E.H. and B.H. v. Board of Education of the Township of Jefferson, Morris County, 5/30/2024, (#212-24)

212-24
New Jersey Commissioner of Education
Final Decision
E.H. and B.H., on behalf of minor child, J.H.,
Petitioner,
v.
Board of Education of the Township of Jefferson,
Morris County,
Respondent.
Synopsis
Petitioners challenged the determination of the respondent Board that their son, a fifth grade student
during the 2022-2023 school year, committed an act of harassment, intimidation, and bullying (HIB),
pursuant to the Anti-Bullying Bill of Rights Act (Act), N.J.S.A. 18A:37-13 et seq, against a female
classmate when he placed his hands in her lap. 	Petitioners contended that their son did not fully
understand his conduct because he suffers from behavioral dysregulation and other disabilities. They
sought to set aside the Board’s decision and have the HIB finding removed from J.H.’s school record.
The ALJ found, inter alia, that: 	an action by a board of education is entitled to a presumption of
correctness and will not be undermined unless it can be shown that the decision was arbitrary,
capricious or unreasonable; under the Act, an HIB finding requires the demonstration of three elements:
1) the conduct must be reasonably perceived as motivated by any actual or perceived enumerated
characteristic or other distinguishing characteristic, 2) the behavior must substantially disrupt or
interfere with the rights of other students or the orderly operation of the school, and 3) the conduct
must satisfy one of the three criteria enumerated in the Act regarding the effect of the conduct; in this
case, the incident undeniably took place on school grounds as it was recorded on a video camera in the
school hallway; the female victim could reasonably perceive J.H.’s actions, i.e. touching the area of her
“private parts”, to be motivated by her gender; the victim reported being scared and uncomfortable
because of J.H.’s physical contact; she was reluctant to attend school the next day and requested to be
excused from a group activity, which interfered with her rights and education; there is no doubt that a
reasonable person should know that touching a student in a private area would result in emotional harm
or insult, and J.H.’s reactions upon observing his conduct on video demonstrated that he recognized the
nature of his behavior, as he apologized. 	The ALJ concluded that the Board’s HIB conclusion had a
rational basis and that evidentiary support existed to support its conclusion. Accordingly, the Board’s
motion for summary decision was granted and the petition was dismissed.
Upon review, the Commissioner concurred with the ALJ that the Board did not act in an arbitrary,
capricious, or unreasonable manner in rendering its HIB determination in this case. Accordingly, the
Initial Decision of the OAL was adopted as the final decision in this matter, and the petition was
dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has been
neither reviewed nor approved by the Commissioner.

212-24
OAL Dkt. No. EDU 00642-24
Agency Dkt. No. 344-12/23
New Jersey Commissioner of Education
Final Decision
E.H. and B.H., on behalf of minor child, J.H.,
Petitioners,
v.
Board of Education of the Township of Jefferson,
Morris County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law have been
reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner concludes that petitioners failed to demonstrate that respondent
Board of Education’s determination that J.H. committed an act of harassment, intimidation, or bullying
(HIB) was arbitrary, capricious, or unreasonable.
Accordingly, the Commissioner adopts the Initial Decision as the final decision in this matter.
Respondent’s motion for summary decision is granted and the petition of appeal is hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: May 30, 2024
Date of Mailing: May 31, 2024
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 00642-24
AGENCY DKT. NO. 344-12/23
E.H. AND B.H.,
Petitioner,
v.
BOARD 	OF 	EDUCATION 	OF 	THE
TOWNSHIP 	OF 	JEFFERSON, 	MORRIS
COUNTY,
Respondent.
________________________________________
E.H. and B.H., petitioners appearing pro se
Patrick Carrigg, Esq. for Respondent (Lenox, Socey, Formidoni, Giordano,
Carrigg, Lang & Casey, LLC, attorneys)
Record Closed: April 18, 2024 	Decided: April 22, 2024
BEFORE: NANCI G. STOKES, ALJ
STATEMENT OF THE CASE
Petitioners challenge a determination that J.H., their minor child, engaged in
Harassment, Intimidation, and Bullying (HIB) against a female classmate on June 19,

OAL DKT. NO. EDU 00642-24
2
2023, when he placed his hands in her lap twice. 	Should the HIB conclusion stand,
even though J.H. suffers from behavioral dysregulation and other disabilities? 	Yes.
Students with disabilities remain subject to HIB prohibitions, and a Board of Education’s
decision will stand unless it is arbitrary, capricious, or unreasonable.
PROCEDURAL HISTORY
On December 18, 2023, E.H. and B.H. filed a Petition of Appeal with the
Commissioner 	of 	Education 	(Commissioner) 	challenging 	the 	Jefferson 	Board 	of
Education’s (Board) HIB determination against J.H. Petitioners largely dispute that J.H.
knew that his behavior could harm the other student given his disabilities and maintain
that 	the 	Board 	never 	explained 	what 	it 	considered 	to 	be 	the 	victim’s 	perceived
distinguishing characteristic. Further, petitioners contend that J.H. did not target the
victim because she was female and that J.H.’s disabilities prevent him from forming the
necessary intent to support an act of HIB. Thus, petitioners seek to set aside the
Board’s decision and remove the HIB finding from J.H.’s record.
On January 9, 2024, the Board answered the petition denying the petitioners'
allegations, maintaining it followed all required procedures and that its decision met the
HIB criteria. The Board requests that this tribunal and the Commissioner uphold the
Board’s HIB determination.
The Department of Education (DOE) transmitted this case to the Office of
Administrative Law (OAL) 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 January 9, 2024, the OAL received and filed the transmittal.
On March 18, 2024, the Board filed a motion for a summary decision as the
parties did not dispute the events of June 19, 2023. 	Petitioners filed no response. 	On
April 17, 2024, the Board submitted the video of the June 19, 2023, event. 	On that
date, I closed the record.

OAL DKT. NO. EDU 00642-24
3
FINDINGS OF FACT
Viewing the facts in the most favorable light to the non-movants, I FIND the
following as FACT after considering the sufficiency of the documents:
In June 2023, J.H. attended Jefferson Township’s (Jefferson) Arthur Stanlick
Elementary School as a fifth-grade student. 	On June 19, 2023, J.H. was ten years old
and under a 504 plan to accommodate the following disabling conditions: (1) attention
deficit hyperactivity disorder (ADHD); (2) Central auditory processing disorder, (3)
autism, and (4) sensory processing disorder. In an assessment in July 2023, Jefferson
also noted that J.H. suffered from childhood emotional disorder and disruptive mood
dysregulation disorder. 	The Board does not dispute that J.H. has disabilities, is
classified, or that J.H.’s disabilities may have impacted his ability to fully appreciate his
conduct.
On June 19, 2023, J.H. attended school. 	At drop-off, B.H. alerted the school’s
principal 	and 	his 	teachers 	that 	J.H. 	was 	exhibiting 	mood 	swings 	and 	sensory
dysregulation because of a medication issue. 	J.H. had behavioral problems during the
day.
At dismissal, J.H. sat on the school's hallway floor, waiting to be picked up. A
female student sat next to him in the hallway. 	Soon after, J.H. placed his hands in her
lap twice, touching her private area. Jefferson supplies a forty-seven-second video of
these events. In the upper left part of the video, J.H. is sitting cross-legged on the blue
carpet on the floor, facing the camera. At the twelve-second mark, a girl with brown hair
and a tan backpack walks over and sits next to J.H. at the fourteen-second point, with
her back facing the camera. 	Between the seventeen and twenty-second points in the
video, J.H. reaches his right hand over her leg into her lap area twice. 	Immediately
after, the girl moves slightly away from J.H. on his right and turns her back to him.
Jefferson’s anti-bullying specialist, Gina Santini, investigated the incident and
interviewed the alleged victim and J.H. 	On the day of the incident, Santini interviewed
the alleged victim, who was crying and relayed that someone touched her “private part”
twice while next to her. 	The alleged victim told Santini that she tried to tell an adult but

OAL DKT. NO. EDU 00642-24
4
was not sure what to do, reporting that she was scared and uncomfortable. 	Someone
observed the incident and reported it, leading to Santini’s investigation. 	Notably,
petitioners do not dispute J.H.’s actions.
The female student was reluctant to attend school the next day, and her parent
asked the principal to excuse her from a group activity.
On June 21, 2023, Santini interviewed J.H. Initially, J.H. did not recall his actions
but acknowledged that he touched the girl after seeing the video. 	J.H. apologized after
realizing that he did, expressing remorse and a desire to make things right.
On July 18, 2023, Jefferson completed its HIB investigation, concluding that a
gender-based physical contact HIB was confirmed. Jefferson previously reported the
incident to the police department, which concluded that no crime occurred, and that the
administration could address the behavior. The incident report highlights that J.H.’s
actions made the victim fearful of physical or emotional harm.
On 	that 	same 	date, 	the 	principal 	notified 	petitioners 	of 	the 	school’s 	HIB
determination, and the school reported its findings to the Board.
J.H.’s discipline for the HIB action was student counseling and a one-day
suspension.
On August 24, 2023, the Board wrote to petitioners advising that it affirmed its
conclusion that J.H. committed an act of HIB.
Subsequently, J.H.’s parents requested a hearing and appeared before the
Board on September 18, 2023. They maintain that their son did not fully understand his
conduct 	because 	of 	his 	disabilities 	and 	blame 	the 	school 	for 	not 	appropriately
addressing his behavioral problems. 	Still, the only issue before this tribunal is whether
the Board’s HIB determination should stand.

OAL DKT. NO. EDU 00642-24
5
Yet, on September 20, 2023, the Board confirmed that J.H.’s actions constituted
an act of HIB that caused emotional harm to the victim, leading to a substantial
disruption to the school and the victim’s rights. This appeal followed.
J.H.’s parents maintain that the HIB finding caused significant distress to J.H., a
student already struggling with the school environment, and urging compassion for his
circumstances. 	They placed J.H. in therapy to help him self-reflect and have a better
understanding of his disabilities.
DISCUSSION AND CONCLUSIONS OF LAW
The Legislature designed the Anti-Bullying Rights Act (ABRA), N.J.S.A. 18A:37-
13 to -37, “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). 	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).
Under the ABRA, “harassment, intimidation or bullying” (HIB) is defined as:
[A]ny gesture, any written, verbal or physical act, or any
electronic communication, whether it be a single incident or
a series of incidents, that is reasonably perceived as being
motivated either by any actual or perceived characteristic,
such 	as 	race, 	color, 	religion, 	ancestry, 	national 	origin,
gender, sexual orientation, gender identity and expression,
or a mental, physical or sensory disability, or by any other
distinguishing 	characteristic, 	that 	takes 	place 	on 	school
property, at any school-sponsored function, on a school bus,
or 	off 	school 	grounds 	as 	provided 	for 	in 	section 	16 	of
P.L.2010, c.122 (C.18A:37-15.3), that substantially disrupts
or interferes with the orderly operation of the school or the
rights of other students and that:
a. 	a 	reasonable 	person 	should 	know, 	under 	the
circumstances, 	will 	have 	the 	effect 	of 	physically 	or
emotionally harming a student or damaging the student's
property, or placing a student in reasonable fear of physical
or emotional harm to his person or damage to his property;

OAL DKT. NO. EDU 00642-24
6
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]
Thus, a HIB finding requires demonstrating three elements, assuming the alleged
incident or incidents occurs on school property, at a school-sponsored function, on a
school bus, or off school grounds as provided for in N.J.S.A. 18A:37-15.3. 	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 element requires satisfaction of one of the
three criteria enumerated in the Act regarding the effect of the conduct. Wehbeh v. Bd.
of 	Educ. 	of 	the 	Twp. 	of 	Verona, 	Essex 	County, 	EDU 	10981-18, 	Initial 	Decision
(December 29, 2019), http://njlaw.rutgers.edu/collections/oal, rejected and remanded
Comm’r Decision No. 51-20 (February 4, 2020), 2020 N.J. AGEN. LEXIS 50.
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. 	Indeed, the Commissioner recognizes that Boards
should "have the discretion to operate their schools in a manner that best serves their
unique communities,” the Commissioner will not interfere with that discretion concerning
HIB matters unless the Board acted arbitrarily, capriciously, or unreasonably. 	G.H. &
E.H. o/b/o K.H. v. Franklin Lakes Bd. of Educ., EDU 13204-13 (Feb. 24, 2014), aff’d,
Comm’r (Apr. 10, 2014), n.4. 	Further, “where there is room for two opinions, action is

OAL DKT. NO. EDU 00642-24
7
not arbitrary or capricious when exercised honestly and upon due consideration[,]” the
Commissioner 	will 	not 	substitute 	his 	judgment 	for 	that 	of 	the 	Board. 	Bayshore
Sewerage Co. v. Dep’t. of Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff’d,
131 N.J. Super. 37 (App. Div. 1974).
Still, 	the 	Board’s 	factual 	determinations 	require 	such 	deference 	only 	when
supported by substantial credible evidence, e.g., having a rational basis. 	Quinlan v.
Board of Ed. of North Bergen Tp., 73 N.J. Super. 40 (App. Div. 1962); Schinck v. Board
of Ed. of Westwood Consol. School Dist., 60 N.J. Super. 448 (App. Div. 1960).
Additionally, the reviewing tribunal may reject the findings of fact if the evidentiary
record does not support them. In re Suspension of License of Silberman, 169 N.J.
Super. 243, 255-56 (App. Div. 1979), aff’d, 84 N.J. 303 (1980).
Undeniably, the incident took place on school grounds and is subject to the HIB
statutory directives. Regarding the first element, the statute defines HIB is an action
"that is reasonably perceived as being motivated either by any actual or perceived
characteristic.” N.J.S.A. 18A:37-14. 	Here, the statute requires an analysis of the
victim's perception of the actor's motivation and whether that perception is reasonable.
Yet, an analysis of the actual motivation of the actor is not required. 	Webbeh, at *8.
Here, I CONCLUDE it was not arbitrary, capricious, or unreasonable for the Board to
conclude that the female victim could reasonably consider J.H.’s actions, touching her
“private part” area, motivated by her gender.
The second element is similarly clear because the victim reported being scared
and uncomfortable because of J.H.’s physical contact. She was also reluctant to attend
school the next day and requested she be excused from a group activity, interfering with
her rights and education. The incident was limited, but the victim was crying during her
interview with Santini, reported being scared, and was afraid of returning to school.
Further, the victim did not report the incident due to fear, but another individual alerted
the school after observing the interaction.
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

OAL DKT. NO. EDU 00642-24
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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.
Thus, I CONCLUDE that the Board satisfied the second requirement necessary
to conclude that J.H. committed a HIB.
The third element under N.J.S.A. 18A:37-14(a) requires a conclusion that the HIB
act is one that "a reasonable person should know, under the circumstances, will have
the effect of physically or emotionally harming a student," "has the effect of insulting or
demeaning a student," or "creates a hostile educational environment." In Wehbeh, the
Commissioner highlighted that “none of these criteria require the actor to have actual
knowledge of the effect that their actions will have, or to specifically intend to bring
about that effect.” 	Id. 	Further, any one of the three criteria satisfies the third element.
Here, the Board found that J.H.’s actions made the victim fearful of school. 	While the
Board accepts thar J.H. did not fully appreciate his actions or intend to harm the victim,
J.H.’s disabilities do not excuse his inappropriate actions. 	Every student is bound by
the District’s HIB policy, and the District is required to investigate HIB complaints and
enforce its HIB policies. N.J.S.A. 18A:37-15(b)(6).
Although petitioners feel the school, aware of J.H.’s struggles, could have done
more to help J.H. avoid such behavior, that does not change what J.H. did, even if
J.H.’s actions were careless. In other words, there is no doubt that a reasonable person

OAL DKT. NO. EDU 00642-24
9
should know that touching a student in a private area would result in emotional harm or
insult.
Notably, once J.H. observed his conduct on video, he apologized, recognizing
the nature of his 	behavior. 	Hence, 	I CONCLUDE 	the Board 	was not arbitrary,
capricious, or unreasonable in reaching the conclusion that the third prong of the HIB
analysis was met.
Notably, N.J.A.C. 6A:16-7.7(a)2 requires that the consequences stemming from
a HIB reflect the nature of the actions and the perpetrator’s disabilities, if any. Here, the
discipline imposed was only a one day suspension and counseling. 	While the HIB
report could arguably better reflect J.H.’s disabilities, the Board certainly considered
J.H.’s circumstances raised by his parents at the hearing.
Here, petitioners present no credible evidence that the Board acted arbitrarily or
that its decision was unreasonable. 	I appreciate that petitioners wish to protect their
son from a determination with which they disagree and took laudable steps to help their
son better understand his disabilities. 	Still, I found that the Board’s HIB conclusion had
a rational basis and that evidentiary support existed to support its conclusion. 	Thus, I
CONCLUDE that the Board’s decision that J.H. committed a HIB should stand.
ORDER
Given my findings of fact and conclusions of law, I ORDER that the Board’s
motion for summary decision be GRANTED and DISMISS the petitioners’ appeal.
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

OAL DKT. NO. EDU 00642-24
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unless such time limit is otherwise extended, this recommended decision shall become
a final decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to
the judge and to the other parties.
April 22, 2024
DATE 	NANCI G. STOKES, ALJ
Date Received at Agency: 	April 22, 2024
Date Mailed to Parties: 	April 22, 2024
ljb

OAL DKT. NO. EDU 00642-24
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APPENDIX
Submssions Considered
For Petitioner
Petition
For Respondent
Motion, brief, and supporting certification with exhibits
Video and certification