O.E., on behalf of minor child, A.E. V. BOARD OF EDUCATION OF THE BOROUGH OF WALLINGTON, BERGEN COUNTY, 12/7/07, (#478-07)

#478-07 (OAL Decision: http://lawlibrary.rutgers.edu/oal/html/initial/edu05790-07_1.html)
O.E. on behalf of minor child, A.E., 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE 	: 	DECISION
BOROUGH OF WALLINGTON,
BERGEN COUNTY, 	:
RESPONDENT. 	:
SYNOPSIS
Petitioner challenged his son’s indefinite suspension from regular educational classes after he
authored notes and drawings containing threats toward other students whom – he alleged – had
harassed and bullied him. A.E. has received home instruction since March of 2007, without benefit
of a school library, physical education classes, or school social activities. Respondent Board argued
that – pursuant to N.J.S.A. 18A:37-2 – A.E. posed a threat to others, based on an April 2007
psychiatric evaluation in which the word “minimal” was used in summarizing A.E.’s risk to himself
or others.
The ALJ found, inter alia, that: A.E. drew depictions of tombstones with students’ names on them
for the purpose of alarming said students; there was nothing in the record to indicate that A.E.
exhibited the behavior referenced in sections a, b, or d-j of N.J.S.A. 18A:37-2, and the herein
controversy centers around section c, which prescribes punishment for conduct that “constitutes
a continuing danger to the physical well-being of other pupils”; nothing in the record suggests that
A.E.’s conduct presents such a danger; and A.E. is remorseful for his actions. 	The ALJ concluded
that continuing the discipline imposed upon A.E. by the respondent into the new school year is
arbitrary and capricious, and ordered that A.E. be returned to regular classroom instruction.
Upon full and independent review of the record, the Commissioner adopted the Initial Decision as
the final decision in this matter, noting that: A.E. has no history of physical violence or overt
aggression; the physician who conducted his psychiatric evaluation recommended weekly personal
counseling sessions focusing on coping and problem-solving skills, as well as weekly in-school
counseling, rather than medications or higher level psychiatric intervention; and a rational basis for
continuing discipline does not exist. 	The Commissioner further reminded the respondent of its
obligations 	pursuant 	to 	N.J.S.A. 	18A:37-15 	and 	N.J.A.C. 	6A:16-7.9 	to 	provide 	a 	school
environment free from intimidation, harassment and bullying.
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.
December 7, 2007

OAL DKT. NO. EDU 5790-07
AGENCY DKT. NO. 139-5/07
O.E. on behalf of minor child, A.E., 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE 	: 	DECISION
BOROUGH OF WALLINGTON,
BERGEN COUNTY, 	:
RESPONDENT. 	:
Petitioner asks that his son be returned to a regular educational program in
respondent’s district. 	The record, including several exhibits submitted by the parties, the
Initial Decision and the parties’ exceptions have been reviewed. While the Administrative Law
Judge (ALJ) reported that a plenary hearing had been held in the Office of Administrative Law
(OAL), no transcript of same is before the Commissioner.
It is undisputed that petitioner’s son, A.E., is currently 14 years old and receiving
educational instruction at the eighth grade level. 	He was suspended from regular classes on or
about March 18, 2007, after he authored notes and drawings containing threats toward other
students. Since that date he has been given ten or more hours of academic instruction per week
by teachers at one of respondent’s facilities. 	He does not have access to the school library,
physical education classes or school social activities.
In support of its position that A.E. should not be returned to regular classes,
respondent offered as exhibits copies of several writings and drawings that were conveyed by
A.E. to other students, or confiscated by school staff. (Respondent’s Exhibit 1) The contents of
the writings variously include profanity, insults, religious slurs, and homophobic and racist
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remarks. One note articulates a declaration that the author is not afraid of the student to whom
the note was addressed. 	Another writing in R-1 is a list of nine names - entitled “People that
bother me!” – that A.E. gave his father, O.E., in preparation for a meeting between O.E. and the
school principal. (Respondent’s Exhibit 4 [R-4] at 2)
There are also copies of drawings in Respondent’s Exhibit 1. 	Of heightened
concern to respondent are sketches of six tombstones, each containing the name of a student and
the phrase “R.I.P.” 	Some of the tombstone drawings contain comments, such as “After World
War III,” “In a few days,” “Killed in World War III.” Another drawing depicts the stabbing of a
female, with the caption “Born to kill A----.”
After initial resistance, O.E. agreed to have his son evaluated by a psychiatrist –
Mona Ismail, M.D, of Comprehensive Behavioral Healthcare, Inc. 	Dr. Ismail’s report was
issued on April 30, 2007. (R-4) Although she was not called to testify at the OAL hearing, both
parties referred to the findings in Dr. Ismail’s report, and neither party objected to its admission
into evidence.
Criminal proceedings were instituted against A.E., resulting in an order dated
June 1, 2007, deferring the matter until December 1, 2007, at which time the charges would be
dismissed upon good behavior. (Petitioner’s Exhibit 1)
At the OAL hearing, A.E. admitted drawing the tombstone pictures and placing
them in the students’ lockers to upset them, but denied responsibility for some of the other
writings in R-1. 	(Initial Decision at 4) He testified that the students whose names were in the
tombstones had been harassing him - calling him “gay” and a “terrorist.” 	(Ibid) 	Frank
Cocchiola, respondent’s Superintendent of Schools, conceded on cross examination that A.E.
had been “bothered” by kids in the past. (Id. at 3)
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A.E. 	denied 	ever 	hitting 	or 	attacking 	anyone 	and, 	according 	to 	the 	ALJ,
respondent offered no credible evidence that A.E. had ever engaged in violent acts against any
student. 	Nor was there any evidence that A.E. 1) used profane or offensive language in class,
2) made racial or ethnic comments or 3) frequently disrupted class. (Id. at 5)
When 	asked 	at 	the 	hearing 	whether 	he 	was 	sorry 	for 	transmitting 	the
notes/drawings, A.E. said that he was. 	(Id. at 4-5) 	The ALJ consequently found A.E. to be
remorseful.
The ALJ correctly determined that petitioner has the burden to establish by a
preponderance of the credible evidence that respondent’s indefinite continuation of A.E.’s
suspension is arbitrary, capricious and unreasonable. (Id. at 5) Thus, the ALJ assessed the facts
adduced at the hearing by measuring them against N.J.S.A. 18A:37-2, upon which respondent
relied in suspending A.E. N.J.S.A. 18A:37-2 provides:
Any pupil who is guilty of continued and willful disobedience, or
of open defiance of the authority of any teacher or person having
authority over him, or of the habitual use of profanity or of
obscene language, or who shall cut, deface or otherwise injure any
school property, shall be liable to punishment and to suspension or
expulsion from school.
Conduct which shall constitute good cause for suspension or
expulsion of a pupil guilty of such conduct shall include, but not be
limited to, any of the following:
a. Continued and willful disobedience;
b. Open defiance of the authority of any teacher or person, having
authority over him;
c. Conduct of such character as to constitute a continuing danger to
the physical well-being of other pupils;
d. Physical assault upon another pupil;
e. Taking, or attempting to take, personal property or money from
another pupil, or from his presence, by means of force or fear;
f. Willfully causing, or attempting to cause, substantial damage to
school property;
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g. Participation in an unauthorized occupancy by any group of
pupils or others of any part of any school or other building owned
by any school district, and failure to leave such school or other
facility promptly after having been directed to do so by the
principal or other person then in charge of such building or facility;
h. Incitement which is intended to and does result in unauthorized
occupation by any group of pupils or others of any part of a school
or other facility owned by any school district;
i. Incitement which is intended to and does result in truancy by
other pupils; and
j. Knowing possession or knowing consumption without legal
authority 	of 	alcoholic 	beverages 	or 	controlled 	dangerous
substances on school premises, or being under the influence of
intoxicating liquor or controlled dangerous substances while on
school premises.
As stated above, the ALJ determined that there was nothing in the record
to indicate that A.E. had exhibited the behavior referenced in sections a, b, or d-j of
N.J.S.A. 18A:37-2. 	Nor does respondent argue otherwise. 	The controversy centers around
section 	c 	of 	N.J.S.A. 	18A:37-2, 	which 	prescribes 	punishment, 	including 	suspension 	and
expulsion, for “conduct of such character as to constitute a continuing danger to the physical
well-being of other pupils.”
In weighing the totality of the evidence, the ALJ concluded that A.E. does not
pose a continuing danger to the physical well-being of other pupils. He stated:
There can be no doubt that Board [sic] could reasonably find the
“tombstone” drawings as petitioner’s attempt to place fear or alarm
in the mind of each student whose name appeared in the drawing.
However, nothing in any of the testimony suggests that petitioner’s
conduct amounted to a “continuing danger to the physical well-
being of other pupils.”
Initial Decision at 6
Having determined that A.E.’s behavior did not violate N.J.S.A. 18A:37-2, the ALJ reasoned that
it would be arbitrary and capricious for respondent to continue to bar A.E. from regular
classroom instruction.
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Respondent’s Exceptions to the Initial Decision stress its duty to provide a safe
and secure environment for its school children. It contends that A.E.’s actions progressed from
racial and ethnic remarks, vulgar notes and disgusting actions, to threats of violence and physical
harm, Respondent’s Exceptions at 2, and perceives that this ‘progression’ can be regarded as a
continuing danger to the physical well-being of other pupils.
Respondent is not reassured by Dr. Ismail’s evaluation because it states in the
“Impression” section that “the chance of having overt physical violence or homicidal thoughts,
risk to others or self are minimal.” (R-4 at 4) Focusing on that sentence, respondent argues that
even a minimal chance of physical harm is unacceptable. (Respondent’s Exceptions at 2)
After careful review of the facts before her and the content of Dr. Ismail’s report,
the Commissioner concurs with the ALJ that a solid rational basis to support the further
suspension of A.E. from regular attendance at school is lacking. First, it is undisputed that A.E.
has no history of physical violence, overt aggression, cruelty to animals, destructive or suicidal
behavior, serious risk-taking, psychoses, affect disorders, hospitalization or significant medical
problems. Dr. Ismail reported that A.E. presented as cooperative and polite. His speech, affect,
perception, concentration, memory , attention span and thought processes were normal.
Second, the record contains evidence that A.E. was harassed from the onset of his
enrollment in respondent’s high school, and that each of the writings offered as exhibits was an
ill-conceived response to an incident of harassment by specific individuals. Both Dr. Ismail and
the ALJ noted that A.E. was remorseful for retaliating via the menacing notes and drawings.
Dr. Ismail concluded that A.E.’s appearance and mannerism’s may “render him a
target to ridicule and criticism.” 	(R-4 at 4) 	She observed that he “seems to have poor
mechanisms and poor responses to stressors such as bullying in school,” and he “tends to have
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difficulty tolerating the bullying and the harassment behavior and the means of retaliating to him
were by passive/aggressive means such as the drawings . . . .” (Ibid.)
Significantly, Dr. Ismail saw no need for medications or higher level psychiatric
interventions. 	She recommended weekly personal counseling for A.E. to teach coping and
problem-solving skills and provide support. 	She also recommended that A.E. receive weekly
in-school counseling to check how he is coping and behaving. 	Finally, Dr. Ismail wrote:
“The patient may follow up as an outpatient at this point since he is not presenting a risk to self
or to others.” (Ibid., emphasis added)
In light of the foregoing, the Commissioner adopts the Initial Decision’s order
that A.E. be returned to regular classroom instruction without delay. 	While A.E.’s conduct
warranted discipline, the Commissioner concludes that a rational basis for continuing the
discipline into the new school year does not exist – provided that A.E. does not repeat the
conduct which precipitated his suspensions.
Additionally, the Commissioner reminds respondent of its obligations pursuant to
N.J.S.A. 	18A:37-15 	and 	N.J.A.C. 	6A:16-7.9 	to 	provide 	a 	school 	environment 	free 	from
intimidation, harassment and bullying.
IT IS SO ORDERED.*
COMMISSIONER OF EDUCATION
Date of Decision: December 7, 2007
Date of Mailing: 	December 10, 2007
* This decision may be appealed to the State Board of Education pursuant to N.J.S.A. 18A:6-27 et seq. and
N.J.A.C. 6A:4-1.1 et seq.