A.M. and A.M., on behalf of minor child, B.M. v. Board of Education of the Somerset Hills School District, Somerset County, 5/23/25 (#270-25)

270-25
OAL Dkt. No. 08742-24
Agency Dkt. No. 180-6/24
New Jersey Commissioner of Education
Final Decision
A.M. and A.M., on behalf of minor child, B.M.,
Petitioners,
v.
Board of Education of the Somerset Hills School
District, Somerset 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.
Upon review, the Commissioner concludes that the Board’s decision that B.M. targeted
H.B. due to her distinguishing characteristic of autism was not arbitrary, capricious, or
unreasonable. In addition, the Commissioner concurs with the Administrative Law Judge (ALJ)
that petitioners did not establish that the Board acted in an arbitrary, capricious, or unreasonable
manner in determining that B.M. committed an HIB violation. The Commissioner further concurs
with the ALJ that although the Board did not issue an HIB report within the requisite number of
days under N.J.S.A. 18A:37-15(b)(6), petitioners were not prejudiced as they were advised of the
allegation and investigation, provided with the redacted HIB report, and had a full opportunity
to appear before the Board whilst represented by counsel. Lastly, the Commissioner agrees with

2
ALJ that the Board did not violate B.M.’s First Amendment rights by determining that he
committed HIB.
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
COMMISSIONER OF EDUCATION
Date of Decision: 	May 23, 2025
Date of Mailing: 	May 27, 2025
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 08742-24
AGENCY DKT. NO. 180-6/24
A.M. AND A.M. ON BEHALF OF MINOR
CHILD B.M.,
Petitioners,
v.
SOMERSET HILLS PUBLIC SCHOOL
DISTRICT BOARD OF EDUCATION,
Respondent.
_____________________________________
Julie Warshaw, Esq., for petitioners (Warshaw Law Firm, LLC, attorneys)
Eric L. Harrison, Esq., for respondent (Methfessel & Werbel, PC, attorneys)
Record Closed: February 7, 2025 Decided: March 6, 2025
BEFORE JUDITH LIEBERMAN, ALJ:
STATEMENT OF THE CASE
Petitioners A.M. and A.M., parents of minor son B.M., appeal from a determination
made by respondent Board of Education of the Somerset Hills School District (“District”
or “Board”) that B.M. committed an act of harassment, intimidation, or bullying (HIB) in

OAL DKT. NO. EDU 08742-24
2
violation of the Anti-Bullying Bill of Rights Act (“Act”), N.J.S.A. 18A:37-13.1 to -32. The
parties filed cross-motions for summary decision.
PROCEDURAL HISTORY
The Department of Education transmitted the matter to the Office of Administrative
Law, where on June 26, 2024, it was filed as a contested case. N.J.S.A. 52:14B-1 to -15;
N.J.S.A. 52:14F-1 to -13. The parties sought leave to file cross-motions for summary
decision. All briefs were filed by November 12, 2024. On January 24, 2024, the record
was reopened to request additional information from both parties. That information was
received on February 7, 2025, and the record for the motions closed that day.
FINDINGS OF FACTS
The following facts, taken from the parties’ submissions, including certifications
and supporting documents, are undisputed.
1. Respondent adopted Board Policy 5512, “Harassment, Intimidation, and
Bullying.” Certification of Dr. Jaime Walker, director of guidance and HIB
coordinator, (“Walker Cert.”), R-C. It requires, among other things, that an
investigation into an allegation of HIB “shall be initiated by the Principal or the
Principal’s designee within one school day of the verbal report of the incident. The
investigation shall be conducted by the school Anti-Bullying Specialist in
coordination with the Principal. The Principal may appoint additional personnel
who are not school Anti-Bullying Specialists to assist with the investigation.” Id. at
25. Also, the “investigation shall be completed and the written findings submitted
to the Principal as soon as possible, but not later than ten school days from the
date of the written report of the incident. Should information regarding the reported
incident and the investigation be received after the end of the ten-day period, the
school Anti-Bullying Specialist shall amend the original report of the results of the
investigation to ensure there is an accurate and current record of the facts and
activities concerning the reported incident.” Ibid.

OAL DKT. NO. EDU 08742-24
3
2. B.M. is currently a third-grade student at Bedwell Elementary School
(“Bedwell”). He was diagnosed with attention-deficit/hyperactivity disorder (ADHD)
combined type, anxiety, and oppositional defiant disorder. P-14. He has had a
504 Plan since the end of first grade, which focuses on his concentration in the
classroom. Certification of A.M. (“A.M. Cert.”) at ¶ 2.
3. The events at issue here occurred while B.M. was in second grade.
4. On or about February 1, 2024, Bedwell principal Jazmyn Allen was informed
by teacher Ms. Falzarano of a series of negative behaviors occurring in her
second-grade classroom, 2-F. Walker Cert. at ¶ 5.
5. On February 5, 2024, Ms. Dooley, a school counselor/anti-bullying
specialist, received an email from the parents (“Parents 1”) of a child who was in
the 2-F class. They wrote that their child was anxious about school and cited
incidents involving B.M. They cited examples of B.M.’s behavior that was
troublesome to their child: B.M. told the child that he was “the second worst in the
class after [H.]”; B.M. told the child that he was part of the “[H.] Hit Club”; B.M. and
another student “made him hit H.B. so he would get in trouble”; and B.M. kicked
their child. R-D. The parents wrote that the interactions have “directly affect[ed]
[their child’s] education.” Ibid.
6. Another parent (“Parent 2”) wrote to Principal Allen, Dooley, the 2-F teacher,
and another staff member about their child’s anxiety. They did not reference B.M.
R-E.
7. On February 7, 2024, Principal Allen met with a third parent (“Parent 3”),
who “advised of the negative behaviors exhibited by B.M. within the classroom and
at recess, which targeted H.B. Upon information and belief, the behaviors were
perceived as being motivated by H.B.’s disabling condition.” Walker Cert. at ¶ 8.

OAL DKT. NO. EDU 08742-24
4
8. An HIB investigation was initiated the following day, February 8, 2024.
Schools were closed on February 13, 16, and 19, 2024, and students were
dismissed early on February 15, 2024. Id. at ¶¶ 9–10; R-F.
9. H.B. was interviewed and reported that B.M. “bullies” her, that he “is mean
a lot of the time,” and that he “does inappropriate stuff[.]” He wrote “I hate you” on
an apology note that H.B. gave him. H.B. said that B.M. never hit or pushed her.
R-M at 5.1
10. B.M. was interviewed2 and stated that he is in the “hating [H.B.] club,” which
he thought was started by his good friend [R.] because “kids didn’t like [H.B.]. She
keeps asking if they want to play over and over again and she annoys them
because they don’t want to play with her.” B.M. “wants to be part of the club
because [H.B. is] annoying.” Another student, [B.,] is also a member of the club.
B.M. stated that he pushed H.B. two months prior while they were playing
basketball and [H.B.] was throwing footballs. [H.B.] was upset and said, “Hey don’t
do that.” Id. at 6.
11. Statements were provided by four additional students.3 Student 1 reported
that B.M. tried to get H.B. to “play a game where you fight people. [B.M.] pushed
[H.B.] into the mulch. She was sometimes crying and sometimes mad.” Id. at 7.
She gets angry when he calls her a certain name; he laughs at her when she is
angry. He “says bad words to [H.B.] like ‘shut up’” and says, “you’re either on my
team or [H.’s] team.” Ibid. Students are afraid to “take [H.’s] side.” Ibid. Student
1 is friends with H.B., which B.M. does not like. Student 1 fears that B.M. may “do
1 An unredacted version of H.B.’s statement is found at R-G.
2 Petitioners assert in their brief that “B.M. has stated that he did not give a statement, and his parents
were not advised otherwise.” Pet’rs’ Br. at 20. However, respondent produced an unredacted report of
B.M.’s interview, for in camera review. Although petitioners refer to the redacted statement as an “alleged
statement” and claim that the report is vague, apparently due to the redactions, there is no evidence in the
record to indicate or suggest that the unredacted report is not authentic. His redacted statement is found
at R-M; his unredacted statement is found at R-H.
3 In order to maintain student confidentiality, respondent referred to the students as Students 1, 2, 3, and
4. Redacted versions of their statements are found at R-M. Unredacted versions are found at R-I through
R-L.

OAL DKT. NO. EDU 08742-24
5
something to him” and has tried to punch him. However, B.M. is nice to Student 1
when they are not around H.B. Ibid. H.B. willingly goes with B.M. when he tells
her to, because she believes he is trying to be nice; however, he is then mean to
her.
12. Student 2 reported that B.M. asked them to join the “[H.B.] club.” Id. at 8.
B.M. has teased Student 2, called them “weird,” and “called [them] the second
worse kid in the class[.]” Ibid. This is why Student 2 “doesn’t want to come to
school.” Ibid. Student 2 is afraid to refuse to join the H.B. club because they do
not want B.M. to be mean to them. B.M. is also mean to other students. Student
2 refused to push H.B. when B.M. told them to do so.
13. Student 3 reported that B.M. has tried to fight them; he physically twisted
their arm and punched them. B.M. was mean to H.B., but he was also “mean to
everyone.” Id. at 9. Last year he tried “to fight [H.B.].” Ibid. Student 3 was aware
of the “[H.B.] club” and that the members were annoyed by H.B. and said mean
things about her. Student 3 did not know if B.M. was part of the club. Ibid. Student
3 and H.B. were friends but Student 3 said H.B. was sometimes “a little annoying”
or “mean to people.” Ibid. H.B. told Student 3 to stop when Student 3 tried to help
her.
14. Student 4 is friends with B.M. B.M. asked Student 4 to join the “[H.B.] Hitting
Club.” Id. at 10. B.M. said that Student 1 “asked B.M. to be in charge of the club
or he will kick him in the shin 100 times.” Ibid. As of the date of the interview, B.M.
and Student 1 were “still talking about the club” and they said “[H.] is the worst.”
Ibid. Student 4 refused to hit H.B. when Student 1 asked them to. B.M. has “said
bad words” to H.B., including that he hates her. Ibid. Student 1 also told H.B. that
he hates her. B.M. tried to hit Student 3.
15. The investigation concluded on or about February 22, 2024,4 and found that
B.M. “knowingly engaged in racist, homophobic, or other stereotyping behavior
4 The investigation report lists February 27, 2024, as “Date closed.” R-M at 1.

OAL DKT. NO. EDU 08742-24
6
with the specific objective of hurting, intimidating or bullying.” R-M at 1. The
behavior was classified as “verbal, physical, emotional.” Ibid. The following
actions were reported with respect to B.M.: “Student Counseling” and “staff were
cautioned to be alert to any further interactions and partnering with certain
students; the student will be attending counseling to develop and sustain
friendships; the homeroom teacher and counselor will review the student’s safety
plan that was developed last school year; and the 504 will be re-visited to enlist
other accommodations to support the student, reflective conversation with
Assistant Principal.” Id. at 2.
16. The superintendent endorsed the results of the investigation on or about
February 26, 2024. Walker Cert. at ¶ 14.
17. The Board was informed of the matter during its March 13, 2024, meeting.
Ibid.; P-12.
18. On March 15, 2024, assistant superintendent of schools Colleen Butler,
Ed.D., sent a letter to petitioners in which she informed them that the HIB
investigation was complete and that the results were reported to the
superintendent. She wrote:
Pursuant to the requirements of Board Policy and State law,
when the investigation of an HIB allegation is commenced, the
Superintendent must report the findings to the Board of
Education and then to the alleged victims and offenders.
Specifically, the law requires that the alleged victims and
offenders be informed of the nature of the investigation,
whether the district found evidence of HIB, and whether
discipline was imposed or services provided to address the
incident.
The anti-bullying specialist at Bedwell Elementary School
completed the investigation. As part of the investigation, your
child was interviewed as an alleged offender. Other alleged
victims, offenders or witnesses were also interviewed. The
Board of Education was informed of the results of the
investigation at the Board of Education meeting held on March
13, 2024.

OAL DKT. NO. EDU 08742-24
7
It has been determined that there was sufficient evidence that
your child committed a violation of the HIB statute.
. . . .
You have the right to request a hearing before the Board of
Education regarding this incident, but you are not required to
do so. If you [sic] like to request a hearing, please contact
me directly.
[P-12.]
Assistant Superintendent Butler also advised petitioners of the “services or
discipline” that were to be provided to B.M. as a result of the investigation. Ibid.
19. On March 19, 2024, respondent provided petitioners the HIB report,
including the witness statements. The personal identifiers of the students were
redacted. November 12, 2024, Certification of Julie Warshaw, Esq. (“Warshaw
Cert. II”) at ¶ 5; Exh. C.
20. A Board hearing was conducted, with petitioners and their counsel present,
on April 17, 2024. Pet’rs’ Br. at 9; P-1.
21. On April 26, 2024, Dr. Butler advised petitioners of the Board’s
determination after the April 17, 2024, hearing:
After careful consideration of the arguments that were raised
by you and your attorney during the HIB appeal hearing, the
Board decided to affirm the determination that the allegations
that were asserted against your child constitute HIB, as your
child’s actions were reasonably perceived to be motivated by
an actual, perceived or other distinguishing characteristic,
resulted in a substantial disruption or interference with the
orderly operation of the school and/or the rights of a student
and had the effect of insulting or demeaning a student, among
other things. As a result, at its meeting on April 24, 2024, the
Board passed a resolution affirming the determination.
[P-1.]

OAL DKT. NO. EDU 08742-24
8
22. The District conducted educational, psychological, and social history
evaluations. P-15. An initial 504 eligibility determination meeting was conducted
on June 14, 2023, and a plan was developed. A.M. Cert. at ¶ 46. After a June 4,
2024, child study team meeting, the District found B.M. eligible for special
education services under the classification of “other health impaired,” given
assessments that concluded that he had behavioral and emotional disorders with
a history of ADHD. P-14; P-15.
Petitioners assert the following with respect to the HIB investigation:
1. After the HIB charge against B.M., the school “refused to provide any
information to [petitioners] regarding the charges except that it was reported by
staff, and it was not physical.” A.M. Cert. at ¶ 3. B.M. “had no idea what he was
accused of doing as he did not recall any alleged incident.” Id. at ¶ 24.
2. Petitioners dispute respondent’s assertion that Principal Allen or any other
school personnel communicated with them about the reports made by other
parents about B.M.’s behavior toward H.B. Pet’rs’ Opp’n Br. at 6, ¶ 4.
3. A.M. learned, from speaking with unidentified parents of other students in
the class, “that the way the matter was investigated was discriminatory and the
reliability of the results suspect.” A.M. Cert. at ¶ 32. She referenced the following
information she was told:
a. B.M. and the alleged victim, “H.,” were removed from the classroom
when the investigator arrived there.
b. All of the other students were asked to write a report.
c. Only four witness statements were included in the report, “as only
four children were called for ‘private’ conversations.”

OAL DKT. NO. EDU 08742-24
9
d. Petitioners were not provided the other students’ reports.
e. The parents with whom A.M. spoke had not been contacted by the
school about their children’s role in the investigation. However, A.M. was
told that they would be contacted.
f. B.M. was singled out even though there were widespread problems
in the class.
g. “[T]here is a girl in the class who is defiant and rude and considered
annoying by the other children” and no tools were offered to the children to
help them get along. One parent told A.M. that her daughter repeatedly
complained about the female student.
h. B.M. told petitioners that three other children were involved in the
“Hate Club” but were not held accountable, even though they were called
to the school counselor’s office.
A.M. Cert. at ¶¶ 32–42.
Petitioners asserted the following undisputed facts concerning B.M.:
1. Before B.M. was in second grade, school personnel advised petitioners that
he “had difficulty getting along with other children and often bothered other children
and got into their personal space.” A.M. Cert. at ¶ 7; P-3. While B.M. was in first
grade, his teacher reported that his behavior was regressing and that his
behavioral problems affected other students. P-3 to P-5.
2. Petitioners requested assistance from the school to teach B.M. coping and
social skills and asked for more supervision during lunch and recess. A.M. Cert.
at ¶ 6; P-3. They detailed their requests in 2022 for evaluations for a 504 Plan and
supports, in response to B.M.’s medical diagnoses and teacher reports about his
behavior. A.M. Cert. at ¶¶ 7–8, 11; P-3 at 3.

OAL DKT. NO. EDU 08742-24
10
3. Petitioners also detailed their ongoing discussion with school personnel
about recommendations made by a board-certified behavior analyst, results of
tests that showed concern about aggression, hyperactivity, conduct, adaptability,
and social skills, as well as an assessment of being “at risk” for emotional
disturbance. They also relayed insights offered by their family counselor. P-3 at
1–2.
4. They also described the responses of school personnel to their requests,
which included descriptions of how B.M. had “some difficulty with social behaviors.
He constantly bothered the other children by grabbing them and being too close to
them. . . . When the children ask to be left alone [B.M.] doesn’t listen to their
request and seems to bother them even more.” A.M. Cert. at ¶¶ 7, 10, 13, 14; P-
3 at 3–4.
5. In February 2022 the school counselor scheduled an “I&RS/504” meeting
for B.M., and petitioners asked if some accommodations could be “considered and
tried” prior to the meeting. P-3 at 3.
6. Petitioners further described their discussions in 2022 with B.M.’s principal
about B.M.’s episodes of aggression toward classmates and the lack of support
they received from the school until he punched a girl in the face, stabbed a child
with a pencil, and bullied an older child. Id. at 6.
7. Petitioners continued to communicate their concerns about B.M.’s behavior
through the end of kindergarten and into first grade and requested assistance from
the school “to ensure his inappropriate and unkind behaviors are discouraged and
stopped in the school environment and he is directed to make better choices.” Id.
at 5–7.
8. On March 14, 2023, B.M.’s teacher completed a Child Behavior Checklist
Report. She noted that he has more problems than typically experienced by

OAL DKT. NO. EDU 08742-24
11
children in his age group, “particularly problems in social relationships, attention
problems, rule-breaking behavior and problems of an aggressive nature.” P-7.
9. In March 2023, medical professionals requested accommodations for B.M.,
including a behavior management program and functional behavior analysis, and
evaluation by the child study team to determine if he qualifies for an individualized
education program. P-8; P-9. A school psychologist who treated B.M. wrote that
he had oppositional defiant disorder and attention deficit hyperactivity disorder.
She advised that he required a behavioral specialist and close adult supervision,
particularly in “loosely supervised school settings like recess, playground and
lunch, etc.” P-10.
10. After a March 20, 2023, meeting, the District determined that an evaluation
to determine if B.M. had a disability was not warranted because it “was determined
that [he] is not suspected of having a disability which adversely affects [his]
educational performance, and is not in need of special education and related
services, or speech-language services only.” P-11.
Parties’ Arguments
Respondent asserts that the undisputed evidence shows that it conducted an
appropriate HIB investigation that found that B.M. engaged in behavior that targeted
fellow student H.B. and that this conduct constituted an HIB violation. Because there is
no evidence that it acted in bad faith or disregarded the circumstances, there is no basis
for reversing its decision. It also contends that petitioners raise irrelevant arguments, in
particular that B.M.’s misconduct is attributable to the District’s failure to teach him coping
and social skills and an alleged lack of supervision during unstructured activities.
Respondent argues that the petitioners inappropriately seek to challenge the adequacy
of B.M.’s 504 Plan and the District’s alleged failure to timely evaluate and classify B.M.
pursuant to the Individuals with Disabilities Education Act (IDEA).
Petitioners argue that respondent’s decision was arbitrary, capricious, and
unreasonable, in that it was prejudicial, procedurally deficient, and subjective; it failed to

OAL DKT. NO. EDU 08742-24
12
comply with the required elements of the Act and its regulations; and it lacked evidentiary
support. They also assert that a statement attributed to B.M., and which was considered
by the Board in finding that B.M. committed an act of HIB, was protected by the First
Amendment.
LEGAL DISCUSSION
Under N.J.A.C. 1:1-12.5(a), a party may move for summary decision upon all or
any of the substantive issues in a contested case prior to a hearing. A motion for
summary decision shall be granted where the papers and discovery together with
affidavits 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. N.J.A.C. 1:1-12.5(b). When a
motion for summary decision is made and supported, an adverse party, in order to prevail,
must by responding affidavit set forth specific facts showing that there is a genuine issue
that can only be determined in an evidentiary proceeding. Ibid.
An issue is “genuine” if, considering the burden of persuasion at trial, the evidence
submitted on the motion and all legitimate inferences could sustain a decision in favor of
the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 530 (1995). A
fact is “material” if it will “affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Significantly, “bare conclusions
in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious
application for summary judgment.” U.S. Pipe & Foundry Co. v. American Arb. Ass’n, 67
N.J. Super. 384, 399−400 (App. Div. 1961) (citations omitted).
Here, both parties stated that there were no genuine issues of material fact and,
thus, that the case is ripe for summary decision. Neither party contested material facts
offered by the other party concerning the substance of the underlying HIB charge. While
petitioners averred that B.M. did not recall having made a statement about the incident at
issue here, they did not supply evidence supporting his assertion and, moreover, there is
undisputed documentary evidence of his statement. To the extent that petitioners
referenced statements by other parents, those statements are hearsay and are not
documented by admissible evidence. Otherwise, to the extent that petitioners seem to

OAL DKT. NO. EDU 08742-24
13
challenge other of respondent’s facts as they relate to the underlying charge, they actually
do so in the form of legal argument and conclusion that is based on those facts. To the
extent that petitioners argue that the HIB determination should be reversed due to
procedural violations, the material facts concerning the manner in which the investigation
was conducted are not in dispute. In sum, the facts that are material to the issues
presented by the cross-motions are not in dispute. For these reasons, I CONCLUDE that
summary decision is appropriate.
The issue presented is whether the Board’s finding that B.M. committed an act of
HIB was arbitrary, capricious, or unreasonable in light of the information that the Board
possessed when it made its determination. The Act defines HIB as follows:
any 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 [N.J.S.A. 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
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 (emphasis added).]

OAL DKT. NO. EDU 08742-24
14
Each school district must adopt a policy that prohibits HIB and provides for a
prompt response to any alleged HIB incident. N.J.S.A. 18A:37-15. Once an alleged HIB
incident is reported to the school principal, the principal must initiate an investigation
within one school day of the report. N.J.S.A. 18A:37-15(b)(6)(a). The investigation shall
be conducted by a school anti-bullying specialist and shall take no longer than ten school
days to be completed. Ibid. The results of the investigation shall then be quickly reported
to the superintendent of schools, who may take certain remedial action. N.J.S.A. 18A:37-
15(b)(6)(b). Remedial action shall take into account the “nature of the behavior; the
nature of the student’s disability, if any, and to the extent relevant; the developmental age
of the student; and the student’s history of problem behaviors and performance.” N.J.A.C.
6A:16-7.7(a)(2)(v). Remedial action may include a “behavioral assessment or evaluation,
including, but not limited to, a referral to the child study team, as appropriate” and
“[s]upportive interventions and referral services[.]” Ibid.
The results shall be reported to the board of education “no later than the date of
the board of education meeting next following the completion of the investigation, along
with information on any services provided, training established, discipline imposed, or
other action taken or recommended by the superintendent.” N.J.S.A. 18A:37-15(b)(6)(c).
The parents of the students involved in any alleged HIB incident are entitled to
receive information about the nature of the investigation and the result of the investigation.
N.J.S.A. 18A:37-15(b)(6)(d) details school districts’ obligations in this regard:
[P]arents or guardians of the students who are parties to the
investigation shall be entitled to receive information about the
investigation, in accordance with federal and State law and
regulation, including the nature of the investigation, whether
the district found evidence of harassment, intimidation, or
bullying, or whether discipline was imposed or services
provided to address the incident of harassment, intimidation,
or bullying. This information shall be provided in writing within
5 school days after the results of the investigation are reported
to the board. A parent or guardian may request a hearing
before the board after receiving the information, and the
hearing shall be held within 10 days of the request. The board
shall meet in executive session for the hearing to protect the
confidentiality of the students. At the hearing the board may

OAL DKT. NO. EDU 08742-24
15
hear from the school anti-bullying specialist about the
incident, recommendations for discipline or services, and any
programs instituted to reduce such incidents[.]
The board must issue a decision at the first meeting after its receipt of the
investigation report. N.J.S.A. 18A:37-15(b)(6)(e). The board may affirm, reject, or modify
the superintendent’s decision. Ibid. The board’s decision may be appealed to the
Commissioner of Education. Ibid.
The Commissioner of Education will not overturn the decision of a local board in
the absence of a finding that the action below was arbitrary, capricious, or unreasonable.
T.B.M. v. Moorestown Bd. of Educ., EDU 2780-07, Initial Decision (February 6, 2008)
(citing Thomas v. Morris Twp. Bd. of Educ., 89 N.J. Super. 327, 332 (App. Div. 1965),
aff’d, 46 N.J. 581 (1966)), adopted, Comm’r (April 7, 2008),
https://njlaw.rutgers.edu/collections/oal/.5
In determining whether agency action is arbitrary, capricious,
or unreasonable, a reviewing court must examine:
(1) whether the agency’s action violates express
or implied legislative policies, that is, did the
agency follow the law; (2) whether the record
contains substantial evidence to support the
findings on which the agency based its action;
and (3) whether in applying the legislative
policies to the facts, the agency clearly erred in
reaching a conclusion that could not reasonably
have been made on a showing of the relevant
factors.
[In re Stallworth, 208 N.J. 182, 194 (2011) (citation omitted).]
Thus, the Commissioner will not substitute his judgment for that of the board of
education, whose exercise of its discretion may not be disturbed unless shown to be
“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). “Where there is room
5 This decision and other administrative and unpublished court decisions are not binding. They are
referenced because they provide relevant guidance.

OAL DKT. NO. EDU 08742-24
16
for two opinions, action is not arbitrary or capricious when exercised honestly and upon
due consideration, even though it may be believed that an erroneous conclusion has been
reached.” Bayshore Sewerage Co. v. Dep’t of Envt’l Prot., 122 N.J. Super. 184, 199–200
(Ch. Div. 1973), aff’d, 131 N.J. Super. 37 (App. Div. 1974).
The Act applies to students with disabilities even if the disabilities may affect their
actions and impact their ability to appreciate the impact of his actions on others.6 In E.H.
and B.H. v. Board of Education of Jefferson, Morris County, 2024 N.J. AGEN LEXIS 405
(April 22, 2024), adopted, 2024 N.J. AGEN LEXIS 383 (May 30, 2024), the student who
was found to have engaged in bullying in violation of the Act suffered from ADHD, central
auditory processing disorder, autism, sensory processing disorder, emotional disorder,
and disruptive mood dysregulation disorder. His parents argued that, given his
disabilities, he did not know that his behavior could harm the other student, and he could
not form the necessary intent to support a violation of the Act. The administrative law
judge (ALJ) found, and the Commissioner agreed, that, “[w]hile the Board accepts that
[the student] did not fully appreciate his actions or intend to harm the victim, [his]
disabilities do not excuse his inappropriate actions. Every student is bound by the
District’s HIB policy, and the District is required to investigate HIB complaints and enforce
its HIB policies. N.J.S.A. 18A:37-15(b)(6).” 2024 N.J. AGEN LEXIS 405 at *12. The ALJ
thus concluded, “Although petitioners feel the school, aware of [the student’s] struggles,
could have done more to help [him] avoid such behavior, that does not change what [he]
did, even if [his] actions were careless.” Ibid. Thus, “the only issue [to be considered] is
whether the Board’s HIB determination should stand.” Id. at *4; see also N.J.A.C. 6A:16-
7.7 (appropriate remedial action after a finding of HIB shall take into account the nature
of the student’s disability, if any). Therefore, whether respondent failed to adequately
address B.M.’s needs as a student with disabilities is not to be addressed here and cannot
form a basis for a grant of summary decision to petitioners.7
6 Petitioners argue that the District violated B.M.’s rights as a student with disabilities in that it knew he had
a 504 Plan; refused to evaluate him for special education and related services; and did not conduct a
disciplinary hearing or manifestation determination pursuant to the IDEA, 20 U.S.C. § 1415(k). Pet’rs’ Br.
at 34–35.
7 Petitioners may, of course, pursue a separate action under the IDEA.

OAL DKT. NO. EDU 08742-24
17
As stated above, the Act establishes three elements that must be satisfied to find
that a student committed an act of HIB. The first is whether the action is reasonably
perceived as being motivated either by any actual or perceived characteristic. This
“requires an analysis of how the actor’s motivation is perceived and whether that
perception is reasonable.” Wehbeh v. Bd. of Educ. of Verona, Essex Cnty., Comm’r
Decision No. 51-20 at *5 (February 4, 2020), https://www.nj.gov/education/legal/. This
does not require that the victim correctly assess the actor’s motivation, “as such a
requirement would convert the analysis from one about reasonably perceived motivation
to one about actual motivation and would inappropriately place the burden on the alleged
victim to divine the intent of the actor.” Id. at *5, n.3.
“The statute has not limited ‘distinguishing characteristic’ to those specifically
enumerated[.]” K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 351 (App. Div.
2011).
By its plain terms, the Legislature made clear that courts and
school districts should not limit the scope of the statute to the
more classic protected characteristics such as race or
religion, and they intended instead that the statute apply
whenever the harassment at issue was motivated by any
distinguishing characteristic of the targeted student. Instead
of providing a longer list, the Legislature in the [Act]
intentionally included a very open-ended phrase, “any other
distinguishing characteristic,” to signal that the Act would
apply to a broad, unlimited range of distinguishing
characteristics, so long as the distinguishing characteristic
motivated the bully to harass the targeted student.
[R.A. on behalf of minor child, B.A., v. Bd. of Educ. of
Hamilton, Mercer Cnty., EDU 10485-15, Initial Decision (May
12, 2016), adopted, Comm’r (June 22, 2016),
https://njlaw.rutgers.edu/collections/oal/.]
For example, in J.M.C. ex rel A.C. v. Board of Education of East Brunswick, EDU
04144-12, Initial Decision (November 27, 2012), adopted, Comm’r (January 9, 2013),
https://njlaw.rutgers.edu/collections/oal/, the Commissioner found that a single incident in
which a male student was demeaned by a statement that he “danced like a girl” was a
violation of the Act because the bullying was based on the distinguishing characteristic of

OAL DKT. NO. EDU 08742-24
18
the perception of the targeted student’s dancing. In C.C. ex rel S.C. v. Board of Education
of Jefferson, EDU 10872-14, Initial Decision (April 6, 2015),
https://njlaw.rutgers.edu/collections/oal/, adopted, Comm’r Decision No. 153-15 (May 12,
2015), https://www.nj.gov/education/legal/, the Commissioner found that a perception
that the targeted student was not a good athlete was sufficient to trigger the protection of
the Act. The Commissioner noted that “the HIB statute is intended to drive home the
principle that cruel words will not be tolerated in a school environment.” Similarly, in
W.C.L. & A.L. ex rel L.L. v. Board of Education of Tenafly, EDU 03223-12, Initial Decision
(November 26, 2012), adopted, Comm’r (January 10, 2013),
https://njlaw.rutgers.edu/collections/oal/, the Commissioner held that even a single and
true comment by a student that the targeted student had dyed her hair because she had
head lice violated the statute.
When the Department amended its HIB regulations, it added the requirement that
district policies include a statement that “bullying is unwanted, aggressive behavior that
may involve a real or perceived power imbalance.” N.J.A.C. 6A:16-7.7(a)(2)(iii). The
Commissioner has addressed the intent of this amendment, writing that it is “to assist
school officials in identifying HIB within the context and relative positions of the alleged
aggressor and target, rather than focusing solely on the real or perceived characteristics.”
Klapach v. Bd. of Educ. of Fort Lee, Bergen Cnty., 2021 N.J. AGEN LEXIS 89 (April 6,
2021) (quoting 50 N.J.R. 155(b) (2018)). However, an analysis of the power dynamic
alone “cannot be the sole basis for a finding of HIB.” Ibid. The “distinguishing
characteristic” element must be satisfied.
Furthermore, there must be a showing of more than a mere dispute between
students, even if unpleasant words or conduct is used. “[H]armful or demeaning conduct
motivated only by another reason, for example, a dispute about relationships or personal
belongings, or aggressive conduct without identifiable motivation, does not come within
the statutory definition of bullying.” K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super.
at 351; see also L.B.T. ex rel K.T. v. Bd. of Educ. of the Freehold Reg’l Sch. Dist., EDU
07894-12, Initial Decision (January 24, 2013), adopted, Comm’r (March 7, 2013),
https://njlaw.rutgers.edu/collections/oal/ (a personal breakdown in the relationship
between two students is a mutual non-power-based conflict that is not about a

OAL DKT. NO. EDU 08742-24
19
characteristic of the targeted student); L.P. v. Bd. of Educ., 2018 N.J. Super. Unpub.
LEXIS 1928 (App. Div. August 15, 2018) (alleged HIB act was not motivated by a
distinguishing characteristic because it was an interpersonal conflict between athletes on
a school sports team).
Petitioners argue that B.M.’s interview report does not identify the characteristic
that motivated his alleged actions and, “[a]t most, B.M. does not like someone that he
finds annoying.” Pet’rs’ Br. at 21.8 Indeed, the undisputed evidence in the record9 shows
that B.M. mistreated H.B. B.M. stated10 that he is a member of the “Hating [H.] Club”
because he finds H.B. to be annoying. “She keeps asking if they want to play over and
over again and she annoys them because they don’t want to play with her.” He also
stated that he pushed her while they were playing. H.B. stated that B.M. bullies her, is
mean to her “a lot of the time,” and does “inappropriate stuff.” Student 1 stated that B.M.
pushed H.B.; calls her a name that upsets her; laughs at her; and tells her to “shut up.”
B.M. also causes division by stating, “You’re either on my team or [H.’s] team[,]” which
causes students to be afraid to take H.B.’s side. Student 1 added that H.B. believes B.M.
when he pretends to be nice to her; however, he is ultimately mean to her. Student 2
stated that B.M. asked them to join the “Hating H. Club,” and also told Student 2 to push
H.B. Student 3 confirmed that “people who were annoyed by [H.] were in the club” and
8 Petitioners also argue that the investigation report contradicts itself because it identifies motivating factors
of “disability” and “autism” but also states “none” under “motivation” on the last page. However, the last
page is an “Incident Queue Submission” form that is dated February 7, 2024. It merely reports that a “staff
member reported that a group of students were making fun of another student and created a [sic] ‘I Hate’
club against the student.” R-M at 13. As the investigation was not concluded at the time this entry was
recorded, it is superseded, not contradicted, by the findings reported in the “HIBster Report” that was issued
after the investigation was completed. Id. at 1.
9 The record that was considered here is the HIB report, which includes the written recordings of the
statements of B.M., H.B., and Students 1 through 4. The emails from other students’ parents were
considered only to the extent they served as notice to the school of a potentially problematic interaction
between B.M. and H.B. The record does not indicate that the HIB finding was based upon these parents’
emails. Rather, the emails spurred the initiation of the HIB investigation, the findings of which were based
upon the interviews with B.M., H.B., and Students 1 through 4.
10 Petitioners asserted that “B.M. has stated that he did not give a statement” and that some or all of the
witnesses’ statements are “highly redacted.” Pet’rs’ Br. at 20. However, respondent produced an
unredacted version of B.M.’s statement and those of the other witnesses for in camera review. Resp’t’s Br.
at 4. For this reason, petitioners’ argument that the investigation was improper because B.M. was not
interviewed was rejected. Petitioners also note that some or all of the witnesses’ statements were “highly
redacted.” Ibid. However, in camera review of the unredacted versions of the documents reveals that only
the students’ names were redacted.

OAL DKT. NO. EDU 08742-24
20
that H.B. “can be a little annoying.” Also, B.M. “has been mean to [H.] but he’s mean to
everyone. Last year he was trying to fight [H.]” Student 4 stated that B.M. was a member
of the “[H.] Hitting Club” and said that “[H.] is the worst.” B.M. has said “I hate you” to
H.B. and sometimes said “bad words” to her.11
While petitioners argue that the evidence does not demonstrate that B.M. was
motivated by H.B.’s autism diagnosis, which is stated in the HIB report, an analysis of his
actual motivation is not required. Because the Legislature intended an expansive
meaning of “distinguishing characteristic,” it was not arbitrary, capricious, or unreasonable
for the Board to have concluded that a reasonable person would consider B.M.’s behavior
to have been motivated by B.M.’s perception of H.B. as “annoying,” which is undisputed.
Importantly, there is no evidence that B.M. and H.B. were engaged in a mutual conflict
such that H.B. fought or argued with B.M. or that they were engaged in some form of a
disagreement or argument without an imbalance of power. Rather, it was reasonable to
conclude that B.M. actively sought to mistreat and ostracize H.B. because he considered
her to be annoying and thus dislikable.
Contrary to petitioners’ assertion, the Act does not require that the victim felt that
she was bullied because she had a disability, nor does it require that the victim or the
victim’s family request an HIB investigation. Moreover, while the students who were
interviewed also reported that B.M. acted inappropriately toward other students, including
themselves in some cases, this does not mitigate his actions with respect to H.B.
Similarly, B.M.’s actions cannot be disregarded if other students also mistreated H.B.12
Accordingly, I CONCLUDE that petitioners have not shown by a preponderance of the
11 Petitioners argue that the reports of the students’ statements are vague, such that it cannot be
determined which incidents occurred on February 7, 2024, “which is the subject of the HIB investigation.”
Pet’rs’ Br. at 20–21. While the report lists February 7, 2024, as the “incident date,” petitioners do not cite
authority requiring that the review be limited to only the events that occurred that day. To do so would be
to negate prior events that led to the concern about potential ongoing harassment. Also, as noted above,
only the names of students have been redacted from the statements. The unredacted statements are not
vague or confusing.
12 Moreover, petitioners assert that one of the other students who “allegedly started the ‘hate club’ was
recently the subject of an HIB investigation due to his alleged actions toward another student.” Warshaw
Cert. II at ¶ 13. While petitioners reference this to argue that only M.B. was accused of HIB notwithstanding
that there was conflict among multiple students, it demonstrates that other students may also be subject to
HIB investigations concerning their behavior.

OAL DKT. NO. EDU 08742-24
21
evidence that the Board’s determination concerning the first element is arbitrary,
capricious, or unreasonable.
The Commissioner addressed the type of situations that may satisfy the second
element of the HIB statute:
[C]onduct has been determined to substantially disrupt the
orderly operation of the school when students are so upset or
embarrassed that they are "not fully available for learning.”
G.H. and E.H. on behalf of K.H. v. Board of Education of the
Borough of Franklin Lakes, Bergen County, OAL Dkt. No.
EDU 13204-13, decided February 24, 2014, adopted
Commissioner Decision No. 157-14, April 10, 2014.
Additionally, when other students are “so affected” by
behavior that they report it, the orderly operation of the school
may be substantially disrupted. T.R. and T.R. on behalf of
E.R. v. Bridgewater-Raritan Regional Board of Education,
OAL Dkt. No. EDU 10208-13, decided September 25, 2014,
adopted Commissioner Decision No. 450-14, November 10,
2014.
[D.D.K. ex rel. D.K. v. Bd. of Educ. of Readington, Hunterdon
Cnty., EDU 07682-15 Initial Decision (October 6, 2016),
adopted, Comm’r (November 11, 2016),
https://njlaw.rutgers.edu/collections/oal/.]
Here, the victim did not report the incidents; rather, other students’ parents relayed
information they obtained from their children about B.M.’s behavior, including his role in
the “H.B. hit club” and that B.M. made another student hit H.B. Thus, it is plain that B.M.’s
behavior disrupted or interfered with the orderly operation of the school, as students
reported, via their parents, the disruption caused by B.M.’s treatment of H.B. Also, per
Student 1, B.M.’s behavior impacted other students, as he caused students to be afraid
to take H.B.’s side and B.M. told Student 2 to push H.B. It is also clear that these
behaviors and interactions substantially impacted H.B. and had the effect of insulting and
demeaning her, as she told the investigator that H.B. bullies her, was mean to her a lot of
the time, and does “inappropriate stuff.” As noted above, this was corroborated by the
other students. For these reasons, I CONCLUDE that petitioners have not shown by a
preponderance of the evidence that the Board’s determination concerning the second
element is arbitrary, capricious, or unreasonable.

OAL DKT. NO. EDU 08742-24
22
The third element requires a finding that the act at issue is one that “a reasonable
person should know, under the circumstances, will have the effect of physically or
emotionally harming a student,” “has the effect of insulting or demeaning a student,” or
“creates a hostile educational environment.” Any one of the three criteria satisfies the
third element. In Wehbeh, the Commissioner wrote that “none of these criteria require
the actor to have actual knowledge of the effect that their actions will have, or to
specifically intend to bring about that effect.” Commissioner Decision No. 51-20 at *6,
https://www.nj.gov/education/legal/.
Here, the Board found that B.M. engaged in verbal, physical, and emotional
behavior that was intended to hurt, intimidate, or harass H.B. As discussed above, this
impacted H.B. and had the effect of insulting and demeaning her. At a minimum, a
reasonable person should know that such behavior would place a student in reasonable
fear of at least emotional harm. I therefore CONCLUDE that petitioners have not
demonstrated by a preponderance of the evidence that the Board’s determination
concerning the third element is arbitrary, capricious, or unreasonable.
Nonetheless, petitioners assert that the Board did not take appropriate remedial
action, contrary to N.J.A.C. 6A:16-7.7 and District policy 5512, and ignored the evidence
of B.M.’s disability and petitioners’ requests for assistance, notwithstanding that his
“behaviors were interfering with his ability to learn and make friends.” Pet’rs’ Br. at 15.
As noted above, the Act shall be applied to students with disabilities. Moreover, the
Board, in accord with N.J.A.C. 6A:16-7.7(a)(2),13 imposed consequences on B.M. that
13 N.J.A.C. 6A:16-7.7 provides, in pertinent part:
(a) Each district board of education shall develop, adopt, and implement
a policy prohibiting harassment, intimidation, or bullying on school
grounds, pursuant to N.J.S.A. 18A:37-15.
. . . .
2. Each district board of education shall have control over the
content of the policy, except that the policy shall contain, at a
minimum, the following components:
. . . .

OAL DKT. NO. EDU 08742-24
23
addressed his disabilities and did not impose a suspension or other discipline. The HIB
report ordered the following actions: counseling for B.M.; staff shall be alert to interactions
and partnerships between students; a review of B.M.’s safety plan and 504 plan “to enlist
other accommodations to support” him; and “reflective conversation” with the assistant
principal. Thus, the Board directed remedial measures to assist B.M. and prevent future
HIB acts.
Alleged Procedural Violations
Petitioners assert that there were several procedural violations that undermine the
HIB report and its findings. First, they assert that Principal Allen was inappropriately
involved in the investigation. The District Court has rejected this type of argument, noting
that “the Anti-Bullying Act does not require the Anti-Bullying Specialist to be the only
school official who may conduct the investigation. (‘[T]he investigation shall be initiated
by the principal or the principal’s designee within one school day of the report of the
incident and shall be conducted by a school anti-bullying specialist. The principal may
v. Appropriate remedial action for a student who commits an
act of harassment, intimidation, or bullying that takes into
account the nature of the behavior; the nature of the student’s
disability, if any, and to the extent relevant; the developmental
age of the student; and the student’s history of problem
behaviors and performance. The appropriate remedial action
also may include the following:
(1) A behavioral assessment or evaluation, including, but
not limited to, a referral to the child study team, as
appropriate; and
(2) Supportive interventions and referral services,
including those at N.J.A.C. 6A:16-8;
vi. Consequences for a student who commits an act of
harassment, intimidation, or bullying that are:
(1) Varied and graded according to the nature of the
behavior; the nature of the student’s disability, if any, and
to the extent relevant; the developmental age of the
student; and the student’s history of problem behaviors and
performance; and
(2) Consistent with the provisions of N.J.A.C. 6A:16-7, as
appropriate . . . .

OAL DKT. NO. EDU 08742-24
24
appoint additional personnel who are not school anti-bullying specialists to assist in the
investigation.’)” Dunkley v. Bd. of Educ., 216 F. Supp. 3d 485, 495 (D.N.J. 2016) (quoting
N.J.S.A. 18A:37-15(b)(6)(a)). Moreover, the evidence documents that Ms. Dooley, a
school counselor and the anti-bullying specialist, was in receipt of communications about
alleged HIB acts committed by B.M. Although the HIB report does not specifically address
who conducted the investigation, there is no evidence of prejudice to petitioners as a
result of this omission.
Petitioners also assert that the principal was biased because she made the
complaint. However, they offer no support for this other than to suggest that participants
should have been “non-reporter[s].” Pet’rs’ Br. at 29. They do not cite authority for this
position. They similarly assert that the certification of Dr. Jamie Walker, the director of
guidance and HIB coordinator, is irrelevant because she was not involved in the HIB
investigation. Dr. Walker certified to the procedural history, based upon her knowledge
of these facts. Petitioners point to no evidence that suggests that Dr. Walker’s certification
is not credible, nor do they cite a statute, regulation, or case law that prevents
consideration of the procedural history set forth in the certification.
Petitioners claim that they did not receive the “alleged statements by students 1–
4” and that the respondent’s references to those statements “do not match up with the
statements as set forth in the HIB report.” Pet’rs’ Reply Br. at 4. However, it is undisputed
that petitioners received the statements prior to the Board hearing and, having conducted
an in camera review of the unredacted statements, it is clear that only the students’ names
were redacted. There is no basis for concluding that the statements provided to
petitioners were misleading or confusing.
Petitioners further assert that they did not receive the emails that other parents
sent to school personnel, notwithstanding their request for the entire HIB investigation
and all witness statements. They argue that the “[D]istrict cannot rely upon information
that was requested and then not shared with Petitioners” and that this constitutes a due
process violation. Id. at 5. During a conference call with the parties, petitioners confirmed
that the documents they claim the Board withheld are emails from two parents, which are
Exhibits D and E to respondent’s motion, which were also included in Exhibit M, the HIB

OAL DKT. NO. EDU 08742-24
25
report. They also noted that in her certification Dr. Walker referred to a third parent of
another student. Petitioners’ concern is that, although they received a redacted
investigation report from the Board, it did not include the emails from parents that raised
concerns about B.M.’s behavior.
In response to petitioners’ arguments about procedural defects, the parties were
asked to submit supplemental briefs concerning the scope of documents that must be
provided to the parents of a student who is the subject of a HIB investigation and the
consequences for failing to do so. Petitioners addressed multiple issues in their
supplemental brief; the brief was considered with respect to the two questions above. As
noted above, N.J.S.A. 18A:37-15(b)(6)(d) requires production of “information about the
investigation . . . including the nature of the investigation, whether the district found
evidence of harassment, intimidation, or bullying,” and information about any discipline
that was imposed and services that were provided. Although petitioners acknowledge
that the statute does not expressly mandate production of the investigation report or
witnesses’ statements, they contend that “a school district is required to provide parents
with a complete investigatory record which includes the HIB investigative report, witness
statements, written and recorded, and other documentary or other evidence that was part
of the investigation or considered in the investigation.” Pet’rs’ February 6, 2025, Br. at 4.
Petitioners assert that these emails “are relevant in assessing the whole situation” and,
although they “mention B.M. there is no reference to the alleged victim or any reference
or support that any actions by B.M. were motivated by any distinguishing characteristic
such as a disability.” Id. at 5. They argue that fundamental fairness and due process
dictated the disclosure of these documents prior to the Board’s consideration of the
matter.
In response, respondent seems to assert that the “contents” of the emails “appear
in the very redacted HIB report that [petitioners] . . . received prior to the Board meeting.”
Resp’t’s February 7, 2025, Br. at 3. It also contends that the “emails are not the HIB
investigation on which the Board is relying in support of its defense.” Id. at 4.
Petitioners acknowledge that the Act does not expressly mandate production of
the investigation report or witness statements. They also assert that, “[i]n practice, most

OAL DKT. NO. EDU 08742-24
26
school districts turn over at least a redacted investigation report before an appeal to the
Board of Education.” Pet’rs’ February 6, 2025, Br. at 5. Cases that have addressed the
Act have addressed the scope of required production. In J.L. v. Board of Education, 2018
N.J. Super. Unpub. LEXIS 2272 (October 16, 2018), the court affirmed the remand of a
HIB decision to the board of education because the parents of the student whose actions
were alleged to have violated the Act were not provided information about the HIB
investigation until after the board of education voted and found that the student violated
the act. The court directed, “[p]rior to the remand hearing, the Board shall provide [the
parent of the student who was alleged to have violated the Act] with the full record of the
HIB allegations against [the student,] including the underlying investigative report, any
additional written reports or summaries, and the letter from [the alleged victim’s] parents
to the superintendent. Only upon receipt of a complete record can the Board satisfy the
requirements of N.J.S.A. 18A:37-15(b)(6)(a) to -15(b)(6)(f).”14 (Emphasis added.)
The scope of information that must be provided was also addressed in Young-Edri
v. Board of Education of Elizabeth, Union County, EDU 17812-18, Initial Decision (May
30, 2019), adopted, Comm’r (July 8, 2019), https://njlaw.rutgers.edu/collections/oal/. A
finding that a teacher violated the Act was remanded to the local board of education for a
new hearing because she was not properly informed about the investigation. Even
though the school’s anti-bullying specialist “conducted a comprehensive investigation and
interviewed numerous witnesses,” the notice of the finding against her did not “provide
any information about the investigation or in any way recount the factual support for the
. . . conclusion” that she had violated the Act. Young-Edri, Initial Decision,
https://njlaw.rutgers.edu/collections/oal/. The ALJ concluded “that due process requires
that Young-Edri be given an opportunity to review [the anti-bully specialist’s investigation
report], and any available statements or other documentary evidence, and be permitted
to appear again before the Board for the hearing contemplated by law. . . . [W]hat is
surely required is an opportunity for Young-Edri to fully understand the evidence against
her and to present testimony and documents to the Board for its consideration; or, put
another way, what is required is the modicum of local due process needed to guard
14 After the Board found a violation of the Act, the victim’s parents wrote to the principal and HIB Committee,
expressing their desire that the students receive counseling and that the “incident not . . . be classified as
HIB.” Id. at *6.

OAL DKT. NO. EDU 08742-24
27
against arbitrary, capricious, or ill-informed Board action.” Ibid. The judge thus ordered
that “that Young-Edri be supplied with the investigatory file to include witness statements
and the report of the anti-bullying specialist; and that she be permitted to present
witnesses and documentary evidence to the Board at a hearing.” Ibid. (emphasis added).
The Commission adopted the ALJ’s decision, highlighting that the petitioner was entitled
to receive “a written summary of the HIB investigation” pursuant to N.J.S.A. 18A:37-
15(b)(6)(d). Young-Edri, Comm’r, https://njlaw.rutgers.edu/collections/oal/ (emphasis
added).
Here, it is undisputed that, prior to their hearing before the Board, respondent
provided petitioners the investigation report and the reports of the students’ interviews. It
did not violate the express language of the Act if it did not produce the parents’ emails.
Moreover, the finding that B.M. violated the Act was based on the students’ interviews,
including his own, not the parents’ emails. Thus, petitioners were not denied information
that the Act required.
Petitioners also contend that the report was inappropriate because it was not
issued in a timely fashion. While it appears that the report was not issued within the
requisite number of days, petitioners have not demonstrated how they were prejudiced
by this. In G.C. ex rel. Minor Child B.C. v. Township of Lacey Board of Education, Ocean
County, EDU 10910-20, Initial Decision (August 10, 2022),
https://njlaw.rutgers.edu/collections/oal/, adopted, Comm’r (September 19, 2022),
https://www.nj.gov/education/legal/, the HIB report stated that the finding of HIB “will be
affirmed at the . . . Board meeting” and did not state whether the investigation was
completed within ten days of the initial complaint. G.C., Initial Decision,
https://njlaw.rutgers.edu/collections/oal/. The ALJ wrote, “While the Board should, in the
future, be more precise in its recordkeeping and reporting in HIB matters, these
procedural missteps by the Board do not amount to a violation of petitioner’s due process
rights.” Ibid. Noting that the parents were on notice of the HIB allegation and were given
a hearing before the Board to contest the finding, during which they were represented by
counsel, the ALJ found that “whatever procedural irregularities occurred in this matter
were cured by the Board hearing[.]” Ibid.; see also Dunkley, 216 F. Supp. 3d at 496
(“although schools are required to provide students with some level of due process,

OAL DKT. NO. EDU 08742-24
28
maintaining security and order in the schools requires a certain degree of flexibility in
school disciplinary procedures, and we have respected the value of preserving the
informality of the student-teacher relationship”) (citation omitted); R.F. ex rel. minor child
O.F. v. Bd. of Educ. of Montclair, Essex Cty., EDU 09352-23, Initial Decision (September
4, 2024), 2024 N.J. AGEN LEXIS 913, adopted with mod., Comm’r (October 10,
2024)(while hearing was more than ten days following initial report, both parties
contributed to the delay and “the delay did not interfere with the due process rights of [the
student] or petitioner, who presented testimony and other evidence at the Board
hearing”). Similarly, here, petitioners were not prejudiced, as they were advised of the
allegation and investigation; they were provided the redacted HIB report, which included
the students’ interview statements; and they had a full opportunity to address the matter,
while represented by their counsel, before the Board.
Petitioners also assert that it was inappropriate to interview student witnesses on
the same day and approximately two weeks after the alleged incident. They assert that
this improperly required the students to “go back in time to recall the details of an alleged
incident,” as the students “recount[ed] various alleged incidents that are not related in
time and timeframes that are not referenced[.]” Pet’rs’ Br. at 2. There is no evidence in
the record that indicates that the students’ recollections were faulty. Rather, their
statements are largely consistent with respect to the key facts supporting the HIB finding.
Without more, petitioners’ argument relies upon speculation. Moreover, the passage of
considerably more time was not a bar when courts ordered remanded hearings before
boards of education. See, e.g., J.L. v. Bd. of Educ., 2018 N.J. Super. Unpub. LEXIS 2272
at *5 (rejecting argument that a fair hearing could not be provided on remand because
almost two years passed from the school board’s decision to the Appellate Division’s
decision; court noted that the anti-bullying specialist “made a record of the children’s
statements”).
With respect to petitioners’ claim that the investigation was prejudicial because
only some of B.M.’s classmates were interviewed, they have not cited authority for this
proposition. Moreover, as discussed above, the evidence in the record amply supports

OAL DKT. NO. EDU 08742-24
29
the finding of HIB against B.M.15 Finally, petitioners seem to contend that it is problematic
that the student witnesses’ names were provided for the first time with respondent’s
summary decision motion. However, they do not explain how this is problematic and,
moreover, students’ identities must be protected.16
For the above reasons, I CONCLUDE that the action taken by the District in
response to the HIB complaint was substantially in compliance with the controlling
statutes and regulations. While some aspects of the process appear to have not
conducted in a timely manner, this was not prejudicial to petitioners.17
First Amendment Protection
Lastly, petitioners argue that “B.M.’s alleged statement, ‘I hate you,’ cannot
legitimately form the basis for an HIB since it was protected speech.” Pet’rs’ Br. at 41.
The United States Supreme Court addressed students’ First Amendment rights in Tinker
v. Des Moines Independent Community School District, 393 U.S. 503 (1969). It explained
that, while “[i]t can hardly be argued that either students or teachers shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate,”
“conduct by the student, in class or out of it, which for any reason—whether it stems from
time, place, or type of behavior—materially disrupts classwork or involves substantial
disorder or invasion of the rights of others is, of course, not immunized by the
constitutional guarantee of freedom of speech.” Id. at 506, 513. A school may
circumscribe speech that results in the “interference, actual or nascent, with the schools’
work or of collision with the rights of other students to be secure and to be let alone.” Id.
at 508. Moreover, “schools, as instruments of the state, may determine that the essential
15 Petitioners, citing to respondent’s representation that student interviews were “recorded,” also asserted
that they were denied copies of the audio recordings or verbatim transcripts. Respondent explained in a
supplemental brief that neither audio recordings nor verbatim transcripts were prepared. Rather, the
recordings were the written reports of the students’ interviews. Resp’t’s February 7, 2025, Br., Certification
of Eric. L. Harrison (“Harrison Cert.”) at ¶ 2.
16 Student confidentiality laws preclude the District and Board from sharing another student’s confidential
information, including their name, when conducting investigations under the Act. See, e.g., New Jersey
Pupil Records Act, N.J.S.A. 18A:36-19 (operating in conjunction with the Family Educational Rights and
Privacy Act, 20 U.S.C. § 1232g, to safeguard pupil records).
17 However, the District should endeavor to comply with the deadlines established by the Act and to be
precise when reporting data and the names of the personnel who participated in the HIB process.

OAL DKT. NO. EDU 08742-24
30
lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd,
indecent, or offensive speech and conduct[.]” Bethel Sch. Dist. v. Fraser, 478 U.S. 675,
683 (1986); see also Morse v. Frederick, 551 U.S. 393, 403 (2007) (Generally, “student
expression may not be suppressed unless school officials reasonably conclude that it will
‘materially and substantially disrupt the work and discipline of the school”)(internal citation
omitted).
Here, the Board did not violate B.M.’s First Amendment rights by finding that he
engaged in HIB acts by, in part, telling H.B. that he hated her. As discussed above, the
Act recognizes free-speech concerns, such that an HIB finding must be predicated in part
on a substantial disruption of the orderly operation of the school or the rights of other
students. Here, B.M.’s statement substantially interfered with H.B.’s right to be secure
and free from emotional harm and contributed to the disruption of the orderly operation of
the school. Moreover, even if the phrase were not considered, there is sufficient other
evidence of his negative behavior toward H.B. Accordingly, petitioners’ First Amendment
argument does not carry the day with respect to B.M.’s use of this phrase.
Petitioners’ concern for their child and their desire to protect him is understandable
and commendable. Their efforts to address his significant needs and to work
collaboratively with the school are apparent. However, for all of the reasons stated above,
I am compelled to CONCLUDE that they have not demonstrated by a preponderance of
the evidence that the Board’s determination was arbitrary, capricious, or unreasonable.
The Board’s determination was supported by the evidence; there is no evidence of
improper motivation; and petitioners were afforded due process.
ORDER
I hereby ORDER that respondent’s cross-motion for summary decision is
GRANTED and petitioners’ cross-motion for summary decision is DENIED.

OAL DKT. NO. EDU 08742-24
31
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 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.
March 6, 2025
DATE JUDITH LIEBERMAN, ALJ
Date Received at Agency: March 6, 2025
Date Mailed to Parties:

OAL DKT. NO. EDU 08742-24
32
APPENDIX
Exhibits
For respondent:
R-A Curriculum vitae of Dr. Jaime Walker
R-B Board Policy 5600 (Student Discipline/Code of Conduct)
R-C Board Policy 5512 (Harassment, Intimidation, and Bullying)
R-D Electronic mail from Parent 1
R-E Electronic mail from Parent 2
R-F Somerset Hills School District Calendar, 2023–24 SY
R-G Statement of H.B.
R-H Statement of B.M.
R-I Statement of Student 1
R-J Statement of Student 2
R-K Statement of Student 3
R-L Statement of Student 4
R-M Investigation Report
Certification of Eric L. Harrison, Esq., with Exhibits
For petitioners:
P-1A Notification of disposition of HIB appeal, April 26, 2024
P-1B HIB Report
P-1C Section 504 Accommodation Plan, June 14, 2023
P-2 Certification of A.M.
P-3 Emails between petitioners and school personnel
P-4 Report card
P-5 Report card
P-6 Letter from petitioners to school personnel, February 27, 2023

OAL DKT. NO. EDU 08742-24
33
P-7 CBCL/6-18 Narrative Report & Critical Items
P-8 Letter from Shelly Lanzkowsky, M.D., re: B.M., March 14, 2023
P-9 Letter from Emily Keim Shaw, APN, March 22, 2023
P-10 Letter from Elizabeth M. Smith, Psy.D., March 28, 2023
P-11 Letter from Meredith Panik to petitioners, March 30, 2023
P-12 Letter from Colleen Butler, Ed.D., to petitioners, March 15, 2024
P-13 Section 504 Accommodation Plan, June 4, 2024
P-14 Individualized Education Program, August 6, 2024
P-15 Letter from Marilyn A. Kubichek, M.D., May 14, 2024
P-16 Letter from Dr. Porter, October 16, 2024
Certification of Julie Warshaw, Esq., November 12, 2024, with exhibits:
P-A Email Warshaw to Harrison
P-B Emails between Warshaw and Harrison
P-C Emails between Warshaw and Harrison
P-D Emails between petitioners and Dr. Butler
P-E Email from Warshaw to Harrison
P-F Emails between Warshaw and Harrison
P-G Letter Warshaw to Harrison
P-H Emails between Warshaw and Harrison
P-I Written communication from Warshaw to Harrison