D.S., on behalf of minor child, L.S. v. Board of Education of the Borough of Hawthorne, Passaic County, 7/29/26 (#277-26)

277-26
OAL Dkt. No. EDU 05349-26 (EDU 13921-25 on remand)
Agency Dkt. No. 226-7/25
New Jersey Commissioner of Education
Final Decision
D.S., on behalf of minor child, L.S.,
Petitioner,
v.
Board 	of 	Education 	of 	the 	Borough 	of
Hawthorne, Passaic County,
The Board.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL)
issued after remand, the exceptions filed by petitioner pursuant to N.J.A.C. 1:1-18.4, and the
Hawthorne Board of Education’s (Board) reply thereto, have been reviewed and considered.1
In this matter, petitioner appeals the Board’s decision to suspend her minor child, L.S., for
three days following a bias-related incident. When arguing with another student in class about
playing basketball, L.S. told the other student: “I would whoop you in basketball just like how I
whooped you in the 1800’s.” During the ensuing investigation conducted at school, L.S. admitted
to making this statement, which was also overheard by his classmates. The Board determined
that L.S.’s conduct did not constitute harassment, intimidation, or bullying (HIB) because the
1 The Commissioner remanded the matter to the OAL on March 30, 2026, for clarification regarding the
date the record was closed and whether the Administrative Law Judge (ALJ) considered petitioner’s
January 9, 2026, written submission. On remand, the ALJ clarified that she fully considered the submission
before closing the record.

2
conduct did not substantially disrupt or interfere with the school operations or rights of other
students. 	However, the Board imposed a three-day out-of-school suspension upon L.S. for
violating the code of student conduct (Code).
Petitioner’s appeal seeks expungement of the suspension on the grounds that it was
based on selective enforcement, flawed investigative procedures, and a mischaracterization of
L.S.’s actions. After the matter was transmitted to the OAL, the Board filed a motion for summary
decision, which petitioner opposed. The ALJ granted the Board’s motion for summary decision
and ordered that the petition be dismissed. At the outset, the ALJ found that petitioner never
alleged in the appeal that the Board’s actions were arbitrary, capricious, and unreasonable. The
ALJ nonetheless reviewed the Board’s actions and concluded that it did not act arbitrarily,
capriciously, or unreasonably. 	While the ALJ recognized that petitioner disagreed with the
discipline imposed for various reasons, the ALJ found that such disagreement does not establish
that the Board acted unreasonably or with an improper motive.
In her exceptions, petitioner requests a remand for further proceedings and argues that
the ALJ’s decision neither fully addresses the arbitrary, capricious, or unreasonable standard nor
whether the disciplinary determination was consistent with the investigative findings. Petitioner
claims that it was alleged in her appeal papers that the Board’s conduct was arbitrary, capricious,
or unreasonable, and that the record reflects mutual misconduct by both L.S. and the victim.
However, only L.S. was suspended, and the ALJ’s decision does not meaningfully analyze the
Board’s selective enforcement of the Code. In addition, petitioner asserts that genuine issues of
material fact regarding the students’ conduct, the significance of corroborating witness

3
statements, and whether similarly situated students were treated consistently under the Code
precluded summary decision.
In reply, the Board argues that the Initial Decision should be adopted because the ALJ
correctly determined that petitioner failed to allege in the appeal papers that the Board’s actions
were arbitrary, capricious, or unreasonable, and correctly determined based upon the record
that the Board did not act arbitrarily, without rational basis, or with improper motives. The Board
asserts that no material facts are disputed, and that no additional facts are necessary to decide
this case. Moreover, the Board contends that petitioner’s claims about the Board’s treatment of
other students under the Code are not the subject of this appeal.
Upon review, the Commissioner adopts the Initial Decision as the final decision in this
matter for the reasons explained herein. 	The Legislature granted local boards of education
sweeping authority to enact rules regarding operation of their public schools. N.J.S.A. 18A:11-
1(c), (d); Bd. of Educ. of City of Plainfield v. Cooperman, 105 N.J. 587, 596 (1987). Boards may
suspend a student from school if the student’s conduct constitutes “good cause” for suspension.
N.J.S.A. 18A:37-2. While the statute lists several examples of conduct that satisfy the good cause
standard, boards may suspend a student for other reasons so long as the good cause standard is
met. State education regulations require boards to implement a code of student conduct aimed
at “foster[ing] the health, safety, and social and emotional well-being of students,” which must
establish parameters for discipline and include a description of conduct that will result in
suspension. 	N.J.A.C. 6A:16-7.1. 	In this case, the Board’s Code defines a bias incident as any
communication directed at a person on the basis of New Jersey’s nine protected classes,

4
including race. The Code requires a 1 to 4 day out-of-school suspension for a first offense, along
with a HIB investigation.
Board action conducted within the ambit of its broad discretionary authority “may not be
upset unless 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). Board determinations are
“entitled to a presumption of correctness.” Thomas v. Bd. of Educ. of Twp. of Morris, 89 N.J.
Super. 327, 332 (App. Div. 1965), aff’d, 46 N.J. 581 (1966). The heavy burden of demonstrating
that board action was arbitrary, capricious, or unreasonable rests upon the petitioner. 	“[T]o
prevail, petitioner[] must demonstrate that the Board acted in bad faith, or in utter disregard of
the circumstances before it.” G.H. and E.H., on behalf of K.H. v. Bd. of Educ. of Borough of Franklin
Lakes, Bergen Cnty., EDU 13204-13, Initial Decision at 20 (Feb. 24, 2014), adopted, Comm’r, Final
Decision No. 157-14 (Apr. 10, 2014).
Petitioner’s exceptions, which do not include citation to any legal authority, are
unavailing. A hearing was not necessary to establish the material facts in this matter when L.S.
admitted to making the comment. 	While petitioner is entitled to disagree with the Board’s
decision, the Commissioner concurs with the ALJ that said disagreement does not establish that
the suspension was arbitrary, capricious, or unreasonable. 	Furthermore, the Commissioner
agrees with the ALJ that no genuine issues of material fact exist. The crux of petitioner’s objection
is that her son was suspended for his comments while the victim was not suspended for his
comments. According to petitioner, this shows that the Board is selectively enforcing the Code.
However, petitioner’s position is not supported by the record. Petitioner failed to establish that

5
the Board selectively enforced the Code or otherwise acted in bad faith or in utter disregard of
the circumstances.
While it is undisputed that the victim called L.S. a “skinny Lizzo” and was not disciplined
for that comment following a HIB investigation, that fact does not warrant the conclusion that
the Board’s suspension of L.S. was arbitrary, capricious, or unreasonable.2 	The incidents are
entirely different. The victim’s comment to L.S. did not constitute a bias-related incident under
the Code. However, L.S.’s comment to the victim based on his race did constitute a bias-related
incident under the Code. The Board had good cause to suspend L.S., and the discipline imposed
was consistent with the investigative findings contained in the record. 	By conducting a HIB
investigation and suspending L.S. for a first offense bias-related incident, the Board fully adhered
to its Code.
Accordingly, the Initial Decision is adopted at the final decision in this matter, the Board’s
motion for summary decision is granted, and the petition of appeal is hereby dismissed.
IT IS SO ORDERED.
COMMISSIONER OF EDUCATION
Date of Decision: 	July 29, 2026
Date of Mailing: 	July 29, 2026
2 According to the victim, a “skinny Lizzo is when you eat a lot but still look skinny.” The Commissioner
does not condone the use of body-shaming language of any kind.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 05349-26
AGENCY DKT. NO. 226-7/25
(On Remand EDU 13921-25)
D.S., ON BEHALF OF MINOR
CHILD L.S.,
Petitioner,
v.
BOARD OF EDUCATION OF THE
BOROUGH OF HAWTHORNE,
PASSAIC COUNTY,
Respondent.
___________________________
D.S., petitioner, pro se
Brian Gauthier, Esq., for respondent (Fogarty, Hara, LaPira & Cherry, attorneys)
Record Closed: April 8, 2026 	Decided: May 13, 2026
BEFORE: KIMBERLY K. HOLMES, ALJ
STATEMENT OF THE CASE
The petitioner appealed respondent’s decision to suspend the minor child under
the Code of Conduct policy based on an inappropriate statement made to another student

OAL DKT. NO. EDU 13921-25
2
during an argument in school concerning basketball. Must the decision stand? Answer.
Yes. 	When a Board acts within its discretion, its decision must stand unless “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); N.J.A.C. 1:1-125(b).
PROCEDURAL HISTORY
On January 8, 2025, petitioner and another student were arguing in class about
who could beat whom in basketball. 	At that time, petitioner told the student, “I would
whoop you in basketball just like how I whooped you in the 1800’s.” 	After a thorough
investigation, respondent decided that while the HIB allegation was unfounded, the
petitioner violated the school’s Code of Conduct policy which resulted in a three-day
suspension of the petitioner’s minor child.
On July 9, 2025, petitioner filed a petition of appeal with the Department of
Education, 	Board 	of 	Controversies 	and 	Disputes, 	challenging 	the 	respondent’s
determination.
On July 30, 2025, the Board of Controversies and Disputes transmitted the case
to the Office of Administrative Law (OAL), which was received on August 4, 2025, as a
contested case under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to-15, and the
Act establishing the OAL, N.J.S.A. 52:14F-1 to-13, for a hearing under the Uniform
Administrative Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6.
On September 11, 2025, and October 16, 2025, I held prehearing conferences and
scheduled a hearing for January 20, 2026, and January 21, 2026.
On December 19, 2025, the Board filed a motion for summary decision. 	On
December 25, 2025, petitioner filed an opposition. 	On January 5, 2026, the Board filed
its response, I received it on January 7, 2026. 	On January 5, 2026, the petitioner
submitted a request to send a Reply in response to the Board’s Reply Brief of January 5,

OAL DKT. NO. EDU 13921-25
3
2026. I granted the petitioner’s request. On January 9, 2026, I received petitioner’s Reply
in response to the Board’s Reply Brief of January 5, 2026, and closed the record.1
On January 21, 2026, I issued my Initial Decision.
On March 30, 2026, this matter was remanded “for clarification regarding the date
the record was closed and whether “[I] considered the petitioner’s January 9, 2026, written
submission before completing [my] Initial Decision.”2
FINDINGS OF FACT
In considering the papers submitted in support of and in opposition to the motion
for summary decision, and in viewing the evidence in the light most favorable to petitioner,
I FIND the following as FACT for purposes of this motion only:
On January 8, 2025, petitioner and another student were arguing in class about
who could beat whom in basketball. 	At that time, petitioner told the student, “I would
whoop you in basketball just like how I whooped you in the 1800’s.”
After a thorough investigation, respondent decided that the HIB allegation was
unfounded although three (3) other students stated that petitioner’s minor child made
similar statements concerning “whooping” another student “like I did in the 1800’s.”
The respondent determined that the conduct of petitioner’s minor child did not
substantially disrupt or interfere with the school operations or rights of other students.
On January 17, 2025, the respondent determined that while the HIB allegation was
unfounded, the petitioner’s minor child violated the school’s Code of Conduct policy which
resulted in a three-day out-of-school suspension of the minor child.
1 After reviewing my original Initial Decision under OAL Dkt. No. EDU 13921-25, I realized the typographical
error regarding the record closed date which should have been January 9, 2026.
2 Pursuant to my email dated January 5, 2026, I advised petitioner that his response is due on or before
Friday, January 9, 2026, which was submitted timely and accepted.

OAL DKT. NO. EDU 13921-25
4
On January 17, 2025, and February 18, 2025, the petitioner’s communication with
respondent was a grievance appeal of the discipline the minor child received.
On February 18, 2025, the respondent determined that the statements made by
the minor child were bias related under the Discipline Code of the school and that the
three-day out-of-school suspension would stand.
On April 2, 2025, the petitioner requested that the January 8, 2025, incident be
expunged because there was no harm to the other student and no corroboration that the
statement made by the minor child was bias-related. 	The petitioner alleged for the first
time that her minor child was targeted because the minor child is Muslim.
On April 25, 2025, the respondent rejected the new allegation of the petitioner
concerning her minor child being targeted because of being a Muslim. 	The respondent
also told the petitioner that there was corroborating evidence to support its decision that
the statement made by the minor child was racially biased and in violation of the school’s
Code of Conduct.
On June 2, 2025, petitioner made another request for the respondent to reconsider
the decision to suspend their minor child and to remove the disciplinary points received.
The petitioner’s husband admitted that the minor child’s statement was “inappropriate”
but that the investigation was not conducted properly as their minor child was treated
unfairly.
On June 2, 2025, the respondent found no basis to reverse or modify the decision
to suspend their minor child or to remove the disciplinary points received.
On June 27, 2025, the respondent notified the petitioner in writing that, after having
reviewed the appeal request, the decision would stand.
On January 5, 2026, the Board filed its response which was received it on January
7, 2026.

OAL DKT. NO. EDU 13921-25
5
On January 5, 2026, the petitioner submitted a request to send a Reply in response
to the Board’s Reply Brief of January 5, 2026. 	I granted the petitioner’s request (email
attached).
On January 9, 2026, I received petitioner’s Reply in response to the Board’s Reply
Brief of January 5, 2026, and closed the record.
The petitioner’s submission of January 9, 2026, was fully considered before
completing my Initial Decision of January 21, 2026.
CONCLUSIONS OF LAW
When a local board of education acts within its discretionary authority, its decision
is entitled to a presumption of correctness that 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). 	To overcome that presumption, the petitioner must prove by a
preponderance of the evidence that the board “acted in either bad faith or in disregard to
the circumstances.” 	T.B.M. v. Moorestown Bd. of Educ., EDU 2780-07 (February 6,
2008), aff’d, Comm’r (April 25, 2013) (citing Thomas v. Morris Twp. Bd. of Educ., 89 N.J.
Super. 327, 332 (App. Div. 1965), aff’d, 46 N.J. 581 (1966). In other words, the burden
is a heavy one.
In this case, the petitioner did not allege that the respondent’s actions were
arbitrary, capricious or unreasonable in this appeal. 	Nevertheless, after a thorough
investigation, respondent decided that the HIB allegation was unfounded although three
(3) other students stated that petitioner’s minor child made similar statements concerning
“whooping” another student “like I did in the 1800’s.” The respondent determined that the
conduct of petitioner’s minor child did not substantially disrupt or interfere with the school
operations or rights of other students. On January 17, 2025, the respondent determined
that while the HIB allegation was unfounded, the petitioner’s minor child violated the
school’s Code of Conduct policy which resulted in a three-day out-of-school suspension

OAL DKT. NO. EDU 13921-25
6
of the minor child. Therefore, I CONCLUDE that the Board did not act arbitrarily, without
rational basis, or induced by improper motives, and that its HIB determination and Code
of Conduct determination must stand.
A party may move for summary decision upon any or all substantive issues in a
contested case. N.J.A.C. 1:1-12.5(a). The motion for summary decision shall be served
with briefs and may be served with supporting affidavits. Ibid. “The decision sought may
be rendered 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).
In this case, petitioner disagrees with the respondent’s decision that the minor
child’s statement to another student violated the school’s Code of Conduct policy. That
does not mean that the respondent’s actions were absent on a rational basis or that there
was an improper motive. In short, the petitioner has not demonstrated that the respondent
acted in an arbitrary, capricious or unreasonable manner. Therefore, I CONCLUDE that
no genuine issue of material fact exists and that the respondent is entitled to summary
decision as a matter of law.
ORDER
Given my findings of fact and conclusions of law, I ORDER that respondent’s
motion for summary decision is GRANTED and that this case is DISMISSED.
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 13921-25
7
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.
May 13, 2026
DATE 	KIMBERLY K. HOLMES, ALJ
Date Received at Agency:
Date Mailed to Parties:
as