E.H. and C.H., on behalf of minor child, M.H. v. Board of Education of the Borough of Kinnelon, Morris County, 7/27/26 (#270-26)

270-26
OAL Dkt. No. EDU 13237-24
Agency Dkt. No. 297-9/24
New Jersey Commissioner of Education
Final Decision
E.H. and C.H., on behalf of minor child, M.H.,
Petitioners,
v.
Board of Education of the Borough of Kinnelon,
Morris County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by the Kinnelon Board of Education (Board) pursuant to N.J.A.C. 1:1-18.4,
and the reply thereto filed by petitioners have been reviewed and considered.
This matter involves petitioners’ challenge to the Board’s determination that their minor
child, M.H., committed harassment, intimidation, or bullying (HIB). 	On March 20, 2024, the
alleged victim (A.V.)’s mother emailed a school counselor to request a check-in with her child due
to alleged ongoing harassment by A.V.’s classmate and former boyfriend, M.H. 	The Board
commenced an HIB investigation later that day and interviewed A.V., M.H., nine students, and
five teachers. The Incident Report/Investigation Form (Investigation Form) notes that a school
counselor and Student Assistant Coordinator (SAC) met with A.V., who reported that M.H.
“continues to talk badly about her to others, stares at her, and takes pictures of her in class.”
Joint Exhibit F. 	A.V. further reported that she “does not want to come to school, feels very

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uncomfortable around [M.H.] and feels he is harassing/bullying her in indirect subtle ways that
are hard to prove. For example, he will say her name loudly when talking to others,” post things
on social media that A.V. knows are directed at her, but will not call her out by name or tag her,
and “shows pictures of her to his friends from when they dated, etc.” Ibid.
Regarding M.H.’s specific behavior on March 20, 2024, A.V. reported that during their
biology class, M.H. started talking about A.V. “hooking up” with his friends. A.V. further reported
that M.H.’s behavior continued in their English class, with M.H. saying things like, “It’s crazy how
she is saying she got with my friends” while showing classmates something on his phone screen.
M.H. then put his phone down on A.V.’s desk and said, “you’re lying about getting with my
friends.” 	Joint Exhibit B. 	A.V. reported that she felt as though M.H. was trying to publicly
humiliate her. Ibid.
During his interview, M.H. admitted to speaking with his friend about A.V. during class
but denied doing so for A.V. to overhear. M.H. also denied leaving his phone on A.V.’s desk for
her to see. 	Although M.H. denied A.V.’s allegations and accused her of causing the issues
between them, the consensus from the witness interviews was that M.H. did things to antagonize
A.V. Reported behaviors by M.H. included loudly accusing A.V. during class of engaging in sexual
activity or “hooking up” with his friends, speaking badly about A.V. to others within her earshot
so that she could hear him, taking pictures of A.V. during class, showing pictures of A.V. to male
classmates, and spreading lies intended to turn peers against A.V. 	The interview notes also
mentioned that this was not the first time A.V. had reported problems with M.H. or that M.H.
had been disciplined for his behavior towards A.V. Some witnesses noted that they had observed
A.V. and M.H. stare at each other during class.

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The 	Anti-Bullying 	Specialist 	(ABS) 	summarized 	the 	investigation’s 	findings 	in 	the
Investigation Form, which stated the following:
Today, it was reported that the named offender came across the classroom to
[A.V’s] English table and began showing his phone to other students while saying
“I can’t believe you are lying about hooking up with my friends.” This comment
was not said directly to the named victim but in front of her and loud enough for
her to hear. When speaking with students in the class, it was corroborated that
this occurred and upset the named victim. It was also corroborated that he was
showing them pictures of the named victim as well from his camera roll.
When speaking with a witness, it was corroborated that they too believed the
named offender had taken pictures of the named victim in class. This witness
reported that the phone is discretely [sic] placed at the offender’s side and
because they sit behind him in the back of the classroom, they can see the phone
and both of them on the screen when he takes the photo. It was reported that
[he] does this at least 1-2 times a week.
When speaking with another witness it was reported that the named offender told
lies in an attempt to turn them against the named victim and stop being her friend.
This was corroborated by a second witness who observed the named offender
telling a different student that the named victim was “shit talking them” trying to
make her look bad and turn others against her.
Through this investigation, it is determined that the behaviors carried out by the
named offender are harassing in nature with the purpose of harming/ to upset the
named victim. It does meet the criteria for an HIB as it is motivated by an actual
characteristic of gender and other distinguishing characteristic as the victim was a
target due to a former relationship with the offender.
Joint Exhibit F.
On June 10, 2024, the Board notified petitioners that it had approved the findings and
recommendation of the investigator and the Superintendent. On September 9, 2024, petitioners
appealed the determination to the Commissioner of Education, and on September 13, 2024, the
Board filed a response. The matter was transmitted to the OAL on September 16, 2024; there,
the ALJ granted petitioners’ cross-motion for summary decision upon concluding that the Board’s
HIB determination was arbitrary, capricious, and unreasonable.

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In reaching his determination, the ALJ found that M.H.’s conduct satisfied each prong of
the Anti-Bullying Bill of Rights Act (Act) except for the requirement that the conduct at issue must
be reasonably perceived as being motivated by any actual or perceived characteristic. First, the
ALJ rejected the Board’s finding that M.H.’s behavior was motivated by A.V.’s gender, stating that
“[c]onsidering both the law and the totality of the circumstances . . . no reasonable person could
conclude that M.H.’s actions were motivated by A.V.’s gender and not her status as his ex-
romantic partner.” 	Initial Decision at 22. 	According to the ALJ, it was “obvious from the
investigation . . . that A.V.’s status as a female is purely incidental to her status as M.H.’s ex-
girlfriend.” Id. at 20. Next, the ALJ acknowledged that the Board had identified A.V.’s former
relationship with M.H. as another characteristic motivating M.H.’s conduct. The ALJ concluded,
however, that a breakdown in a relationship between two students is peer conflict, and therefore
does not constitute a distinguishing characteristic under the Act. Accordingly, the ALJ overturned
the Board’s HIB determination.
In its exceptions, the Board contends that the ALJ erred in concluding, as a matter of law,
that misconduct by a male student against his former girlfriend cannot be motivated by gender
merely because the parties previously dated. 	In so doing, the Board contends that the Initial
Decision treats “former romantic partner” and “gender” as mutually exclusive categories when
they are not. The Board argues that M.H. targeted A.V. “specifically as [his] former girlfriend.
The relational status itself is gendered. A male student retaliating against a former female dating
partner through humiliation, monitoring, sexualized accusations, and reputational attacks may
reasonably be perceived as acting because she is female and because of the gendered nature of
their prior relationship.” Exceptions at 2 (emphasis in original). The Board further argues that

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the first prong of the Act is intentionally expansive, allowing for mixed motives. Nonetheless,
even if the prong was construed more narrowly, the Board asserts that it reasonably concluded
that A.V.’s gender was a motivating characteristic, and that, at minimum, this conclusion cannot
be deemed arbitrary. The Board emphasizes that the ALJ substituted his own judgment for that
of the Board, in contravention of the law, when he concluded that “no reasonable person could
conclude that gender was a motivator.” Lastly, the Board argues that it reasonably viewed A.V.’s
status as M.H.’s former intimate partner as a distinguishing characteristic.
In 	reply, 	petitioners 	maintain 	that 	the 	Board’s 	decision 	is 	factually 	and 	legally
unsupported and therefore arbitrary, capricious, and unreasonable. They argue that the ALJ was
correct in determining that M.H.’s conduct was motivated by an ongoing dispute following a
breakup and not by A.V.’s gender or other distinguishing characteristics. 	Citing case law,
petitioners contend that even if the conduct at issue causes physical, social, or psychological
harm, there can be no HIB finding absent an actual or perceived distinguishing characteristic of
the alleged victim. Petitioners further contend that the Board’s argument that A.V. was targeted
because she was M.H.’s former girlfriend and that the relational status itself is gendered
“conflates (1) the identity of the person at whom conduct is directed with (2) the statutory
requirement that the conduct be reasonably perceived as motivated by a distinguishing
characteristic.” 	Reply Exceptions at 11. 	Specifically, petitioners argue that merely identifying
that a student possesses a characteristic such as gender does not satisfy the Act absent a showing
that the conduct occurred because of the characteristic.
The Act defines HIB as:
[A]ny gesture, any written, verbal or physical act, or any electronic
communication, whether it be a single incident or a series of

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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
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.
In 	summary, 	once 	the 	alleged 	written, 	verbal, 	or 	physical 	act, 	or 	electronic
communication is substantiated, a finding of HIB requires that three elements under the Act be
satisfied. First, the conduct must be reasonably perceived as being motivated by any actual or
perceived characteristic expressly identified in the statute, or by any other distinguishing
characteristic. Ibid. Second, the conduct must substantially disrupt or interfere with the rights
of other students or the orderly operation of the school. Ibid. Third, one of the three conditions
set forth in subsections (a), (b), and (c) must be satisfied. Ibid.; Wehbeh v. Bd. of Educ. of the
Twp. of Verona, Essex Cnty., Commissioner Decision No. 510-20 (Feb. 4, 2020).
Upon a comprehensive review of the record, the Commissioner rejects the ALJ’s
conclusion that petitioners established that the Board’s HIB determination was arbitrary,
capricious, or unreasonable. As an initial matter, the Commissioner holds that the ALJ improperly

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substituted his own judgment for that of the Board when he determined that “no reasonable
person could conclude that M.H.’s actions were motivated by A.V.’s gender and not her status as
his ex-romantic partner.” Initial Decision at 22. It is well-established that 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). 	Regarding HIB determinations, this
standard of review requires petitioners to “demonstrate that the Board acted in bad faith, or in
utter disregard of the circumstances before it.” G.H. and E.H. o/b/o K.H. v. Bd. of Educ. of Borough
of Franklin Lakes, Bergen Cty., OAL Dkt. No. EDU 13204-13, Initial Decision (Feb. 24, 2014),
adopted, Commissioner Decision No. 157-14 (Apr. 10, 2014). The Commissioner may not
substitute her judgment for that of the Board. Schinck v. Bd. of Educ. of Westwood Consol. Sch.
Dist., 60 N.J. Super. 448, 476 (App. Div. 1960).
In this case, district staff conducted a thorough HIB investigation and interviewed A.V.,
M.H., nine student witnesses, and five teacher witnesses. Notes from these interviews indicate
that M.H.: 1) loudly accused A.V., during class, of engaging in sexual activity; 2) displayed photos
of A.V. to his male peers; 3) spoke loudly about A.V. to his friends so that she could overhear him;
4) spread rumors about A.V. to socially isolate her; and 5) photographed A.V. during class without
her consent, with one witness reporting that M.H. engages in such behavior at least 1-2 times
per week. Notably, A.V. and M.H.’s English teacher reported that sometimes M.H. and a group
of boys would look at A.V. and laugh. It was entirely reasonable for the Board to conclude that a
reasonable person would consider M.H.’s conduct of spreading sexual rumors about A.V.,

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publicly discussing her alleged sexual behavior, displaying images of her to their peers, regularly
photographing her discreetly, and attempting to isolate her by speaking negatively about her
with peers, to be motivated by A.V.’s gender. Furthermore, the Commissioner cannot find that
it has been demonstrated that the Board’s handling of this matter was carried out in a manner
that was in bad faith, or in utter disregard of the circumstances. The Commissioner notes that
the ALJ’s mere disagreement with the Board’s finding as to the motivating characteristic does not
equate to an abuse of discretion on the part of the Board. 	Rather, “where there is room 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 Envtl. Prot., 122 N.J. Super. 184, 199-200 (Ch. Div. 1973), aff’d,
131 N.J. Super. 37 (App. Div. 1974). By overlooking the Board’s properly supported finding that
A.V.’s gender was a motivating characteristic, the ALJ failed to afford the Board’s decision the
proper deference. See Kopera at 294. The Commissioner therefore declines to adopt the ALJ’s
findings and conclusions in that regard.
Turning to petitioners’ reply exceptions, the Commissioner notes that petitioners are
correct that misconduct motivated only by a breakdown in a relationship between two students
does not constitute a distinguishing characteristic under the Act. See K.L. v. Evesham Twp. Bd. of
Educ., 423 N.J. Super. 337, 351 (“[H]armful or demeaning conduct motivated only by another
reason, for example, a dispute about relationships … or aggressive conduct without identifiable
motivation, does not come within the statutory definition of bullying.”). As such, the fact that
A.V. and M.H. formerly dated cannot by itself qualify as a distinguishing characteristic. However,

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the Board reasonably concluded that M.H.’s behavior was motivated by A.V.’s gender as well; as
such, the first prong of the HIB analysis has been met.
As to the second element in the Act, the Commissioner concurs with the ALJ that it was
not arbitrary, capricious, or unreasonable for the Board to find that M.H.’s conduct substantially
disrupted or interfered with the orderly operation of the school or the rights of other students.
Here, the record indicates that M.H.’s conduct disrupted A.V.’s learning experience. 	A.V. and
M.H. had four classes together at the time of the investigation. 	Interview notes from A.V. and
M.H.’s science teacher indicate that A.V. would vent to her, seeking assistance on how to deal
with being uncomfortable around M.H. This teacher also noticed a developing paranoia in A.V.
Another teacher witness noted that A.V.’s facial expressions and body language suggested that
she was uncomfortable by M.H.’s presence. M.H. reported feeling embarrassed, humiliated, and
very upset when M.H. loudly accused her of engaging in sexual behavior during class, causing her
to report the behavior to her mother. A student witness reported that a group of male peers
were looking at A.V. while M.V. appeared to be showing them photos, causing her to begin crying.
The witness did not know what was shown on the phone but believed that M.H. wanted A.V. to
think it was about her. “Upset and embarrassed students are not fully available for learning.”
G.H. o/b/o K.H. v. Bd. of Educ. of Franklin Lakes, Initial Decision, OAL Dkt. No. EDU 13204-13 (Feb.
24, 2014), aff’d, Commissioner Decision No. 157-14 (Apr. 10, 2014). In addition, interview notes
indicate that M.H.’s conduct affected the learning of other students. 	For example, a student
witness reported that M.H. took photos of A.V. during class at least 1-2 times a week and that
because she and A.V. sit near each and behind M.H, her image was in the photos as well,
prompting her to confront M.H.

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As to the third element, the Commissioner agrees with the ALJ that it was not arbitrary,
capricious, or unreasonable for the Board to find that a reasonable person should know, under
the circumstances, that M.H.’s actions would have the effect of emotionally harming A.V. For all
these reasons, petitioners have failed to satisfy their burden of demonstrating that the Board
acted arbitrarily, capriciously, or unreasonably when it determined that M.H. committed an act
of HIB. Nor have petitioners demonstrated that the Board acted in bad faith or in utter disregard
of the circumstances before it.
Accordingly, the Initial Decision is adopted in part and rejected in part. The Board’s
determination that M.H. committed an act of HIB is affirmed.
IT IS SO ORDERED.1
COMMISSIONER OF EDUCATION
Date of Decision: 	July 27, 2026
Date of Mailing: 	July 27, 2026
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 13237-24
AGENCY DKT NO. 297-9/24
E.H. AND C.H., ON BEHALF OF MINOR
CHILD, M.H.,
Petitioners,
v.
BOROUGH OF KINNELON BOARD OF
EDUCATION, MORRIS COUNTY,
Respondent.
_______________________________________
Karen P. Edler, Esq., Jacqueline E. Lasher, Esq. and Rebecca Lundgren,
Esq. for petitioners (Price, Meese, Shulman & D’Arminio, P.C., attorneys)
Jeffrey R. Merlino, Esq., for respondent (Methfessel & Werbel, P.C., attorneys)
Record Closed: April 13, 2026 Decided: April 28, 2026
BEFORE MATTHEW G. MILLER, ALJ:
STATEMENT OF THE CASE
Petitioners E.H. and C.H., the parents of minor child M.H., have challenged the
determination made by the respondent, the Kinnelon Board of Education, Morris County

OAL DKT. NO. EDU 13237-24
2
(respondent or District), that M.H. committed an act of harassment, intimidation, and
bullying (HIB) against a classmate that was reported by the alleged victim’s parent on
March 20, 2024, pursuant to a complaint that was brought per N.J.S.A. 18A:37-13.2 to
-37 (the Anti-Bullying Bill of Rights Act).
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
The HIB complaint arises out of a series of incidents that occurred involving M.H.
and his ex-girlfriend, A.V.1
The district was contacted by A.V.’s mother on March 20, 2024 and an HIB
investigation was instituted that day. On or about March 25, 2024, the District advised
the petitioners that the investigation had been instituted, and their son may have
committed an act of harassment, intimidation, or bullying. The investigation was
completed on April 11, 2024, and it was determined that M.H. had committed an HIB
violation. The matter was presented to the Board of Education on April 25, 2024, where
it was accepted on first reading.
By letter dated April 26, 2024, the petitioners were advised of that acceptance.
The Superintendent’s recommendation that the HIB finding be confirmed was accepted
by the Board during its May 21, 2024, meeting. That finding was conveyed to the
petitioners by letter on June 10, 2024.
On September 9, 2024, this appeal was filed with the Department of Education’s
Office of Controversies and Disputes. Respondent filed an answer to the appeal on
September 13, 2024, and the Department transmitted this matter to the Office of
Administrative Law (OAL) on September 16, 2024, for a hearing as a contested case.
N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -23.
An initial conference took place on October 23, 2024, followed by another
conference on November 20, 2024. Following a conference on January 2, 2025, during
1 A.V. – alleged victim

OAL DKT. NO. EDU 13237-24
3
a February 4, 2025 conference, a briefing schedule for Cross-Motions for Summary
Decision was set.
THE REPORT
This is the type of HIB case where a compendium of incidents led to the filing of
the complaint.
The investigation was performed by Danielle Wysocki, an anti-bullying specialist
at Kinnelon High School and was completed on April 11, 2024. (J-6.) The substantive
content of the report follows.
Incident Description:
On 3/20/24 a parent sent an email to a school counselor
asking for a check-in with their child due to ongoing
harassment by a classmate. The school counselor and SAC
met with the named victim who reported her ex-boyfriend
(named offender) continues to talk badly about her to others,
stares at her, and takes pictures of her in class. The named
victim reported that she does not want to come to school,
feels very uncomfortable around the named offender and
feels he is harassing/bullying her in indirect, subtle ways that
are hard to prove. For example, he will say her name loudly
when talking to others, has posted things on social media
that she knows are directed at her but isn’t tagged or called
out by name, shows pictures of her to his friends from when
they dated, etc.
Today, it was reported that the named offender came across
the classroom to her English table and began showing his
phone to other students while saying “I can’t believe you are
lying about hooking up with my friends.” This comment was
not said directly to the named victim, but in front of her and
loud enough for her to hear. When speaking with students in
the class, it was corroborated that this occurred and upset
the named victim. It was also corroborated that he was
showing them pictures of the name victim as well from his
camera roll.
When speaking with a witness, it was corroborated that they
too believed the named offender had taken pictures of the
named victim while in class. This witness reported that the

OAL DKT. NO. EDU 13237-24
4
phone is (discreetly) placed at the offender’s side and
because they sit behind him in the back of the classroom,
they can see the phone and both of them on the screen
when he takes the photo. It was reported that (he) does this
at least 1−2 times a week.
When speaking with another witness it was reported that the
named offender told lies in an attempt to turn them against
the named victim and stop being her friend. This was
corroborated by a second witness who observed the named
offender telling a different student that the named victim was
‘shit talking them’ trying to make her look bad and turn
others against her.
Through the investigation, it is determined that the behaviors
carried out by the name offender are harassing in nature
with the purpose of harming/to upset the named victim. It
does meet the criteria for an HIB as it is motivated by an
actual characteristic of gender and other distinguishing
characteristics as the victim was a target due to a former
relationship with the offender. This conduct is unacceptable
and will be handled through the KHS code of conduct and
restorative counseling in the high school.
Both M.H. and A.V. were classified as being eligible for and receiving special
education services.
Supporting the investigation were notes of interviews that were conducted with
both A.V. and M.H., five teachers and nine students. (J-B.) Rather than summarizing
the multiple interviews, I would note that there was a general consensus amongst the
non-involved witnesses as to basic facts of interactions between the parties (which is
summarized below).
As for the interviews with M.H. and A.V., he effectively denied everything and
claimed that A.V. was the one causing the issues, while she claimed the opposite. In
assessing the interviews, there were clear credibility problems on both sides. Frankly,
M.H.’s blanket defenses were contrary to every independent witness interview, while
A.V. told one teacher she “didn’t know” whether she followed M.H. on Instagram but
asked another teacher if she should “like” his Instagram posts. She also advised the
investigator that “(a)bout a week ago there was a post on tic tok (sic) that (M.H.) had on

OAL DKT. NO. EDU 13237-24
5
his account that said, ‘Glad we aren’t talking anymore because I can’t stand that horrific
smell’ insinuating that she smells bad.” She claimed not to have seen that post, but “her
friend did.”
BASIC UNDISPUTED FACTS
Based upon the evidence supplied by the parties, the investigative report and the
interviews, I FIND that the following FACTS are largely undisputed.
1. During the 2023−24 school year, both M.H. and A.V. were freshmen at
Kinnelon High School.
2. At some point in 2023, M.H. and A.V. were in a dating/romantic relationship.
3. That relationship ended around Thanksgiving 2023.
4. During the 2023−24 school year, they shared four classes.
5. M.H. would do things to antagonize A.V. and speak badly about her to others
(sometimes within her earshot) but would rarely speak to her directly.
6. M.H. demonstrated by his actions and statements to others that he was not
“over” A.V. and that the problem was exacerbated when he thought she had
started dating someone else.
7. M.H. was clearly the antagonist, but the general consensus amongst those
interviewed was that A.V. contributed, even unintentionally, to the drama
between them by doing such things as staring at him during class and
continuing to follow him on Instagram.
8. This was not the first time that M.H. had been disciplined/admonished for his
actions toward A.V. following the break-up.

OAL DKT. NO. EDU 13237-24
6
9. Their teachers were aware of the situation and took steps to limit their
interactions.
10. Their peer groups were acutely aware of the ongoing situation.
THE MOTIONS
The parties have filed Cross-Motions for Summary Decision, arguing that there
are no material facts in dispute that would permit the petitioners to demonstrate that the
district’s finding of an HIB violation against M.H. was arbitrary, capricious or
unreasonable, or on the other hand, that would support the district’s finding.
Respondent Motion
Perhaps most importantly, respondent points out that a District “is entitled to a
presumption of correctness” and that without “an affirmative showing that such decision
was arbitrary, capricious and unreasonable,” it must prevail. Thomas v. Morris Twp. Bd.
of Educ., 89 N.J. Super. 327, 332 (App. Div. 1965). See also Kopera v. W. Orange Bd.
of Educ., 60 N.J. Super. 288, 294 (App. Div. 1960).
It was argued that there is clear evidence that a thorough investigation was
performed in compliance with the District’s HIB policy (C-1g) and that the facts satisfy
the criteria required under the definition of HIB, as articulated in the statute. N.J.S.A.
18A:37-14. Respondent dismisses the petitioners’ contention that this is simply a Code
of Conduct issue and M.H. “engaged in a campaign of gaslighting (A.V.)” and that
whether some specific evidence was recovered or authenticated is irrelevant to what
was a very reasonable conclusion that he had committed an HIB violation.
Given the “egregious nature of M.H.’s conduct; a one-sided, sexually explicit
gaslighting campaign,” it argues that his behavior “was motivated by his desire to
humiliate (A.V.) and make (her) uncomfortable to return to school.” This was not a
situation, such as the petitioners allege, that is borne out of a routine conflict, but rather

OAL DKT. NO. EDU 13237-24
7
one akin to C.C. o/b/o S.C. v. Jefferson Twp. Bd. of Educ., 2015 N.J. Agen. LEXIS
251 (Mar. 24, 2015), adopted, Comm’r, Agency Dkt. No.: 216-8/14 (May 12, 2015).
Petitioners’ Motion
In his opposition/cross-motion, counsel emphasizes that while M.H. may have
acted in a manner which violated the District’s Code of Conduct, respondent has failed
to demonstrate that his behavior met the required elements of the HIB statute and that
the decision was arbitrary, capricious and unreasonable and therefore should be
overturned.
More specifically, it was argued that “the ongoing conflict between M.H. & (A.V.)
is post-relationship drama, not a violation of the Act.” Instead, the investigation showed
that this was a case of a romantic break-up between young teens who “still had to see
each other day in and day out in four (4) academic classes and neither knew how to
handle it.”
M.H. was struggling to get over (A.V.), and (A.V.) felt
uncomfortable around M.H. . . . It is well settled law that
when a relationship between two students deteriorates or
fails resulting in conflict, or even nasty behavior, such
conflict/behavior inherently is not based on a “distinguishing
characteristic”; therefore, it is not a violation of the Act.
[Pet. brief at pg. 2.]
In support of this position, petitioners cite cases such as K.L. v. Evesham Twp.
Bd. of Educ., 423 N.J. Super. 337 (App. Div. 2011) and R.A. o/b/o B.A. v. Bd. of Educ.
of Twp. of Hamilton, 2016 N.J. Agen LEXIS 284 (May 12, 2016).
In addition to not meeting the “distinguishing characteristic” prong of the HIB
statute, it was argued that the district failed to demonstrate “that M.H.’s conduct
substantially disrupted or interfered with the orderly operation of the school or the rights
of other students.” It was noted that the HIB report does not check that box and that the
facts demonstrate that while A.V. was upset, she also “continued to attend school and

OAL DKT. NO. EDU 13237-24
8
her classes before, during, and after the conflict,” therefore making her “temporary
discomfort and claims of wanting to stay home” insufficient “to rise to the level of
substantial disruption or interference.” W.D. & J. v. Bd. of Educ. of Jefferson, 2020 N.J.
Super. Unpub. LEXIS 1787 (App. Div. Sept. 29, 2020).
LAW AND ANALYSIS
Summary decision may be granted “if the papers and discovery which have been
filed, together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to prevail as a matter of
law.” N.J.A.C. 1:1-12.5(b). The OAL summary decision rule is essentially the same as
the summary judgment rule under the New Jersey Court Rules, which states:
The judgment or order sought shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a
judgment or order as a matter of law. An issue of fact is
genuine only if, considering the burden of persuasion at trial,
the evidence submitted by the parties on the motion,
together with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the issue to
the trier of fact.
[R. 4:46-2(c).]
The New Jersey Supreme Court has modified and clarified the analysis required
when considering a motion for summary decision/judgment. In Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520 (1995), the Court adopted the summary judgment standard
utilized by federal courts:
Under this new standard, a determination whether there
exists a “genuine issue” of material fact that precludes
summary judgment requires the motion judge to consider
whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party,
are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party. The

OAL DKT. NO. EDU 13237-24
9
“judge’s function is not himself [or herself] to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”
[Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S. Ct.
2505, 2511, 91 L. Ed. 2d 202, 212 (1986).] . . . If there exists
a single, unavoidable resolution of the alleged disputed issue
of fact, that issue should be considered insufficient to
constitute a “genuine” issue of material fact for purposes of
R. 4:46-2. Liberty Lobby, supra, 477 U.S. at 250, 106 S. Ct.
at 2511, 91 L. Ed. 2d at 213. The import of our holding is
that when the evidence “is so one-sided that one party must
prevail as a matter of law,” Liberty Lobby, supra, 477 U.S. at
252, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214, the trial court
should not hesitate to grant summary judgment.
[Id. at 540.]
The burden is on the moving party to exclude all reasonable doubt as to the
existence of any genuine issue of material fact, and all inferences of doubt are drawn
against the moving party and in favor of the non-moving party. Saldana v. DiMedio,
275 N.J. Super. 488, 494 (App. Div. 1994). The critical question therefore is “whether
the evidence presents a sufficient disagreement to require [a hearing] or whether it is so
one-sided that one party must prevail as a matter of law.” Brill, 142 N.J. at 533 (citation
omitted). If the non-moving party’s evidence is merely colorable or is not significantly
probative, summary judgment should not be denied. See Bowles v. City of Camden,
993 F. Supp. 255, 261 (D.N.J. 1998).
An action by a local board of education “is entitled to a presumption of
correctness and will not be upset unless there is an affirmative showing that such
decision was arbitrary, capricious or unreasonable.” Thomas v. Morris Twp. Bd. of
Educ., 89 N.J. Super. 327, 332 (App. Div. 1965). Our courts have held that “[w]here
there is room 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 Env’t Prot., 122 N.J.
Super. 184, 199–200 (Ch. Div. 1973), aff’d, 131 N.J. Super. 37 (App. Div. 1974). Thus,
in order to prevail, those challenging a decision made by a board of education “must
demonstrate that the Board acted in bad faith, or in utter disregard of the circumstances
before it.” G.H. & E.H. ex rel. K.H. v. Bd. of Educ. of Franklin Lakes, 2014 N.J. AGEN

OAL DKT. NO. EDU 13237-24
10
LEXIS 19 (Feb. 24, 2014) (citation omitted), adopted, 2014 N.J. AGEN LEXIS
1137 (Apr. 10, 2014). Also, a board’s decision may be overturned if its determination
violates the legislative policies expressed or implied in the governing act. J.A.H. ex rel.
C.H. v. Twp. of Pittsgrove Bd. of Educ., 2013 N.J. AGEN LEXIS 58 (Mar. 11, 2013)
(citing Campbell v. Dep’t of Civil Serv., 39 N.J. 556, 562 (1963)), adopted, 2013 N.J.
AGEN LEXIS 436 (Apr. 25, 2013).2
The Anti-Bullying Act is designed “to strengthen the standards and procedures
for preventing, reporting, investigating, and responding to incidents of harassment,
intimidation, and bullying of students that occur in school and off school premises.”
N.J.S.A. 18A:37-13.1(f). Under the Act, “[h]arassment, intimidation or bullying” is
defined as:
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 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
c. creates a hostile educational environment for the
student by interfering with a student’s education or
2 See R.Z. & L.D. ex rel. minor child, L.Z. v. Northern Valley Reg’l High Sch. Dist. Bd. of Educ., 2025 N.J.
AGEN LEXIS 78 (Feb. 12, 2025), adopted, Comm’r (Apr. 28, 2025), from which much of this section is
borrowed.

OAL DKT. NO. EDU 13237-24
11
by severely or pervasively causing physical or
emotional harm to the student.
[N.J.S.A. 18A:37-14.]
Each school district must adopt a policy that prohibits HIB and provides “a
procedure for prompt investigation of reports of violations and complaints.” N.J.S.A.
18A:37-15(b)(6). 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, but “[t]he principal may appoint additional personnel who are not school
anti-bullying specialists to assist in the investigation.” Ibid. The investigation shall be
completed within ten days of the initial HIB complaint. 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). In particular, “the superintendent may decide to provide
intervention services, establish training programs to reduce [HIB] and enhance school
climate, impose discipline, order counseling as a result of the findings of the
investigation, or take or recommend other appropriate action.” Ibid.
At this point, it is important to note that the interplay of sections (a), (b), and (c) of
the HIB statute was addressed by the Commissioner in Wehbeh v. Bd. of Educ., Twp. of
Verona, 2020 N.J. AGEN LEXIS 50 (Feb. 4, 2020).
[A] finding of [HIB] requires three elements. 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.
[Id. at *7–8 (footnotes omitted).]

OAL DKT. NO. EDU 13237-24
12
The Commissioner explained that “as a matter of standard statutory construction,
the term ‘or’ between subsections (b) and (c) also applies to subsection (a), such that a
demonstration of any of these three criteria can support a finding of HIB.” Ibid. at n.2.
Put another way, for there to be a valid finding of an HIB violation, these things
had to have happened:
1. A reasonable person would perceive that the conduct
was based upon a distinguishing characteristic.
AND
2. The conduct took place on school property.
AND
3. The conduct must substantially disrupt or interfere with
the orderly operation of the school or the rights of other
students.
AND
3a. A reasonable person should know that the conduct
would have the effect of…emotionally harming a
student.
OR
3b. The conduct has the effect of insulting or demeaning
the student.
OR
3c. The conduct created a hostile educational environment
for the student by interfering with the student’s
education or by severely or pervasively causing
emotional harm to the student.
[See generally, Shim v. Ridgefield Pub. Schs. Bd. of Educ.,
2023 N.J. AGEN LEXIS 526 (July 26, 2023), adopted,
Comm’r, 2023 N.J. AGEN LEXIS 441 (Sept. 7, 2023).]

OAL DKT. NO. EDU 13237-24
13
In other words, in order for there to be a cognizable finding of an HIB violation,
respondent must demonstrate that it met prongs 1, 2 and 3 and then any of 3a, 3b or
3c. Any break in the chain causes the charge to fail.
STATUTORY ANALYSIS
Prong 1 − The conduct was reasonably perceived to be based upon a
distinguishing characteristic
This prong is, by far, the biggest hurdle that the respondent must overcome. In
the HIB report, the district concluded that M.H.’s actions constituted an HIB violation on
this basis:
Through this investigation, it is determined that the behaviors
carried out by the named offender are harassing in nature
with the purpose of harming/to upset the named victim. It
does meet the criteria for an HIB as it is motivated by an
actual characteristic of gender and other distinguishing
characteristics as the victim was a target due to a
former relationship with the offender.
[J-F (Emphasis added.)]
The petitioners emphasize that it is undisputed that M.H. and A.V. were
previously in a consensual romantic relationship and that the evidence is very clear
through the investigation that the breakup of that relationship is the source of their
conflict. In fact, the HIB investigation actually cites that as a distinguishing
characteristic.
Petitioners argue that merely because A.V. is female, it does not mean that the
motivation for her alleged harassment is her status as a female. Here, the undisputed
facts demonstrate that the motivation is her status as M.H.’s former romantic partner.
The district’s conclusion is both factually and legally unsupported and therefore
arbitrary, capricious and unreasonable.

OAL DKT. NO. EDU 13237-24
14
One of the first cases to discuss Prong 1 was Melynk v. Teaneck Bd. of Educ.,
2016 U.S. Dist. LEXIS 161524 (D.N.J. Nov. 22, 2016):
On its face, the HIB Policy requires that several factors must
be met before an expression can be found to be
harassment. First, the communication must be “reasonably
perceived as motivated” by an actual or perceived
characteristic. That is to say, the comment must be
objectively perceived to a reasonable person as motivated
by a characteristic.
[Id. at *17−18.]
Melynk was cited with approval in R.H. ex rel. A.H. v. Borough of Sayreville Bd.
of Educ., 2023 U.S. Dist. LEXIS 83587 (D.N.J. May 12, 2023):
First, the communication must be “reasonably perceived as
being motivated either by any actual or perceived
characteristic, such as race . . .” among other things.
N.J.S.A. § 18A:37-14. “The ‘reasonably perceived’ test is an
objective one that has withstood constitutional scrutiny,” and
does not present a vagueness issue. See Melynk v.
Teaneck Bd. of Educ., No. 16-0188, 2016 U.S. Dist. LEXIS
161524, 2016 WL 6892077, at *8 (D.N.J. Nov. 22, 2016)
(collecting cases).
[Id. at 13.]
This result is also alluded to in S.A. v. Bd. of Educ. of Moorestown, 2019 N.J.
Super. Unpub. LEXIS 2114 (App. Div. Oct. 15, 2019). There, in a case involving a
teacher who requested a student’s (poor) test papers as part of his job duties, the Court
concluded that an HIB violation had not occurred, since:
We do not discern sufficient facts to support a conclusion
that any actions by R.L. were motivated by G.A.’s ADHD or
other personal characteristics.
[Id. at *6.]
It further noted that:

OAL DKT. NO. EDU 13237-24
15
even if we presume R.L. was insensitive or even unkind,
there is no evidence R.L. was prompted 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.
[Id. at *7]
As to the differentiation between conflict and HIB in the context of relationship
disputes, there is surprisingly little case law addressing this difference, but what there is,
is clear. K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337 (App. Div. 2011) was
actually an Open Public Records Act (“OPRA”) case, but the underlying dispute
concerned the alleged bullying of the plaintiff’s children. Before ultimately affirming in
part and reversing in part the trial court’s order, the Appellate Division, after reviewing
the specific language of the HIB statute, wrote:
Thus, harmful 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. In this case, the limited factual record
available to us does not permit a conclusive finding as to
whether or not the incidents described in the notes actually
involved "bullying" as defined in the statute.
Id. at 351−52.
While it did not involve a romantic relationship, R.A. on behalf of minor child, B.A.
v. Bd. of Educ. of the Twp. of Hamilton, 2016 N.J. Agen LEXIS 284 (Feb. 10, 2016),
aff’d Comm’r, 2016 N.J. Agen LEXIS 1125 (June 22, 2015) discussed how a soured
interpersonal relationship and its aftermath did not meet the definition of HIB, even if it
was inappropriate and therefore subject to disciplinary consequences. Essentially, B.A.
was a “mean girls” case involving a group of middle schoolers.
However, courts have addressed situations where an act is
not considered to be bullying motivated by a “distinguishing
characteristic.” In L.B.T. ex rel. K.T. v. Board of Education of
the Freehold Regional School District, EDU 7894-12
(January 24, 2013), adopted, Comm'r (March 7, 2013),

OAL DKT. NO. EDU 13237-24
16
http://njlaw.rutgers.edu/collections/oal/, there was a mutual
dispute between two students about their respective roles on
the swim team. The judge held that if a victim was targeted
because of a dispute between the two people involved−such
as a relationship falling apart between former friends, a fight
over a piece of property, or some form of personal vendetta
of one against another−such conduct would not be based on
a “distinguishing characteristic” of the victim and would not
be a violation of the statute. This is because a personal
breakdown in the relationship between two students is a
mutual non-power-based conflict that is not about a
characteristic of the targeted student.
[Id. at *18−19. (emphasis added.); See also, P.F. on behalf
of minor child, D.F. v. High Point Reg. High Sch. Dist. Bd. of
Educ., 2023 N.J. ADMIN LEXIS 135 (Apr. 4, 2023).]
The court in R.A. continued:
a dispute between students such as a relationship falling
apart between former friends, a fight over a piece of
property, or some form of personal vendetta of one against
another is not conduct based on a "distinguishing
characteristic” of the victim and, thus, does not constitute a
violation of the Act. This is because a personal breakdown
in a relationship between students is a mutual non-power-
based conflict that is not about a characteristic of the
targeted student.”
[Id. at *23.]
Another illustrative case is C.S. on behalf of minor child, J.S. v. Lacey Bd. of
Educ., 2019 N.J. Agen. LEXIS 561 (Sept. 5, 2019), adopted, Comm’r (Oct. 16, 2019).
There, during a music class, the alleged female bully plugged her ears and proclaimed,
“I’m going to need earplugs to get through the rest of this part of the concert,” while the
female victim sang her solo. The district found that “[J.S.] targeted [C.H.] who she
viewed as a weaker and emotionally vulnerable female with [J.S.] having a perception of
a characteristic of [C.H.] relating to sexual orientation.” Therefore, Prong 1 of the HIB
statute had been met.

OAL DKT. NO. EDU 13237-24
17
The tribunal disagreed. Even accepting the premise that C.H. was a “weaker
and emotionally vulnerable female” (for which there was next to no proof), the district
ignored the fact that:
. . . the conduct complained of here appears to have arisen
out of the girls' past personal relationship. It is undisputed
that they were close personal friends, with the Committee
characterizing it as a "relationship of some kind with some
form of undetailed intimate characteristics.” The record was
replete with the ups and downs of the girls' relationship
which arguably was the real motivating factor in the conduct
complained of in the HIB complaint.
[Id. at *17.]
The district’s finding was then reversed. Id. at *18.
Rather, it was a result of the bully and the victim’s past intimate relationship
falling out. Ibid. In that case, the record was “[r]eplete with ups and downs of the girls’
relationship, and the evidence did not suggest that the victim’s weak or vulnerable
characteristics at all motivated the bully to plug her ears and comment as to the victim’s
singing skills. Id. at *16. The ALJ noted that “there must be something more linking the
conduct to the characteristic, and that link is notably absent here.” Id. at *17.
This issue was also discussed in C.H. v. Burlington Cnty. Inst. of Tech.,
2019 N.J. Super. Unpub. LEXIS 2543 (App. Div. 2019). This is actually a Law Against
Discrimination (“LAD”) case, but it arose out of a claim that C.H., a student at Burlington
Tech, “was subject to harassment because of her gender.” Id. at *1. The base story
was that C.H. was a “cordial friend” of Simon, who was dating Cassie. Cassie was,
perhaps understandably, unhappy about that “cordial friendship” and told C.H. in no
uncertain terms to break off contact. She then proceeded to insult practically everything
about C.H., including her looks, as well as impugning her reputation.
The matter was referred to Jeff Pensabene, BCIT's
Harassment, Intimation, and Bullying (HIB) specialist and a
student assistant counselor, ()3 who began an investigation
3 Footnote omitted. It merely cites the definition of HIB as per N.J.S.A. 18A:37-14.

OAL DKT. NO. EDU 13237-24
18
in October 2014. As part of that investigation, plaintiff wrote
a letter explaining the situation: [Cassie] hates me because
of her boyfriend. She is mad I was talking to her boyfriend
when they were broken up, so she called me a whore, bitch,
skank, and a bunch of other stuff. She told me my pants
were too tight and I was too skinny, and my belt gave me [a]
muffin top. Then she commented on my Instagram
message, wrote that I looked like a cheese stick and my
eyes are cocked like a pistol. Cassie also prepared a
statement, explaining: It started because [plaintiff]
[F]acetime[d] my boyfriend and I asked her to stop. So I
asked her sister[,] [Brie] to talk to [plaintiff] and . . . asked
[her] to stop talking to my boyfriend. [Brie] got angry and
started saying stuff. I called [plaintiff] [a] slut over the
summer and then apologized. [Plaintiff] wouldn't accept it. . .
. I did call her [a] dumb cunt and dumb bitch in [I]nstagram
text. I did call her muffin top via [I]nstagram.
[Id. at *3−4.]
The negative interactions continued. Mr. Pensabane testified at trial, and the
Court summarized what aspects of the same it thought were significant:
We provide certain relevant portions of Pensabene's
testimony. He testified that during plaintiff's junior year, he
met with her about thirty times. He informed the jury of the
differences between a “student conflict” and HIB, explaining
that “[s]tudent conflicts happen all the time; kids just don't get
along with one another.” As an anti-bullying specialist,
Pensabene explained he is required to “interview all the
parties and find out what happened.” He clarified that not
every HIB complaint warrants an investigation, but when it
does, he looks for two things: 1) “ an imbalance of power
such as a senior over a freshman” and 2) “distinguishing
characteristics” like race or body image issues.
[Id. at *8−9.]
The Court continued:
Pensabene explained that he classified the February
2015 Instagram incident as a student conflict because there
was “no distinguishing characteristic.” The September
2015 exchange with Martha was also not HIB because
“[h]anging out with [Martha's] cousin is not a distinguishing
characteristic.” In contrast, he advised the November

OAL DKT. NO. EDU 13237-24
19
Instagram post about plaintiff's homecoming dress violated
HIB because the comments related to plaintiff's appearance.
Pensabene further testified that calling a female student a
bitch, cunt, whore, or slut would be classified as a conflict
rather than a distinguishing characteristic warranting HIB. At
the high school level, Pensabene noted the word “bitch” was
not associated exclusively with females; he stated that male
students referred to other male students as “bitch” “[a]ll the
time.”
[Id. at *10.]
The major point of contention in the appeal was the jury charge and the “because
of” language concerning the plaintiff’s gender:
The discussion centered on the following language of the
charge. “First, plaintiff must prove that the conduct occurred
because of her/his [gender]. Stated differently, plaintiff must
prove that the conduct would not have occurred if her/his
[gender] had been different. When the harassing conduct
directly refers to the plaintiff's [gender], the ‘because of’
element is automatically satisfied.” (emphasis added).
[Id. at *11.]
Part of the discussion was, because this was a school-related incident, whether
the language in L.W. ex rel. L.G. v. Toms River Reg’l Sch. Bd. of Educ., 189 N.J.
381 (2007) (another LAD case) should be utilized. That was permitted and allowed the
defendant to “show that plaintiff was not being harassed because of her gender, but
because of a love triangle between three high school students and the actions that
ultimately led to the conduct.” C.H. at *24.
The Appellate Division, while finding an error in the language of one aspect of the
jury charge, noted that ultimately the jury was not confused and the charge “adequately
conveyed the law.” Id. at *29. The approved aspect of the charge was consistent with
Mr. Pensabane’s testimony:
“However, the law recognizes that offensive, crude or
inappropriate comments are not automatically discriminatory

OAL DKT. NO. EDU 13237-24
20
because the words used are tinged with sexual or gender
connotations.”
[Id. at *28.]
While I am fully cognizant that this is an HIB case and not a LAD case and there
are distinctly different elements necessary to prove a claim, the “because of” issue is
common to both of them.
Before proceeding further, I would be remiss in failing to point out that, despite
respondent’s contention that the petitioners’ argument concerning Prong 1 of the HIB
statute is “abhorrent,” it absolutely is not. (Resp’t’s Br. at 9.) Trying to justify M.H.’s
behavior would certainly have been a disturbing tactic but arguing that the behavior
does not meet the four corners of the statute is called “lawyering.”
Very simply, no matter the hyperbolic descriptions in respondent’s brief, this is a
“student conflict” case. The investigation demonstrates that M.H. and A.V. were two
immature, barely teenagers who acted like two immature, barely teenagers, with M.H.
openly and obviously crossing a behavioral line, earning him a thoroughly deserved
one-day in-school suspension. What is also obvious from the investigation is that A.V.’s
status as a female is purely incidental to her status as M.H.’s ex-girlfriend. In other
words, the evidence is crystal clear that M.H. was not treating A.V. poorly because
she’s a female; he was treating her poorly because she is his ex-romantic partner and
any reasonable person would make that determination.
If every high school breakup that ended with nasty overtones and the
party/parties saying unkind things about the other was considered a violation of the
statute, then we would be hearing nothing but HIB cases in the OAL. What is often
forgotten in these cases is that merely because an action is not found to be HIB, it does
not mean that it’s acceptable or should/will go without punishment. In fact, this is the
EXACT type of case that school codes of conduct were meant to apply to. The parties
broke up; M.H. handled it poorly and acted like a. . . jerk.

OAL DKT. NO. EDU 13237-24
21
There is nothing magical about an HIB finding that prevents a District from
formulating an appropriate punishment for a code of conduct violation, especially a
repeated one. Frankly, the fact that he received only a one-day suspension given his
repeated conduct is puzzling, regardless of the HIB finding.
The one case cited by the respondent, C.C. o/b/o S.C. v. Jefferson Twp. Bd. of
Educ., 2015 N.J. Agen. LEXIS 251 (Mar. 24, 2015), while accurate, is also clearly
factually distinguishable. There, two middle school boys were found guilty of HIB
violations concerning A.V. One of the boys, S.C., filed a petition of appeal. The boys
were accused of telling A.V. that he would only grow to be about 4’11’’, can’t be in
middle school because he’s too short, that he was bad at basketball and would never
make the National Basketball Association and that he would drop out of college and
become a drug dealer. He was also called stupid, dumb and a loser.
The accused boys denied some of the allegations and claimed that while some of
the other statements were made, they were made in a joking, non-serious manner. The
school’s HIB specialist found that “(m)ost of the student statements focused on
comments by D.S. regarding characteristics of (A.V.).” He noted those characteristics
to be “height, basketball skills, and intelligence.” On appeal, the petitioners argued,
amongst other things, that S.C.’s behavior “was not an act of HIB but was rather
reflective of an ongoing unresolved conflict between the students involved.”
The ALJ determined that there was “ample evidence. . . that S.C. engaged in
verbal acts that are reasonably motivated by distinguishing characteristics of height,
intelligence, and sports proficiency.” He therefore determined that the District’s HIB
determination was not arbitrary, capricious or unreasonable and upheld that finding.
There is, frankly, very little about that case that is applicable to this situation. For
one thing, there were continued references to the A.V.’s diminutive stature, which,
particularly when connected to the basketball issue, was not unreasonably determined
to be a distinguishing characteristic under the broad interpretation of the statute.

OAL DKT. NO. EDU 13237-24
22
That is simply not the dynamic in the M.H./A.V. situation and the final
determination by the district on this prong demonstrates its
misunderstanding/misinterpretation of the statute. “Ex-romantic partner” is obviously
not a distinguishing characteristic, yet it is listed as one and the mere fact that A.V. is
female does not make her gender a distinguishing characteristic.
Ultimately, I FIND that in order to find that the first prong of the statute has been
satisfied, an investigating body must view the evidence in its entirety and determine
whether a reasonable person could perceive that the conduct could be “motivated by an
actual or perceived characteristic.”
Considering both the law and the totality of the circumstances, I FIND that no
reasonable person could conclude that M.H.’s actions were motivated by A.V.’s gender
and not her status as his ex-romantic partner. Any determination to the contrary defies
both logic and the law and is by definition arbitrary, capricious and unreasonable.
That determination in and of itself is sufficient to warrant a dismissal of the case.
However, for the sake of completeness, I will briefly review the balance of the prongs.
Prong 2 – Location of the Conduct
That the second prong of the HIB statute, concerning the location of the incident,
has been met is unchallenged, since the conduct occurred in large part at the high
school.
Prong 3 – The conduct substantially disrupted or interfered with the orderly
operation of the school or the rights of other students.
Here, frankly, is the respondent’s second most difficult issue, although it is a
distant, distant second. Per the HIB report, A.V. claimed: “that she does not want to
come to school, feels very uncomfortable around (M.H.).” (J-F.) Complicating the
matter is that Section 4D of the report “Effect of HIB Incident” is not completed. In
reviewing the interviews, it was noted that she was upset at her mother for reporting

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M.H.’s harassment. However, as that initial March 20, 2024, interview progressed, she
also detailed that his actions were clearly disrupting her learning experience, particularly
since they were in four classes together.
This disruption was also noted in the interviews with some of the other students
as well as her teachers, one of whom described her developing a possible paranoia.
Other students were brought into the dispute to the point where pretty much their entire
social circle and teachers were aware of the ongoing issues. (J-B.)
While the HIB report itself was woefully incomplete, to be fair, the investigation
was not. In fact, it was rather comprehensive, which is what potentially saved
respondent’s case concerning this prong of the statute.
The “substantially disrupt[ed] or interfere[d] with the orderly operation of the
school or the right of other students” prong also has only been examined on a relatively
limited basis. One case that discusses the same in detail is R.R. ex rel. A.R. v. Bd. of
Educ. of the Borough of Ramsey, 2024 N.J. AGEN LEXIS 72 (Jan. 29, 2024), adopted,
Comm’r No. 131-24 (Mar. 8, 2024). There, a 5th-grade student was accused of telling a
Black classmate that “Black is bad.” While he denied saying it, the ALJ found that the
A.V. was credible and that the district’s conclusion that an act of HIB had occurred was
not arbitrary, capricious or unreasonable.
In addition to wrestling with the “he said – she said” nature of the accusation in
that case, the ALJ had the most difficulty with Prong 3, writing:
The second element is arguably less clear because the HIB
report did not state that the incident created a “substantial
interruption in the ordinary operation of the school or in the
disruption of the victim's education or the rights of other
students.” However, the school maintains that A.R.’s
conduct not only created a hostile educational environment
for the victim, but to its students, meeting this prong of the
statutory analysis. The incident was a limited one-time
comment and did not begin a series of events at the school.
However, the victim was crying at the time and “felt off” the
rest of the day. Other students became involved after the

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24
unsettling incident took place in response to the victim's
distress. In D.D.K. o/b/o D.K. v. Board of Education of the
Township of Readington, Hunterdon County, EDU 07682-15
(October 6, 2016), adopted, Comm'r Decision (November
11, 2016), https://njlaw.rutgers.edu/collections/oal/, the
Commissioner discussed those situations where the Board's
HIB determination satisfied the second prong, explaining
that:
[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.
[Id. at *15–17.]
The Commissioner’s decision adopting the ALJ’s decision concentrated on the
petitioners’ exceptions to the ruling, which focused solely on whether the incident had
occurred as claimed by A.V. and not on the statutory requirements of the HIB finding.
R.R. ex rel. A.R. v. Bd. of Educ. of the Borough of Ramsey, Comm’r No. 131-24 (Mar. 8,
2024).
Prong 3 was also addressed in R.P. ex rel. A.P. v. Bd. of Educ. of Twp. of
Hamilton, 2018 N.J. AGEN LEXIS 83 (Feb. 13, 2018), adopted, Comm’r, 2018 N.J.
AGEN LEXIS 346 (Mar. 29, 2018). That matter involved a ten-year-old student who
was exposed to repeated sexual innuendo and gestures by another student. She wrote
a letter to the school “urgently seeking help . . . due to A.P.’s ongoing inappropriate
behavior. Through this letter and confirmed during her interview with [a school official],
S.W. expressed her extreme discomfort and distress over A.P.’s ongoing conduct.”
R.P., 2018 N.J. AGEN LEXIS 83 at *14. Given the severity of the harassment, the

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25
tribunal found that the student’s “extreme discomfort and distress” was sufficient to
satisfy the “disruption” prong. Ibid. See also W.D. & J.D., 2020 N.J. Super. Unpub.
LEXIS 1787.
Here, as noted above, the negative interactions between M.H. and A.V. were well
known in the school, both amongst their friends and their teachers, and there was
clearly ongoing drama that impacted A.V.’s “availability for learning.” Was it
“substantially disruptive?”
The petitioners equate this situation to that in W.D. & J.D., where the Court held:
[T]he record does not establish G.D. suffered any significant
impact beyond being rightfully upset following the incident
and wanting to avoid resulting awkwardness at school the
next day. Nor is there evidence the incident interfered with
G.D.’s ability to safely and effectively learn. Petitioners are
therefore unable to demonstrate the incident substantially
disrupted or interfered with the orderly operation of the
school or the rights of G.D.
[Id. at *15.]
This is by no means a slam dunk and there is an argument to be made that with
A.V. not missing school, not complaining herself (the investigation started with her
mother’s request for a welfare check) and with no evidence of an impact on her grades
(and no request to have M.H. moved or to move herself to limit their interactions), that
this prong has not been met. However, a review of the evidence reveals that perhaps a
more persuasive case can be made that this prong has been met and with the
deference due to the District, I FIND that the petitioners have failed to prove by a
preponderance of the credible evidence that the District abused its discretion in finding
that Prong 3 has been met and that its decision was arbitrary, capricious or
unreasonable. There is clearly enough evidence, even if it is not overwhelming, to
support the district’s decision.
Prong 3a – A reasonable person should know that the conflict would have the
effect of…emotionally harming a student.

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26
Prong 3b – The conduct has the effect of insulting or demeaning the student.
Prong 3c – The conduct created a hostile educational environment for the student
by interfering with the student’s education or by severely or pervasively causing
emotional harm to the student.
As with Prongs 2 and 3, with the District’s failure to meet Prong 1 of the HIB test,
there is no need to review Prongs 3a, 3b, and 3c. However, I would note that in order
for there to be a finding of an HIB violation, only one of those three prongs has to be
satisfied. Here, there is no legitimate question that Prongs 3a and 3b were met and
while there may be a question about Prong 3c, I FIND that this aspect of the HIB statute
has been met.
The support for a violation of Prong 3c is clearly not as strong as Prongs 3a and
3b, but with those findings, whether Prong 3c is met is doubly irrelevant.
CONCLUSION
This decision should in no way be read as an exoneration of M.H. or seen as
condoning his behavior. Clearly, his actions went beyond the usual “hard feelings” or
badmouthing that can occur after a less-than-amicable breakup, and he should have
been and was punished for it. However, what his actions did not do was violate the very
specific strictures of the HIB statute.
Ultimately, I CONCLUDE that petitioners have demonstrated that respondent’s
determination that M.H.’s actions constituted a violation of N.J.S.A. 18A:37-13.2 to -37
was arbitrary, capricious and unreasonable. More specifically, the finding that M.H.’s
actions violated Prong 1 of the HIB statute was based on a misapplication of the facts to
the law and a misunderstanding of the law itself. That led to the mistaken determination
that M.H.’s actions would be perceived by a reasonable person to have been based
upon A.V.’s status as a female, rather than her status as M.H.’s former romantic
partner.

OAL DKT. NO. EDU 13237-24
27
ORDER
Based on the foregoing, it is hereby ORDERED that respondent’s Motion for
Summary Decision be and is hereby DENIED and;
It is further ORDERED that petitioners’ Cross-Motion for Summary Decision be
and is hereby GRANTED and;
It is further ORDERED that respondent’s determination that M.H. committed an
act of HIB in violation of N.J.S.A. 18A:37-13.2 to -37 (the Anti-Bullying Bill of Rights Act)
be and is hereby REVERSED.
I hereby FILE this initial decision with the COMMISSIONER OF THE
DEPARTMENT OF EDUCATION for consideration.
This recommended decision may be adopted, modified, or rejected by the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. If the Commissioner of the Department of
Education does not adopt, modify, or reject this decision within forty-five days and
unless such time limit is otherwise extended, this recommended decision shall become
a final decision in accordance with N.J.S.A. 52:14B-10.

OAL DKT. NO. EDU 13237-24
28
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION. 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.
April 28, 2026
DATE MATTHEW G. MILLER, ALJ
Date Received at Agency: April 28, 2026
Date Mailed to Parties: April 28, 2026
sej

OAL DKT. NO. EDU 13237-24
29
APPENDIX
EXHIBITS
Joint:
J-A Letter from respondent to petitioners advising of HIB investigation (March
25, 2024)
J-B 2023−2024 HIB # 7 Notes for the HIB investigation
J-C Undated picture of an unidentified phone showing a social media
conversation allegedly between M.H. and an unidentified student provided
by respondent
J-D Two undated pictures of an unidentified phone showing a social media
conversation allegedly between M.H. and an unidentified student provided
by respondent
J-E Undated picture of an unidentified phone showing a social media
conversation allegedly between M.H. and an unidentified student provided
by respondent
J-F HIB Report (April 11, 2024)
J-G Minutes of the Kinnelon BOE’s meeting of April 25, 2024, accepting the
Superintendent’s recommendation to confirm the HIB Report on first
reading for the March 20, 2024, incident
J-H Letter from respondent to petitioners advising of the Board’s April 26,
2024, decision
J-I Minutes of the Kinnelon BOE’s meeting of May 21, 2024, accepting the
Superintendent’s recommendation to confirm the HIB report on second
reading
J-J Letter from respondent to petitioners advising of the Board’s finding on
second reading. (June 10, 2024)
Court:
C-1 E.H. and C.H. o/b/o M.H. v. Kinnelon Bd. of Educ. Petition of Appeal (July
30, 2024)

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C-1a Same as J-A.
C-1b Same as J-J.
C-1c Same J-F.
C-1d Same as J-G.
C-1e Same as J-H.
C-1f Same as J-I.
C-1g Kinnelon BOE Policy # 5512 (Harassment, Intimidation & Bullying)
C-2 Respondent Answer to Petition of Appeal (September 13, 2024)
For petitioners:
None
For respondent:
None