allegedly persistent conduct.
First, the ALJ found that “the Board’s witnesses often contradicted each other,” and while she
“attribute[d] this mostly to the length of time that had passed between the incidents in
question and the hearing,” she nonetheless found that “the administrators could not agree on
the most important fact presented to the Board, which is that the HIB continued after
September 29, 2015.” Initial Decision at 22. The Commissioner’s review of the testimony
demonstrates that while the details in the administrators’ accounts of the second incident
between the students were not entirely consistent – likely attributable to the passage of time,
as the ALJ noted – all three administrators were clear that a second incident did occur.
The ALJ summarized the testimony of the school’s principal, Stacey Cullari, as follows:
“On September 30, 2015, other students brought to her attention that A.K. was continuing to
bother [N.V.] in the cafeteria. They said that A.K. was threatening that if [N.V.] told on her, she
would get her parents on [N.V.]. [N.V.] confirmed that she said that. A.K. denied that it
happened. [N.V.]’s mother also reported that [N.V.] told her it happened.” Initial Decision at
14. The ALJ’s summary of the testimony of the school’s anti-bullying specialist,
Cheryl Strickland, included the following: “The next day there was another incident, where
1 In its decision, the Appellate Division upheld the Commissioner’s determination that the procedures used by the
Board in adjudicating the HIB allegations met constitutional requirements. Petitioners filed a petition for a writ of
certiorari with the New Jersey Supreme Court, which was denied on May 18, 2021.

3
[N.V.] said A.K. was harassing [her]2 at lunch, and [N.V.] was upset. A.K. was still bothering
[her], when she had agreed not to do so anymore. A.K. also accused [N.V.] of tattling on her and
told other students.” Initial Decision at 16. The ALJ also noted, “[Strickland] disagrees that A.K.
did not continue to bother [N.V.] after they talked on September 29. She bothered [N.V.] and
teased [her]. Students reported to the teacher that A.K. was bothering [N.V.] at lunch.”
Initial Decision at 17. Regarding the testimony of Superintendent Tiffany Moutis, the ALJ
summarized: “A.K. exhibited HIB on the bus and on the playground. It continued after
administrators told her to stop.” Initial Decision at 20.
The Commissioner’s review of the transcripts demonstrates that the ALJ accurately
summarized this testimony – in other words, that the ALJ did not misrepresent or misattribute
any of these statements.3 Yet despite noting that each of the administrators testified that a
second incident occurred, the ALJ somehow found that they had disagreed with each other
about whether such had occurred. The ALJ did not find that any of the three administrators
was not credible in her own testimony about the second incident – only that there was
disagreement among them. As the Commissioner’s review finds that there was no
disagreement about the occurrence of a second incident, the Commissioner rejects any
credibility finding based on that disagreement. Accordingly, the Commissioner finds that a
second incident did occur.
2 N.V. used masculine pronouns at the time of the incidents and is often referred to throughout the record in that
manner. However, according to one of the district’s witnesses, by the time of the OAL hearings, N.V. used
feminine pronouns. Accordingly, the Commissioner has used feminine pronouns herein.
3 See, e.g., Tr. September 26, 2017, 45:9-53:20, 127:10-128:9 (testimony of Stacey Cullari); Tr. September 26, 2017,
211:25-214:5, 254:10-256:6 (testimony of Cheryl Strickland); and Tr. November 15, 2017 (testimony of Tiffany
Moutis).

4
Nor does the record support the ALJ’s finding that the continuation of the HIB was “the
most important fact presented to the Board.” Initial Decision at 22. Despite the ALJ’s
credibility finding that “Ms. Perrone seemed to have the best recollection,” ibid., the ALJ failed
to acknowledge critical elements of Ms. Perrone’s testimony. Ms. Perrone, who was a member
of the Board at the time the HIB decision was made, and who participated in all of the executive
sessions in which the decision was discussed, stated, “I believe the incident that was brought to
the Board to consider was the incident on the bus, but the additional information was given to
us to understand the entirety of what was going on and that it was continuing and that A.K. was
persisting.” Tr. October 11, 2017, 73:13-17. In reviewing the elements of the Act, Ms. Perrone
described the conduct at issue as the “incidents that occurred on the school bus on
September 29th,” ibid., 103:15-16, “[t]he comments that A.K. made to [N.V.] regarding her
gender, regarding her name, her dressing in clothing that was associated with a girl,” ibid.,
103:18-20, and “telling [N.V.] that [N.V.] should not wear a dress because dresses were for
girls.” Ibid. 104:7-8. It is clear from these statements that, contrary to the ALJ’s conclusions,
the “most important facts” presented to the Board were those about the incident on the bus,
and not about A.K.’s behavior afterwards. These statements are further supported by the ABS
Report presented to the Board, which contains two detailed paragraphs about the bus incident,
and only one sentence at the end of the report regarding the continued behavior at lunch the
following day. Accordingly, the Commissioner rejects the finding that the continued
harassment was the most important fact presented to the Board, because it is not supported by
sufficient, competent, and credible evidence in the record.
In the second credibility finding, the ALJ found that the principal and ABS “confused
information that they received from [N.V.]’s mother with information they received from

5
students,” Initial Decision at 22, including that A.K. teased N.V. by saying that N.V. could not
wear a dress to picture day, and that A.K. threatened N.V. The Commissioner concludes that
the ALJ’s assessment of this testimony was arbitrary, capricious, and unreasonable because it
improperly evaluated the procedures used by district staff during the investigation based on
procedural requirements that do not appear in the Act, conflated the purported procedural
failing with the substance of the allegations, and failed to recognize that the burden of proof is
on petitioners to demonstrate that the Board’s decision was arbitrary, capricious, or
unreasonable. Specifically, the ALJ concluded that the information provided by N.V.’s mother
was not corroborated and that it was therefore insufficient to sustain the superintendent’s
recommendation of HIB, and it was arbitrary, capricious, and unreasonable for the Board to rely
on it. However, the Act does not define acceptable sources of information regarding HIB
allegations, nor does the Act contain any requirements related to hearsay or corroboration.
During the course of the investigation, district staff gathered information from multiple sources
– N.V., N.V’s mother, A.K., T.K., and other students. Making their best judgments based on
their knowledge of the students, the principal and ABS determined that the evidence was
sufficient to substantiate a finding that A.K. had committed an act of HIB, including by engaging
in repetitive conduct. By concluding that the district’s procedures were flawed, the ALJ wrote
requirements into the Act that the Legislature did not include. Moreover, the ALJ allowed her
incorrect conclusion regarding the procedures to influence her conclusion about the merits of
the allegations.
Furthermore, the Commissioner finds the ALJ’s credibility finding regarding
corroboration unreasonable to the extent that it was based on her decision to disregard any
information provided by the district’s witnesses that was not incorporated into their interview

6
notes. Again, the ALJ has written a requirement into the Act that does not exist. The
individuals completing an HIB investigation are not required to take verbatim notes of their
interviews – which would be extremely difficult4 – and the Commissioner finds it entirely
reasonable that they might include information in their reports that is not reflected in their
notes.
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 his
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). 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 the Borough of Franklin Lakes, Bergen Cty., EDU 13204-13,
(Initial Decision February 24, 2014), adopted Commissioner Decision No. 157-14 (Apr. 10, 2014).
Based on the evidence in the record, the Commissioner finds that petitioners did not meet their
burden of demonstrating that the Board’s decision was arbitrary, capricious, or unreasonable.
Contrary to the ALJ’s conclusion, for the reasons detailed herein, the record contains
sufficient credible evidence to support the Board’s decision that A.K. continued to make
4 This is consistent with the witnesses’ explanations as to why certain information was not included in their notes.
See, e.g., Tr. Sept. 26, 2017, 89:15-23; Tr. Feb. 14, 2018, 19:4-9, 39:19-24, 48:5-11.

7
comments regarding N.V.’s gender identity after she had been told to stop by administrators
and her mother. The only evidence petitioner presented to demonstrate that nothing
happened between the students after the bus incident was T.K.’s testimony about what her
daughter told her.5 At best, this evidence balances the evidence that A.K. did continue to make
comments to N.V. While the evidence may leave room for two opinions regarding whether A.K.
continued her conduct, it is insufficient to overturn the Board’s decision, because it does not
demonstrate that the decision was arbitrary, capricious, or unreasonable. To overturn the
Board’s decision would require the Commissioner to substitute her judgment for the Board’s,
which is impermissible.
Even if the Commissioner accepted the ALJ’s credibility findings, and thus disregarded
the cafeteria incident, the Commissioner must still consider the remaining evidence regarding
A.K.’s conduct. Specifically, the ALJ found that A.K. questioned N.V. about her choice of
clothing, and N.V. was upset about the questions. Initial Decision at 22. The ALJ noted that
when the principal and ABS interviewed N.V., N.V. stated that she asked A.K. to stop asking her
questions, and A.K. would not stop; N.V. reported that the questioning made her feel bad.
Ibid. The ALJ found that A.K. admitted that she asked N.V. about the clothing N.V. wore.6
Initial Decision at 23. The ALJ also found that N.V. reported that A.K. made fun of her for liking
Shopkins and Monster High toys. Initial Decision at 22. The Commissioner’s review of the
5 While the Commissioner accepts the ALJ’s finding that T.K. was “mostly credible” in her testimony, that credibility
finding does not dictate the weight placed on that testimony. Because T.K. was not present for the incidents at
issue, her testimony is of limited value in determining what actually happened between the students. The
Commissioner notes that the ALJ relied heavily on the fact that all the information provided to the investigators by
N.V.’s mother was hearsay, but failed to address the same limitation in T.K.’s testimony.
6 A.K.’s mother also testified that “A.K. asked the student many times” about her clothing and “the student was
upset because A.K. kept asking.” Initial Decision at 7. Additionally, the Appellate Division confirmed that the
“parties do not dispute that A.K. questioned N.V. about wearing a dress while riding together on the school bus.”
L.K., supra, 2020 N.J. Super. Unpub. LEXIS 2082, at *4.

8
record supports these factual findings by the ALJ. In particular, the handwritten,
contemporaneous notes of the interview the principal and ABS conducted with N.V. on the date
of the bus incident include this information, Exhibit J-26, and it was recounted by the principal
and ABS in their testimony.7
The Commissioner disagrees with the ALJ that the bus incident was insufficient to
sustain the Board’s finding that A.K. committed an act of HIB. The Commissioner finds that it
was not arbitrary, capricious, or unreasonable for the Board to conclude that N.V. reasonably
perceived A.K.’s questioning regarding her choice of dress or comments about the toys she
liked as being motivated by the distinguishing characteristic of gender identity and that A.K.’s
conduct substantially disrupted or interfered with N.V.’s rights, was insulting or demeaning, and
created a hostile educational environment.
Initially, the Commissioner concludes that the Board was not arbitrary, capricious, or
unreasonable in determining that A.K. questioned N.V. about her choice of clothing and
commented on the toys that N.V. liked. Regarding the questioning, A.K. admitted that it
occurred when she was interviewed on the day of the bus incident, and petitioner admitted
that it occurred in her testimony. As the behavior was admitted, any alleged procedural flaws
in the investigation are irrelevant to the determination of whether the questioning constituted
HIB. It does not matter whether the investigation notes reflect every detail about the
questioning, what other students on the bus reported, or whether the bus driver or teacher
were interviewed. The Board was not arbitrary, capricious, or unreasonable in finding that the
questioning occurred when all parties agree that it did occur. The only necessary analysis is
7 See, e.g., Tr. Sept. 26, 2017, 20:7-11, 21:14-20, 22:22-23:6, 90:2-6, 199:13-200:12, 200:23-24, 252:6-25, 287:23-
24; Exhibit J-26.

9
whether the Board was arbitrary, capricious, or unreasonable in finding that the questioning
met the criteria to be HIB under the Act.
Regarding A.K.’s comments about toys, the ALJ accepted the testimony that N.V.
reported A.K’s comments about toys. Furthermore, the handwritten, contemporaneous
interview notes also reflect comments about toys, so the ALJ’s concerns about lack of note-
taking that arise regarding other parts of the HIB report do not apply to these comments.
Furthermore, the Commissioner finds that N.V.’s report is sufficient to conclude that the Board
was not arbitrary, capricious, or unreasonable in finding that the comments occurred, because
the Act does not require corroboration of a victim’s report. Accordingly, the only necessary
analysis is whether the Board was arbitrary, capricious, or unreasonable in finding that the
comments met the criteria to be HIB under the Act.
The Anti-Bullying Bill of Rights Act (the Act) 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 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

10
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.
Therefore, a finding of HIB requires three elements.8 First, the conduct must be reasonably
perceived as motivated by any actual or perceived enumerated characteristic or other
distinguishing characteristic and, second, the conduct must substantially disrupt or interfere
with the rights of other students or the orderly operation of the school. The third condition is
that one of the three criteria enumerated in the Act regarding the effect of the conduct must
also be satisfied. Wehbeh v. Bd. of Educ. of the Twp. of Verona, Essex County, Commissioner
Decision No. 51-20 (decided February 4, 2020).
Regarding the first element, in defining HIB as an action “that is reasonably perceived as
being motivated either by any actual or perceived characteristic . . .”, N.J.S.A. 18A:37-14
(emphasis added), the statute requires an analysis of how the actor’s motivation is perceived
and whether that perception is reasonable. It does not require an analysis of the actual
motivation of the actor. Wehbeh, supra. Certainly, evidence that the actor was motivated by a
distinguishing characteristic would meet the standard of this section of the Act, but evidence
that the actor was not so motivated does not end the analysis.
Petitioner argued that A.K. does not even know what “gender identity” means.
However, the Commissioner concludes that the distinguishing characteristic of gender identity
is present when a student who was previously known as male begins to wear clothing and use a
name typically associated with females. A.K.’s knowledge of gender identity as a concept, or
8 The statute also requires that the conduct take place on school property, at a school-sponsored function, on a school
bus, or off school grounds as provided for in N.J.S.A. 18A:37-15.3. The parties do not contest that this requirement
has been met.

11
lack thereof, does not change the fact that N.V. clearly had characteristics that distinguished
her from other children. Furthermore, the Act does not require that A.K. be aware of the
concept of gender identity or that she be specifically motivated by N.V.’s gender identity. As
explained above, the focus of the Act is on the reasonable perception of the aggressor’s
motivation, and not on the actual motivation. While the Commissioner acknowledges the
possibility that A.K.’s questions were motivated by curiosity rather than animus,9 the fact
remains that the questions could be reasonably perceived as being motivated by N.V.’s gender
identity, such that it was not arbitrary, capricious, or unreasonable for the Board to find that
this element of the Act had been met.
The ALJ improperly concluded that the superintendent had misstated the law when she
told the Board that A.K.’s age was not relevant to their decision. The ALJ acknowledged that
A.K.’s age was not a bar to a finding of HIB, but nonetheless indicated that it was incorrect to
say that her age had no bearing on the Board’s decision. Here, it is the ALJ who is incorrect, not
the superintendent. While a student’s age should be taken into consideration in determining
the consequences of an HIB finding – and it was here – age is irrelevant to whether an act of
HIB was committed. The Act does not establish an age range for students who may be HIB
victims or offenders. As Superintendent Moutis explained to the Board, and Board Member
Perrone recounted hearing, the focus of the Act is on the impact of the action. Therefore, there
was no misstatement of the law by the superintendent, and even if the Board completely
9 The Initial Decision correctly indicates, “There is no requirement that the Board find that A.K.’s conduct was
actually motivated by the perceived characteristic.” Initial Decision at 35. However, it continues to say that “the
age of A.K. was relevant to whether A.K.’s conduct was motivated by the perceived characteristic or because a
seven-year-old would be curious about why a student she knew as a boy was dressing like a girl.” Ibid. This
statement, which addresses actual motivation, is incorrect, and neither A.K.’s age nor her knowledge about gender
identity is relevant in determining whether HIB occurred.

12
disregarded A.K.’s age in making its decision, doing so did not make its decision arbitrary,
capricious, or unreasonable.
Regarding the second element – whether the conduct substantially disrupted or
interfered with A.K.’s rights – the principal and the ABS testified that A.K.’s questioning on the
bus made N.V. feel bad, and the ALJ accepted that testimony. Initial Decision at 22. The
Commissioner has previously upheld HIB determinations when the targeted student was upset,
embarrassed, or uncomfortable as a result of the conduct. See, e.g., G.H., supra (“Upset and
embarrassed children are not fully available for learning”); R.P., o/b/o minor child, A.P. v. Bd. of
Educ. of the Twp. of Hamilton, Atlantic Cty., EDU 09436-17 (Initial Decision Feb. 13, 2018),
adopted Commissioner Decision No. 100-18 (Mar. 29, 2018); M.S. and N.S., o/b/o J.S. v. Bd. of
Educ. of the Twp. of Hainesport, Burlington Cty., and J.M. and D.M., o/b/o J.M., EDU 08878
(Initial Decision Mar. 28, 2019), adopted Commissioner Decision No. 155-19 (June 18, 2019).
The Commissioner concludes that it was not arbitrary, capricious, or unreasonable for the
Board to find that A.K.’s questioning and comments interfered with N.V.’s rights because they
made her feel bad.10
Regarding the third element, an act of HIB is one that “a reasonable person should
know, under the circumstances, will have the effect of physically or emotionally harming a
10 The Commissioner also notes that N.V.’s mother reported that N.V. did not want to ride the bus because of the
incident with A.K. The ALJ found that the Board was arbitrary, capricious, or unreasonable in relying on this
information, because the Board did not know that there was another student who bothered N.V. on the bus and
could have been an additional source of N.V. not wanting to ride the bus. The ALJ noted that if the Board had that
information and still decided that A.K. was the source of the substantial impact, “that would have been fine.”
Initial Decision at 36. The Commissioner disagrees with the ALJ that the Board needed information about another
student in order for its determination to be upheld. The principal and ABS both testified that they spoke to N.V.
about the other student, and N.V. reported that she was not bothered by J.T. See, e.g., Tr. Sept. 26, 2017, 35:8-18,
85:13-14, 187:11-15, 275:11-13. The Commissioner finds that it was reasonable for the principal and ABS, in
preparing the HIB report for superintendent and the Board, to present the information they found to be credible
and not to present information that they found did not have an impact on N.V. Notwithstanding the
Commissioner’s conclusion on this issue, the fact that N.V. was clearly upset following the bus incident with A.K. –
about which there is no dispute – is sufficient to support the Board’s determination.

13
student,” “has the effect of insulting or demeaning a student,” or “creates a hostile educational
environment . . .”. N.J.S.A. 18A:37-14(a) (emphasis added). None of these criteria require the
actor to have actual knowledge of the effect that his actions will have, or to specifically intend
to bring about that effect. The first requires only that a reasonable person should know there
would be a harmful effect, not that the actor knows there would be such an effect. The second
two criteria address only the actual effect of the act, without any reference to what either the
actor or a reasonable person does or should know. Wehbeh, supra. As such, a board of
education can find that an individual committed an act of HIB even if the individual did not
intend to cause harm. For this reason, neither A.K.’s age nor her alleged lack of knowledge
about the concept of gender identity preclude a finding that the third element of the Act has
been met.
While only one of these criteria about the effect of the conduct need to be met, the
testimony demonstrates that at least two have been met. First, Ms. Perrone testified about the
effect of A.K.’s conduct on N.V., stating, “I believe that the comment that [N.V.] should not be
wearing a dress can be interpreted by a child as being critical or derogatory,”
Tr. October 17, 2017, 109:18-20, and, “the comments that were made to [N.V.] it appears made
[N.V.] feel challenged or that she was doing something wrong by identifying as a girl.” Ibid.
109:22-24. The Commissioner concludes that it was not arbitrary, capricious, or unreasonable
for the Board to find that questions about a student’s chosen clothing or comments about the
toys that she likes are insulting or demeaning. Second, the fact that N.V. was upset by A.K.’s
actions demonstrates that A.K. created a hostile educational environment. The Commissioner
disagrees with the ALJ that the fact that the relationship between A.K. and N.V. was friendly

14
following the incident obviates a finding of HIB. There is nothing in the Act that requires that a
hostile educational environment persist for a specified period of time.
Accordingly, the Board’s determination that A.K. committed an act of HIB is affirmed.
IT IS SO ORDERED. 11
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
11 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.
December 9, 2021
December 9, 2021