Janan Wehbeh v. Board of Education of the Township of Verona, Essex County, 2/4/2020, (#51-20)

New Jersey Commissioner of Education
Decision
Janan Wehbeh,
Petitioner,
v.
Board of Education of the Township of
Verona, Essex County,
Respondent.
Synopsis
Petitioner, a tenured teacher in the respondent Board’s school district, appealed the Board’s decision to
affirm the results of a harassment, intimidation, and bullying (HIB) investigation into petitioner’s
conduct. 	The HIB investigation summary determined that the petitioner unintentionally engaged in
bullying behavior and had no awareness of the potential negative impact on the student. 	The Board
affirmed the findings of the investigation, which stemmed from a meeting petitioner had with a student to
discuss the student’s desire to enroll in an advanced placement (AP) chemistry course. The parties filed
cross motions for summary decision.
The ALJ found, inter alia, that: 	petitioner’s conversation with the student regarding entry into the AP
chemistry course concluded with a recommendation that the student not enroll in the course, but left the
decision up to the student; petitioner discouraged the student because of the degree of difficulty and the
student’s prior performance in an honors chemistry course that petitioner taught; 	the student has been
diagnosed with anxiety and panic disorders and has a 504 plan that assists her in meeting her educational
goals; the HIB complaint alleged that petitioner made verbal remarks that touched upon the student’s
disability; and the HIB investigation summary concluded that petitioner had unintentionally engaged in
bullying behavior and had no awareness of its potential negative effects upon the classified student. The
ALJ concluded, inter alia, that: 	in order to establish an occurrence of HIB, the actor’s intent to harm
must be demonstrated, and an actor cannot “unintentionally” commit an act of HIB; because the Board
determined that petitioner had unintentionally engaged in bullying behavior, the intent required by the
Anti-Bullying Bill of Rights Act, N.J.S.A. 18A:37-13 et seq., was lacking. Accordingly, the ALJ granted
petitioner’s motion for summary decision.
Upon comprehensive review, the Commissioner disagreed with the ALJ’s conclusion that an act of HIB
cannot be “unintentionally” committed, finding, inter alia, that HIB can occur when the victim reasonably
perceives that an action was motivated by a desire to do harm. The Commissioner noted that in the Initial
Decision, the ALJ stated that there were several disputed issues of material fact in this case, including
whether or not petitioner should have known under the circumstances that her words, actions or gestures
would have the effect of physically or emotionally harming the student. The Commissioner concluded
that these disputed issues of fact must be resolved before reaching a determination regarding whether the
Board’s decision was arbitrary, capricious or unreasonable. Accordingly, the matter was remanded to the
OAL for further proceedings consistent with the Commissioner’s decision.
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.
February 4, 2020
51-20

OAL Dkt. No. EDU 10981-18
Agency Dkt. No. 154-6/18
New Jersey Commissioner of Education
Decision
Janan Wehbeh,
Petitioner,
v.
Board of Education of the Township of
Verona, Essex County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law
(OAL), the exceptions filed by respondent pursuant to N.J.A.C. 1:1-18.4, and petitioner’s reply
thereto have been reviewed.
This matter concerns an alleged act of harassment, intimidation, and bullying
(HIB) by petitioner, a high school chemistry teacher. Petitioner met with a student to discuss the
student’s desire to enroll in an advanced placement (AP) chemistry course. The student, who has
been diagnosed with anxiety and panic disorders, filed an HIB complaint regarding comments
the student alleges petitioner made during the conversation. Following an investigation, district
staff issued an HIB investigation summary that indicated that petitioner had “unintentionally
engaged in bullying behavior and had no awareness of the potential negative impact on the
victim.” 	The Board later voted to affirm the findings of the investigation, and petitioner
appealed.
Following cross motions for summary decision, the ALJ concluded that, in order
to establish an occurrence of HIB, the actor’s intent to harm must be demonstrated, and an actor

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cannot “unintentionally” commit an act of HIB. 	The ALJ further concluded that, because the
Board had determined that petitioner unintentionally engaged in bullying behavior, the intent
required by the Anti-Bullying Bill of Rights Act (Act), N.J.S.A. 18A:37-13 et seq., was lacking
and the Board’s decision must be reversed. Accordingly, the ALJ granted petitioner’s motion for
summary decision.
The ALJ then went on to address an aspect of the case not argued by either party.
The ALJ asserted that the superintendent’s letter to petitioner, wherein she was told that the
district found evidence of HIB in their investigation, did not address all of the elements required
for a determination of an act of HIB. 	The superintendent only discussed elements of the
definition of HIB contained in the statute’s first paragraph. The ALJ concluded that because the
letter did not address the definition of HIB in its entirety, the superintendent did not consider the
elements of HIB defined in the second paragraph to have been satisfied by the evidence. For this
reason, the ALJ determined that the contents of the superintendent’s letter were inadequate to
support a finding of HIB. The ALJ further concluded that since the Board’s decision appears to
have been based solely on the findings set forth in the superintendent’s letter, it was not based on
the full definition of HIB, and thus establishes a second basis for the reversal of the Board’s
decision.
In its exceptions, the Board argues that the ALJ’s holding that the Act requires
intent on the part of the actor is in error. 	The Board cites to the Commissioner’s decision in
L.K. and T.K., o/b/o minor child A.K. v. Bd. of Educ. of the Twp. of Mansfield, Burlington Cty.,
Commissioner Decision No. 107-19, decided April 22, 2019, in which the Commissioner
affirmed a board’s finding of HIB against a seven-year-old child and stated that the child “should
have known” that her actions were harming another student. 	Accordingly, the Board contends
that the Act focuses on the reasonable perception of the victim and whether the actor should have

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known that the action would cause harm. The Board provides an example of a teacher dressing
in a KKK costume for Halloween, with no intent to cause harm, and suggests that such an act
would constitute HIB because the students could reasonably perceive the action to be motivated
by race and a reasonable teacher should know that the action would cause harm. 	The Board
argues that the ALJ’s holding sets up the untenable situation wherein HIB could never be proven
because everyone accused of HIB would simply state that they did not mean to cause harm. The
Board also takes issue with the ALJ’s comments regarding a December 2012 publication,
entitled Guidance for Parents on the Anti-Bullying Bill of Rights Act and available on the
Department of Education’s website, which the ALJ interpreted as requiring intent. 	The Board
argues that the Commissioner’s recent decision in L.K. and T.K., supra, not a document on the
Department’s website, should control.
Finally, the Board argues that the ALJ was incorrect in concluding that the
Superintendent’s letter of March 14, 2018 to petitioner was insufficient to support a finding of
HIB. The Board indicates that its decision was based on findings other than those set forth in the
letter and that the letter was not intended as the Board’s official findings to the exclusion of all
other evidence gathered during the HIB investigation process. 	According to the Board, neither
party disputed or briefed this issue, and the ALJ’s sua sponte consideration of it is contrary to the
record and deprived the Board of the opportunity to provide evidence or testimony to address the
question.
In reply, petitioner submits that the Commissioner should adopt the ALJ’s
analysis in whole. 	Petitioner distinguishes the holding in L.K. and T.K., supra, because the
alleged bully in that case was repeatedly asked to stop her behavior, while petitioner had only
one allegedly problematic interaction with the student and was never told that her choice of
words might cause harm to the student. Petitioner claims that she had no way of knowing that a

4
conversation she has with her students every year could allegedly cause emotional harm to this
particular student. According to petitioner, the statutory language requires “at least” knowledge
that one’s actions could cause harm to the alleged target, and a reasonable person in her shoes
would have no way of knowing that her actions would constitute HIB. Petitioner indicates that
the arbiter of facts must determine how a reasonable person in similar circumstances would
reasonably perceive the alleged bully’s actions.
Further, in response to the Board’s example, petitioner agrees that a teacher
dressing in a KKK robe for Halloween would constitute HIB, because a reasonable person would
know that this action was inappropriate and would cause emotional harm, even if the teacher did
not subjectively know that. Petitioner argues that if bullying can be committed unintentionally,
teachers would live in fear of developing a rapport with students because their objectively
reasonable and unintentional conduct could be deemed bullying. Petitioner also cites to guidance
issued by the Department of Education that, according to petitioner, supports a finding that intent
is required to commit an act of HIB. 	Finally, petitioner urges the Commissioner to accept the
ALJ’s findings regarding the sufficiency of the March 14, 2018 letter, which petitioner claims
demonstrates that not all of the elements of the statute were satisfied.
Upon review, the Commissioner disagrees with the ALJ’s conclusion that an act
of HIB cannot be “unintentionally” committed. The Act defines HIB as follows:
[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:

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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.
Therefore, 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.1 	The third condition is that
one of the three criteria enumerated in the Act regarding the effect of the conduct must also be
satisfied.2
In defining HIB as an action “that is reasonably perceived as being motivated
either by any actual or perceived characteristic . . .”, N.J.S.A. 18A:37-14 (emphasis added), the
statute requires an analysis of how the actor’s motivation is perceived and whether that
perception is reasonable.3 	It does not require an analysis of the actual motivation of the actor.
1 The conduct must also take place 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. This requirement does not appear to be at issue in this case.
2 The Initial Decision incorrectly views subsection (a), that a reasonable person should know the act will have a
harmful effect, as the third requirement, with an additional fourth requirement being a choice between subsections
(b) and (c). 	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.
3 This conclusion does not make the Act a strict liability statute, as the ALJ opined it would. The statute is clear that
the perception must be reasonable. The Commissioner does not interpret the Board’s arguments as suggesting a
purely subjective standard in which any perception by an alleged victim is automatically reasonable, as the ALJ did.
If the Board was in fact suggesting such an interpretation, the Commissioner rejects it in favor of a standard
reasonableness determination common in many types of adjudications. 	Furthermore, the Commissioner does not
agree with the ALJ that, in order to be reasonable, the alleged victim must correctly assess the actor’s motivation, as
such a requirement would convert the analysis from one about reasonably perceived motivation to one about actual
motivation and would inappropriately place the burden on the alleged victim to divine the intent of the actor.

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Certainly, evidence that the actor was motivated by a distinguishing characteristic would meet
the standard of this section of the Act, but evidence that the actor was not so motivated does not
end the analysis. 	Moreover, an act of HIB 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 . . .”.
N.J.S.A. 18A:37-14(a) (emphasis added). None of these criteria require the actor to have actual
knowledge of the effect that her actions will have, or to specifically intend to bring about that
effect. 	The first requires only that a reasonable person should know there would be a harmful
effect, not that the actor knows there would be such an effect. 	The second two criteria address
only the actual effect of the act, without any reference to what either the actor or a reasonable
person does or should know.
While 	the 	ALJ 	found, 	and 	petitioner 	argues, 	that 	conduct 	found 	to 	be
unintentional 	cannot 	reasonably 	be 	perceived 	as 	being 	motivated 	by 	a 	distinguishing
characteristic, the Commissioner disagrees. 	Initially, the Commissioner notes that the Board’s
decision does not state that the conduct was not motivated by a distinguishing characteristic. The
language used in the documents in the record suggest that the lack of intentionality was related to
the causing of harm, an element distinct from the motivation. 	However, even if the Board was
indicating that petitioner’s comments were not motivated by the student’s disability, it could
have reasonably found that she committed an act of HIB if the student reasonably perceived the
comments as being motivated by her disability.
Petitioner also relies, in part, on guidance published by the Department of
Education,4 which states, “Bullying among students is aggressive behavior that is intentional.”
4 The Initial Decision indicates that the ALJ did not review the guidance or make any evaluation or factual finding
regarding it. The Commissioner nonetheless deems it appropriate to address the guidance, as it has been part of the
arguments made by the parties in both the briefs below and the exceptions.

7
https://www.nj.gov/education/students/safety/behavior/hib/guidance.pdf 	(page 	44). 	The
Commissioner first notes that guidance, while intended to be instructive for the public, does not
replace the Commissioner’s decisions as the definitive interpretation of the law. 	Second, the
document containing this statement also explicitly states, “[t]he term ‘bullying’ is used to refer to
general information on this subject and is not limited to the HIB definition in the [Act].”
Ibid. 	at 	page 	5. 	Therefore, 	this 	particular 	statement 	defining 	“bullying” 	is 	not 	useful
or 	applicable 	in 	interpreting 	what 	constitutes 	HIB 	under 	the 	Act. 	Another 	guidance
document 	describes 	bullying 	as 	“intentionally 	committing 	a 	mean 	or 	violent 	act.”
https://www.nj.gov/education/students/safety/behavior/hib/ParentGuide.pdf (page 11). However,
it goes on to indicate that bullying occurs when the “aggressor’s behavior would lead a person to
reasonably believe that the aggressor is motivated by a desire to physically or emotionally hurt
someone.” 	Ibid. 	This language clearly tracks the “reasonably perceived” language of the Act,
and concludes, as the Commissioner does herein, that HIB can occur when the victim reasonably
perceives that the action was motivated by a desire to do harm.
Petitioner’s 	reply 	to 	the 	Board’s 	exceptions 	appears 	to 	misconstrue 	the
Initial Decision 	and 	instead 	agrees, 	in 	large 	part, 	with 	the 	analysis 	herein. 	Petitioner
acknowledges that the reasonable person test applies when analyzing the actions in question and
argues that the ALJ’s conclusion should be affirmed because a reasonable person in her shoes
would have no way of knowing that her actions would constitute a HIB violation. But the ALJ
did not make that finding and, in fact, listed “whether or not Wehbeh should have known under
the prevailing circumstances that her words, actions, or gestures would have the effect of
physically or emotionally harming” the student as a disputed issue of material fact. 	Moreover,
even if this issue was resolved in petitioner’s favor with a finding that a reasonable person would
not have known that her action would emotionally harm the student, a finding of HIB could still

8
be supported if either of the other two criteria – that the act had the effect of insulting or
demeaning the student or that it created a hostile educational environment for the student – was
proven. These questions are also identified in the Initial Decision as disputed issues of material
fact. 	For these reasons, the Commissioner is not able to ascertain whether the petitioner
committed an act of HIB. 	The disputed issues of fact must be resolved before reaching a
determination regarding whether the Board’s decision was arbitrary, capricious, or unreasonable.
Regarding the sufficiency of the March 14, 2018 letter from the superintendent to
petitioner, the Commissioner disagrees with the ALJ’s conclusion. The decision being appealed
in this matter is the Board’s decision of March 28, 2018. 	The only requirement in the Act
regarding the Board’s decision is that it must be in writing and affirm, reject, or modify the
superintendent’s decision. 	N.J.S.A. 18A:37-15(b)(6)(e). 	The Board satisfied that requirement
through its letter of March 28, 2018 affirming the superintendent’s decision. Furthermore, there
is no basis in the record for the ALJ’s conclusion that the Board’s decision was based solely on
the Superintendent’s letter.
Accordingly, 	this 	matter 	is 	remanded 	to 	the OAL for 	further 	proceedings
consistent with this decision.
IT IS SO ORDERED.
COMMISSIONER OF EDUCATION
Date of Decision: 	February 4, 2020
Date of Mailing: 	February 4, 2020

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 10981-18
AGY. REF. NO. 156-6/18
JANAN WEHBEH,
Petitioner,
v.
BOARD OF EDUCATION OF THE TOWNSHIP
OF VERONA, ESSEX COUNTY,
Respondent.
________________________________
William P. Hannan, Esq., for Petitioner (Oxfeld Cohen, attorneys)
Daniel R. Roberts, Esq., for Respondent (Kenny, Gross, Kovats & Parton,
attorneys)
Record Closed: September 27, 2019 	Decided: December 24, 2019
BEFORE JOHN P. SCOLLO, ALJ:
STATEMENT OF THE CASE
This is a Harassment, Intimidation, and Bullying (HIB) case arising out of the
New Jersey Anti-Bullying Bill of Rights, N.J.S.A. 18A:37-13, et seq. 	Dr. Janan Wehbeh
(Wehbeh) appeals the Verona Board of Education’s (respondent’s or BOE’s) affirmance

2
of the school district’s HIB Investigation. 	The school district’s investigation found that
during a meeting with a student named J.G., Wehbeh unintentionally engaged in
bullying behavior and had no awareness of the potential negative impact on the victim.
The background of the matter is as follows. 	Wehbeh is a chemistry teacher at
Verona High School. 	On February 15, 2018, Wehbeh met with a student referred to
herein as “J.G.” to discuss J.G.’s desire to enroll in an Advanced Placement (AP)
chemistry course. 	Wehbeh recommended to J.G. that she not enroll in the Advanced
Placement 	chemistry 	course 	because 	of 	its 	degree 	of 	difficulty 	and 	because, 	in
Wehbeh’s opinion, J.G. was having a difficult time in the honors chemistry course in
which she was currently enrolled. 	J.G. is a student who has been diagnosed with
anxiety and panic disorders and has a 504 plan that assists her in meeting her
educational goals.
PROCEDURAL HISTORY
On or about February 15, 2018, J.G. and her mother filed an HIB complaint
against Wehbeh. 	They claimed that Wehbeh made verbal remarks about J.G.’s ability
to handle the requirements of the AP chemistry course. 	They claimed that Wehbeh’s
remarks touched upon J.G.’s disability, which was rooted in an anxiety diagnosis, for
which J.G. was categorized as a special education student and given a 504 plan.
On or about February 20, 2018, the school district began its investigation into the
HIB allegation. 	The investigator interviewed two people, Wehbeh and J.G. 	The
investigator, 	utilizing 	the 	definition 	of 	HIB 	found 	in 	N.J.S.A. 	18A:37-13 	et 	seq.,
specifically 	at 	N.J.S.A. 	18A:37-14, 	concluded 	and 	wrote 	in 	her 	HIB 	Investigation
Summary, dated March 14, 2018, that Wehbeh unintentionally bullied J.G. when she
made demeaning comments to J.G. in the classroom, which minimized J.G.’s mental
disability, interfered with J.G.’s right to access education (opportunities), created a
hostile educational environment, and caused J.G. emotional harm. 	(Petr.’s Ex. B and
Resp.’s Ex. C.) 	On March 27, 2018, the Verona Board of Education voted to affirm the

3
findings of the investigation and informed Wehbeh of its decision in its letter dated
March 28, 2019. (Petr.’s Ex. C and Resp.’s Ex. G.)
On June 26, 2018, Wehbeh’s counsel filed a Petition of Appeal with the New
Jersey Department of Education, Bureau of Controversies and Disputes. 	The Verona
Board of Education filed its Answer to Petition of Appeal on July 18, 2018. The Bureau
of Controversies and Disputes transmitted the matter to the Office of Administrative
Law, where it was filed on August 1, 2018, as a contested case.
The matter was assigned to Ernest Bongiovanni, ALJ on August 8, 2018, but he
had a conflict of interest. 	The case was re-assigned to John P. Scollo, ALJ on August
13, 2018. 	Judge Scollo held an initial telephone conference with counsel for Wehbeh
and counsel for the BOE on August 22, 2018, at which time a plan for discovery was put
in place and a Pre-Hearing Order was issued on August 23, 2018.
A 	telephone 	conference 	was 	held 	on 	December 	13, 	2018, 	to 	monitor 	the
progress of discovery and to discuss settlement possibilities. 	Adjournment of hearing
dates were granted twice: 	once for discovery reasons and once to accommodate the
judge’s vacation plans. 	On August 20, 2019, counsel for Wehbeh filed a Motion for
Summary Decision limited to Count One of Wehbeh’s Petition of Appeal (“HIB cannot
be unintentional.”). On August 23, 2019, counsel for the BOE filed Opposition papers to
the motion and filed a Cross-Motion seeking Summary Decision on both Counts of
Wehbeh’s 	Petition of 	Appeal, for which 	the petitioner filed Opposition papers 	on
September 27, 2019.
ISSUES
(1) 	Can an act of HIB be committed unintentionally?
(2) 	Do the undisputed facts show that Wehbeh unintentionally committed one or
more acts of HIB against J.G.?

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FINDINGS OF FACT
Each of the following statements was taken from the exhibits presented by the
parties. There is no apparent dispute between the parties about the following facts.
(1) 	In April, 2013, before J.G. started high school, J.G. was diagnosed with
both anxiety and panic disorder by psychologist Thomas Hollenbach. 	Due to these
diagnoses, 	J.G. 	was 	determined 	to 	be 	disabled 	and 	thus 	eligible 	for 	a 	504
Accommodation Plan. 	(This refers to Section 504 of the Federal Rehabilitation Act of
1973.) 	She was given an Individual Accommodation Plan (IAP), which allowed her,
among other things, to be granted extended time for taking quizzes and tests. 	(Resp.’s
Ex. A.)
(2) 	Dr. Janan Wehbeh (Wehbeh) has been a chemistry teacher in the Verona
School District since 2011. (Petr.’s Ex. E and Resp.’s Ex. B.)
(3) 	In the 2017-2018 school year, J.G. was enrolled in honors chemistry,
which was taught by Wehbeh. (Petr.’s Ex. E and Resp.’s Ex. F.)
(4) 	On February 15, 2018, J.G. met with Wehbeh to discuss enrolling in
Advanced Placement (AP) chemistry in the 2018-2019 school year. 	(Petr.’s Ex. E and
Resp.’s Ex. F.)
(5) 	Wehbeh recommended to J.G. that she should not enroll in AP chemistry
because J.G. was having difficulty with honors chemistry, but left the decision to enroll
or not to enroll in AP chemistry with J.G. 	All parties agree that the ultimate decision
about whether to enroll in the AP chemistry course was J.G.’s. 	(Petr.’s Ex. E and
Resp.’s Ex. C.)
(6) 	On February 15, 2018, the mother of J.G., Ms. E.D., contacted the
principal of Verona High School Joshua Cogdill (Cogdill), and guidance counsellor Jen
Gadaleta (Gadaleta), requesting a meeting to discuss the conversation between her

5
daughter, J.G., and Wehbeh, which took place earlier that day. 	E.D. complained that
Wehbeh bullied her students, including J.G., by emphasizing how difficult the AP
chemistry 	course 	was 	and 	by 	telling 	them 	that 	the 	course 	“will 	kill 	you.” 	E.D.
complained that Wehbeh stated to J.G. that everyone who takes chemistry has anxiety
and that J.G. would not be allowed extra time to take quizzes and tests every day. E.D.
complained that Wehbeh disrespected J.G. by making disparaging remarks, which E.D.
saw as mocking J.G.’s anxiety disorder. 	E.D. complained that Wehbeh’s remarks
caused emotional upset to J.G. (Resp.’s Ex. E.)
(7) 	The school’s principal opened an HIB investigation on February 20, 2018.
Anti-bullying Specialist and District Director of Counselling Kimberly Ferulato (Ferulato)
was 	assigned 	to 	conduct 	the 	investigation. 	During 	Ferulato’s 	investigation, 	she
interviewed only two people: 	Dr. Wehbeh on February 21, 2018, and J.G. on February
23, 2018. 	(Resp.’s Ex. B and Ex. D.) 	According to the Respondent BOE’s answers to
Interrogatories, Respondent did not know the date when the HIB investigation ended.
(Resp.’s Ex. F, Question 9.)
(8) 	After conducting the interviews of Wehbeh and J.G., Ferulato concluded
that 	there 	was 	evidence 	supporting 	the 	proposition 	that 	Wehbeh 	unintentionally
committed an act of HIB against J.G. on February 15, 2018, with J.G.’s anxiety and 504
status being motivating factors. (Petr.’s Ex. A, B, C, D and Resp.’s Ex. C and G.)
(9) 	An HIB Investigation Summary, dated March 14, 2018, was prepared.
(Petr.’s Ex. B and Resp.’s Ex. C.) 	It was not signed and the author did not affix his or
her name. 	Presumably, it was prepared by the HIB investigator, Ferulato. 	The HIB
Summary contains the opinions, but no findings of the investigator. 	The HIB Summary
reports that it is the opinion of the investigator that: (i) Dr. Wehbeh uttered “demeaning
comments” to J.G. in a classroom; (ii) “unintentionally intimidated and bullied” J.G. by
“minimizing” 	J.G.’s 	mental 	disability; 	(iii) 	interfered 	with 	J.G.’s 	“right 	to 	access
education”; (iv) caused emotional harm to J.G.; and (v) created a hostile educational
environment. 	The HIB Investigation Summary, containing the investigator’s opinions,

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was 	submitted 	to 	Cogdill 	and 	to 	Dr. 	Rui 	Dionisio 	(Dionisio), 	the 	School 	District
Superintendent.
(10) 	In a letter dated March 14, 2018, which was signed by Ferulato, Cogdill,
and Dionisio (referred to herein as the “Superintendent’s letter dated March 14, 2018”),
Wehbeh was informed that the investigation results “have been reported to the Board of
Education at the March 27, 2018 meeting.”5 (Petr.’s Ex. A and Resp.’s Ex. G.)
(11) 	In the Superintendent’s letter dated March 14, 2018, Wehbeh was told that
“the district found evidence of the investigated act of [HIB].” 	(Petr.’s Ex. A and Resp.’s
Ex. G.) 	Using underlining, the letter stated that Wehbeh’s conduct met the following
elements of the definition of HIB set forth in N.J.S.A. 18A:37-14:
(i) 	[the conduct] “is reasonably perceived as being motivated by any
actual or perceived characteristic [such as] mental, physical or sensory
disability . . . .”
(ii) 	[that] “takes place on school property . . . .”
(iii) 	[that] “substantially disrupts or interferes with the orderly operation
of . . . the rights of other students.”
(12) 	The matter was presented to the Verona Board of Education (BOE), which
voted at its March 27, 2018 meeting. In a March 28, 2018, letter signed by Ferulato,
Cogdill, and Dionisio, they told Wehbeh “The Verona Board of Education voted to affirm
the findings of the HIB investigation.”
(13) 	Dr. Wehbeh filed a two-count Petition of Appeal dated June 25, 2018,
requesting a hearing, seeking to overturn the BOE’s decision. (Petr.’s Ex. E.)
(14) 	From the documents submitted with the motion papers, it is clear there are
certain statements of material fact which J.G. and Dr. Wehbeh disagree about. Among
them are:
5 Since March 27 was a date still in the future when this letter was written, it is apparent that the words “and will be
considered by the Board of Education” should have been added between the word “Education” and the word “at,” but
these words were somehow omitted.

7
(a) 	whether or not Wehbeh actually made any of the
following 	statements 	to 	J.G. 	that, 	if 	J.G. 	took 	the 	AP
Chemistry course, she “would die”; she “would get five zeros
in 	a 	row”; 	she 	would 	“fail 	the 	class”; 	that 	“all 	students
[including J.G.] would get anxiety” during the AP Chemistry
course; that J.G. would “just have to handle it” (or even if this
statement referred to J.G.’s anxiety issues); that J.G. would
not be allowed extra time for completion of quizzes and
assignments in AP Chemistry; and that J.G. “was in the
SPED program” (a derogatory term for referring to students
enrolled in a special education program), which allegedly
brought J.G. to cry hysterically;
(b) 	whether Wehbeh and J.G. discussed anything about
J.G. enrolling in AP Chemistry against Wehbeh’s advice and
whether Wehbeh would in any way retaliate against J.G. for
doing so;
(c) 	whether or not J.G.’s perception of any of Wehbeh’s
statements 	to 	the 	class 	or 	to 	her 	could 	reasonably 	be
interpreted to have been motivated by an actual or perceived
characteristic as listed in N.J.S.A. 18A:37-14;
(d) 	whether or not Wehbeh should have known under the
prevailing circumstances that her words, actions, or gestures
would have the effect of physically or emotionally harming
J.G. or of placing in J.G. a reasonable fear of physical or
emotional harm;
(e) 	whether or not anything Wehbeh said to J.G. during
their meeting was insulting or demeaning on an objective
basis;
(f) 	whether anything Wehbeh said to J.G. during their
meeting 	created 	a 	hostile 	educational 	environment 	by
interfering with J.G.’s education by severely or pervasively
causing her physical harm or emotional harm.
FACTUAL DISCUSSION
As noted above, there are quite a few unresolved issues of fact regarding what
Wehbeh said to her class regarding the degree of difficulty of the AP chemistry course;
regarding what Wehbeh said to J.G. during their conversation about the AP chemistry
course on February 15, 2018; regarding whether Wehbeh said anything to J.G. about

8
her anxiety issues, her 504 plan, whether or how J.G.’s anxiety issues would affect her
performance in AP chemistry; and other questions of fact.
APPLICABLE LAW
In 2002 the New Jersey Legislature enacted L. 2002, c. 83, this State’s first
harassment, intimidation and bullying (HIB) law. 	In 2007 the Legislature amended the
law L. 2007, c. 129, to cover cyber-bullying. 	In 2010 the Legislature enacted the Anti-
Bullying Bill of Rights Act, L. 2010, c. 122, which revised and supplemented the prior
laws 	chiefly 	to 	cover 	incidents 	that 	occur 	off 	school 	grounds 	under 	special
circumstances. 	The legislature also enacted L. 2012, c. 1, which permits a school
district to implement bullying prevention and training programs.
Definition of Harassment, Intimidation and Bullying (HIB)
The 2010 law refined the definition of HIB to include [bracketed numbers added]:
[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 [1] 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, [2] that takes place
on school property, at any school-sponsored function, on a
school bus, or takes place off school grounds as provided for
in N.J.S.A. 18A:37-15.3, [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 	a 	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

9
c. creates a hostile educational environment for the student
by interfering with a student’s education or be severely or
pervasively 	causing 	physical 	or 	emotional 	harm 	to 	the
student.”
[N.J.S.A. 18A:37-14 (emphasis added).]
Comprehensive regulations promulgated by the Department of Education further
assist districts in complying with these statutory requirements. N.J.A.C. 6A:16-7.9.
Local Control of Policy and Required Contents of HIB Policy
The anti-bullying law provides that “[e]ach school district shall adopt a policy
prohibiting harassment, intimidation and bullying on school property, at a school-
sponsored function or on a school bus.” 	N.J.S.A. 18A:37-15(a). 	Pursuant to N.J.S.A.
18A:37-15(b) each school district has “local control over the content of the policy” but
the 	policy 	must 	include 	twelve 	enumerated 	components 	including 	a 	definition 	of
harassment, intimidation, and bullying at least as inclusive as the one provided (see
above) in N.J.S.A. 18A:37-14. 	The twelve required components of the policy are set
forth in N.J.S.A. 18A:37-15 and are summarized below.
(1) 	a statement prohibiting HIB of a student;
(2) 	a definition of HIB no less inclusive than that set forth
in N.J.S.A. 18A:37-13;
(3) 	a description of the type of behavior expected from
each student;
(4) 	consequences and appropriate remedial action for a
person who commits an act of HIB;
(5) 	a procedure for reporting an act of HIB, including a
provision that permits a person to report an act of HIB
anonymously;
(6) 	a procedure for prompt investigation of violations and
complaints, which procedure shall at a minimum provide that
[(a) the investigation be initiated within one school day of the
report and be completed within ten days of receipt of the
written report,
(b) 	the 	results 	of 	the 	investigation 	be 	reported 	to 	the
superintendent within two days of completion,

10
(c) the investigation and reports be reported to the board of
education 	no 	later 	than 	the 	date 	of 	the 	next 	board 	of
education meeting,
(d) the parents or guardians of the students who are parties
to the investigation be entitled to receive certain information
and request a hearing within five days after the results of the
investigation are reported to the board,
(e) 	the 	board 	must 	issue 	a 	written 	decision 	affirming,
rejecting or modifying the superintendent’s decision, which
can be appealed to the Commissioner of Education, and
(f) a complaint can be filed with the Division on Civil Rights
within 180 days of an incident of HIB based on membership
in a protected group.][;]
(7) 	the range of ways in which a school will respond once
an incident of HIB is identified, which shall be defined by the
principal 	in 	conjunction 	with 	the 	school 	anti-bullying
specialist, but shall include an appropriate combination of
services 	that 	are 	available 	within 	the 	district 	such 	as
counselling, 	support 	services, 	intervention 	services 	and
other programs, as defined by the commissioner. 	In the
event that the necessary programs and services are not
available within the district, the district may apply to the
Department 	of 	Education 	for 	a 	grant 	from 	the 	“Bullying
Prevention Fund” established pursuant to [N.J.S.A. 18A:37-
28] to support the provision of out-of-district programs and
services;
(8) 	a 	statement 	that 	prohibits 	reprisal 	or 	retaliation
against any person who reports an act of HIB and the
consequence and appropriate remedial action for a person
who engages in reprisal or retaliation;
(9) 	consequences and appropriate remedial action for a
person found to have falsely accused another as a means of
retaliation or as a means of HIB;
(10) 	a statement of how the policy is to be publicized,
including notice that the policy applies to participation in
school-sponsored functions;
(11) 	a requirement that a link to the policy be prominently
posted on the home page of the school district’s website and
distributed annually to parents and guardians who have
children enrolled in a school in the school district; and
(12) 	a requirement that the name, school phone number,
school address and school email address of the district anti-
bullying coordinator be listed on the home page of the school
district’s 	website; 	and 	that 	on 	the 	home 	page 	of 	each
school’s website the name, school phone number, school
address and school email address of the school anti-bullying
specialist and the district anti-bullying coordinator be listed.

11
The 	information 	concerning 	the 	district 	anti-bullying
coordinator and the school anti-bullying specialists shall also
be maintained on the department’s website.
HIB on School Grounds versus off School Grounds
In regard to the location of acts of HIB (on school grounds versus off school
grounds), the enactment of the Anti-Bullying Bill of Rights Act now requires that each
school district’s policy “include provisions for appropriate responses to harassment,
intimidation or bullying . . . that occurs off school grounds, in cases where a school
employee is made aware of such actions.” 	N.J.S.A. 18A:37-15.3. 	A school district’s
responses to harassment, Intimidation or bullying occurring off school grounds must “be
consistent with the board of education’s code of student conduct or other provisions of
the board’s policy on harassment, intimidation, or bullying.” 	N.J.S.A. 18A:37-15.3.
Pursuant to the rules governing a board of education’s code of student conduct,
N.J.A.C. 6A:16-7.5(a) states:
School authorities have the right to impose a consequence
on a student for conduct away from school grounds that is
consistent with the district board of education’s code of
student conduct, pursuant to N.J.A.C. 6A:16-7.1.
1. 	This 	authority 	shall 	be 	exercised 	only 	when 	it 	is
reasonably necessary for the student’s physical or emotional
safety, security and well-being or for reasons relating to the
safety, security and well-being of other students, staff or
school grounds, pursuant to N.J.S.A. 18A:25-2 and 18A:37-
2.
2. 	This 	authority 	shall 	be 	exercised 	only 	when 	the
conduct which is the subject of the proposed consequence
materially and substantially interferes with the requirements
of appropriate discipline in the operation of the school.
3. 	The 	consequence 	pursuant 	to 	(a) 	above shall 	be
handled in accordance with the district board of education’s
approved code of student conduct, pursuant to N.J.A.C.
6A:16-7.1, and as appropriate, in accordance with N.J.A.C.
6A:16-7.2, 	7.3, 	or 	7.4. 	and 	(b) 	school 	authorities 	shall
respond to harassment, intimidation, or bullying that occurs
off school grounds, pursuant to N.J.S.A. 18A:37-14 and 15.3
and N.J.A.C. 6A:16-1.3, 7.1, and 7.7.

12
Reporting of HIB
In regard to the reporting of alleged HIB incidents and the investigation of same,
N.J.S.A. 18A:37-16(a) forbids a member of a board of education, a school employee, a
student or a volunteer from engaging in acts of reprisal, retaliation, or false accusation
against a victim of HIB or a witness who reports acts of HIB.
N.J.S.A. 18A:37-16(b) requires that acts of HIB must be reported and states:
A 	member 	of 	a 	board 	of 	education, 	school 	employee,
contracted service provider, student or volunteer who has
witnessed, or has reliable information that a student has
been subject to, harassment, intimidation, or bullying shall
report 	the 	incident 	to 	the 	appropriate 	school 	official
designated by the school district’s policy, or to any school
administrator or safe schools resource officer, who shall
immediately 	initiate 	the 	school 	district’s 	procedures
concerning school bullying.
N.J.S.A. 18A:37-16(c) provides that any school official who promptly complies
with the reporting requirement of the law is immune from a cause of action for damages
arising from any failure to remedy the reported incident.
N.J.S.A. 	18A:37-16(d) 	provides 	that 	a 	school 	administrator 	who 	fails 	to
investigate the allegation of HIB or fails to take sufficient action to minimize or eliminate
the HIB may be subject to disciplinary action.
HIB Prevention
Pursuant to N.J.S.A. 18A:37-17(a) schools and school districts are required to
annually assess their HIB prevention programs, or approaches and other initiatives so
as to create school-wide conditions to prevent and address HIB 	Grants are available
from the Department of Education if needed.

13
N.J.S.A. 18A-37(b) obligates school, districts to provide training related to the
district’s HIB policies to its employees and volunteers emphasizing the importance of
the definition of HIB and of the protected categories found in N.J.S.A. 18A:37-14.
N.J.S.A. 18A-37-17(c) obligates individual schools to include the school district’s
policies against HIB in its employee training, including full and part-time employees,
volunteers and anyone who may have significant contact with students.
Comprehensive regulations promulgated by the Department of Education further
assist districts in complying with these statutory requirements. N.J.A.C. 6A:16-7.7.
LEGAL ANALYSIS AND CONCLUSIONS
SECTION ONE
The Tribunal’s Ruling on Respondent’s Cross-Motion
In its Cross-Motion, the respondent assumes that certain facts are undisputed.
(See page 5 of the Cross-Motion.) 	In Opposition to the respondent’s Cross-Motion, the
petitioner argues that respondent’s assertion that the facts are undisputed is incorrect
and 	that 	actually several 	issues 	of 	material 	fact 	are 	present and 	their 	presence
precludes granting Summary Decision in favor of the respondent.
A review of the documents and certifications convinces me that there are
unresolved questions of material fact in this case. They pertain to Wehbeh’s statements
about the rigors of the AP chemistry course to her class, Wehbeh’s version of her
conversation 	with 	J.G., 	and 	J.G.’s 	version 	of 	her 	conversation 	with 	Wehbeh. 	I
CONCLUDE that these unresolved fact questions are germane only to the outcome of
the respondent’s Cross-Motion and must be resolved by an evidentiary hearing. 	I
CONCLUDE that these questions are not germane to the petitioner’s Motion on Count
One of the Petition of Appeal because the issue therein is a purely legal question:

14
whether there is or is not an element of intent within the subject statute, N.J.S.A.
18A:37-14.
Therefore, I CONCLUDE that the respondent is not entitled to an Order granting
Summary 	Decision 	on 	its 	Cross-Motion 	based 	on 	Counts 	One 	and 	Two 	of 	the
petitioner’s Petition of Appeal; and I CONCLUDE that the respondent’s Cross-Motion
must be and hereby is DENIED.
SECTION TWO
Analysis of the Arguments Presented by the Petitioner and by the Respondent
An analysis of the petitioner’s arguments in favor of her motion for Summary
Decision on Count One of the Petition of Appeal are set forth below.
The Petitioner seeks a grant of Summary Decision on only Count One of her
Petition of Appeal. 	Petitioner’s arguments in favor of her motion for Summary Decision
are as follows. The essence of the petitioner’s argument is that N.J.S.A. 18A:37-14 only
applies to intentional conduct. Put another way, petitioner argues that an act of bullying
is an inherently intentional action. As such, it would be self-contradictory (i.e., under the
laws 	of 	logic, 	namely 	the 	classical 	law 	of 	non-contradiction) 	to 	assert 	that 	two
contradictory propositions can be true in the same sense at the same time. 	Thus, to
assert that the intentional act of bullying can be committed “unintentionally” is absurd.
The petitioner also asserts that evidence from the Department of Education’s
website 	supports 	petitioner’s 	assertion that bullying is 	intentional 	behavior. 	(The
Tribunal has not reviewed this evidence and makes no evaluation or factual finding
regarding it.)
The petitioner notes that the statute focuses on an actor’s conduct that is
motivated by a receiver’s distinguishing characteristics. 	Petitioner argues that it is
impossible to discuss the actor’s motive for committing an intentional act, when the BOE

15
admits that there was no intentional act in the first place. In the absence of intent to do
harm or to threaten harm, it is meaningless to discuss the actor’s motive.
Finally, the petitioner notes that the Superintendent’s letter of March 14, 2018,
expressly stated that Wehbeh “unintentionally engaged in bullying behavior” and that
Wehbeh “had no awareness of the potential negative impact on the victim.” 	The
petitioner 	points 	to 	the 	Superintendent’s 	admissions 	that 	Wehbeh’s 	conduct 	was
unintentional and that Wehbeh had no awareness of any potential harm to the student.
Therefore, Wehbeh cannot have committed the intentional act of bullying and cannot be
said to have intended to harm the student. 	It follows that Wehbeh is entitled to be
exonerated and the decision of the BOE should be reversed.
A 	summary 	of 	the 	respondent’s 	arguments 	seeking 	Summary 	Decision 	on
Counts One of the petitioner’s Petition of Appeal are as follows.
As to Count One, the respondent argues that the statute, N.J.S.A. 18A:37-14,
does 	not 	differentiate 	between 	intentional 	or 	unintentional 	conduct 	by 	the 	actor.
Respondent unequivocally stated its position that “the entire focus is on the ‘reasonable
perception’ of the victim.” 	In support of this argument respondent cites an OAL
decision, the case of L.K. and T.K. ex rel. A.K. v. Mansfield Board of Education, EDU
7067-16, 	Initial 	Decision 	(January 	22, 	2019), 	Final 	Decision 	(April 	22, 	2019),
http://njlaw.rutgers.edu/collections/oal. 	In that case, A.K., a girl of only seven years of
age, was found by the BOE to have committed an act of bullying. 	The BOE found that
A.K. had asked a second-grade boy several times on the school bus why he was
wearing girl’s clothing, not understanding [i.e., “not aware” or “not knowledgeable,”
wording supplied by this Tribunal] that the boy was “transitioning to female.” 	The ALJ
vacated the BOE’s decision, finding it to be against the weight of the evidence.
However, in interpreting the statute, the ALJ focused solely on how A.K.’s questions
were “reasonably perceived” by N3 (the boy in question) and the impact on him. 	The
ALJ further wrote that there was no requirement that the BOE find that A.K.’s conduct
was actually motivated by the perceived characteristic. (Here, this Tribunal supplied the
italics and I must note that the use of the word “motivated” appears to be synonymous

16
with the word “intended”.) 	Respondent notes that the Commissioner of Education
reversed the ALJ’s vacation of the BOE’s decision and dismissed A.K.’s appeal,
affirming that seven-year-old A.K. is a substantiated bully and did so without disturbing
the ALJ’s interpretation of the statute. 	The Respondent argues that Mansfield is now
the ruling case on the interpretation of the HIB statute and that this Tribunal must follow
the interpretation of the statute set forth by the ALJ in Mansfield. 	That interpretation is
that the Tribunal must only focus on how the actor’s words have been “reasonably
perceived” by the receiver and on the impact to the receiver. I do not agree.
The arguments raised in the appeal of A.K. are different from the arguments
raised in the case at bar. 	Here, the petitioner has pointed to evidence from the
Department of Education’s own website to the effect that the Department itself, despite
the Commissioner’s decision in Mansfield, may not have finalized its own position on
how it interprets the statute. That aside, the facts of the case at bar are vastly different
from those in Mansfield. 	Moreover, the issues and arguments presented in the case at
bar are very different from those presented in Mansfield, e.g., the issue of whether
intent is an element of the statute. 	I CONCLUDE the holding in Mansfield is not
controlling in the case at bar.
The thrust of the respondent’s arguments are, first, the actor’s intent is irrelevant,
since the words “intent,” “intends,” or “intentionally” are not expressly stated in the
statute and since the element of intent is not referred to in the statute.
The 	respondent 	argues, 	second, 	(following 	the 	Mansfield 	case) 	that 	the
Legislature intended that the school investigator’s duty was not to pass judgment upon
the reasonableness of the receiver’s perception of the actor’s motivation, but merely to
look to whether the receiver felt harmed or threatened (i.e., the impact which the
receiver alleges), regardless of the actor’s intent.
I perceive several flaws in the respondent’s arguments. 	First, while the statute
contains the phrase “reasonably perceived,” the respondent simply glosses over the
word “reasonably” and merely assumes that J.G.’s perception of Wehbeh’s words was a

17
reasonable perception. 	Apparently, the reason for this approach is the respondent’s
belief that the statute cloaks the complainant-victim with the authority to determine
whether his perception is reasonable. 	This is a subjective standard and, as will be
demonstrated below, it is not justified by the wording of the statute.
Second, the statute’s second paragraph is introduced by the conjunctive phrase
“and that.” 	The statute’s second paragraph, referencing an actor’s conduct (here,
Wehbeh’s words) contains the phrase “a reasonable person should know, under the
circumstances, will have the effect of physically or emotionally harming a student.” The
Respondent’s argument, as well as the Superintendent’s March 14, 2018, letter both
ignore the statute’s second paragraph. 	(Resp.’s Ex. G.) 	The respondent also failed to
address the inclusion of the word “know” in the statute and the support that word lends
to the petitioner’s argument. As will be demonstrated below, the concept of knowledge,
referred to in the statute, is linked to the concept of intent.
Third, 	the 	respondent’s 	position 	is 	that 	the 	victim’s 	perception 	subjectively
governs the meaning of the actor’s conduct. However, the wording of the statute makes
it clear that the Legislature expressly adopted the standard of the reasonable person,
which is an objective standard, for determining whether the receiver’s perception of the
actor’s conduct was accurate or inaccurate.
Basically, the Respondent’s argument is that the actor’s intent is irrelevant and
that it is only the impact of the actor’s words on the receiver that decides the question of
whether an act of HIB has occurred. 	This interpretation of the statute means that once
an actor makes a statement to a student (like Dr. Wehbeh recommending to J.G. that
she should not enroll in AP chemistry), then the actor will be strictly liable for the content
of her statement and will be found to have committed an act of HIB (i.e., of being a bully
with its attendant stigma and consequences) if the student subsequently claims to have
been offended or harmed by the actor’s statement (the advice not to enroll in the
course). 	Under this interpretation it would not matter at all if the actor’s (teacher’s)
motives or intent were completely free of any degree of malice. Under the respondent’s
interpretation of the statute (referencing the Mansfield case) “the statute focuses on the

18
impact of [the actor’s] A.K.’s conduct on [the receiver] N3 and what N3 reasonably
perceived.” 	If This is so, this means that there is no “reasonable person” test to serve
as a check on whether a receiver in N3’s position reasonably perceived that he or she
was harmed or threatened. Relying on Mansfield, the respondent’s interpretation of the
statute means that if the student actually feels threatened or harmed by the actor’s
words or other conduct, it is, per se, a reasonable perception, HIB is established. Under
the 	respondent’s 	interpretation, 	the 	receiver’s 	perception 	would 	be 	a 	reasonable
perception because the impact on him/her was created by the actor’s words regardless
of the actor’s intent. 	This means that the statute makes HIB a strict liability offense. 	I
CONCLUDE that there is no reasonable indication that the Legislature intended to
make HIB a strict liability offense.
Analysis of the definition of HIB found in N.J.S.A. 18A:37-14
As noted above, the definition of Harassment, Intimidation and Bullying set forth
in 	N.J.S.A. 	18A:37-14 	was 	re-defined 	in 	2010. 	[In 	the 	following 	recitation 	(the
“Tribunal’s recitation”) of the definition, I have added bold print, brackets, numbers, and
italics for the purpose of making the analysis of the statute’s elements easier to
comprehend. 	I have also employed, throughout this writing, the terms “actor” and
“receiver” to denote, respectively, the alleged bully and the alleged victim, the one who
receives harm from the bullying. 	The addition of bold print, brackets, numbers, and
italics will be referred to in the “One Additional Observation” section of this Initial
Decision.] The 2010 law refined the definition of HIB to include:
[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 [1A] reasonably perceived as
being 	[1B] 	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, [2] that takes place
on school property, at any school-sponsored function, on a
school bus, or takes place off school grounds as provided for
in N.J.S.A. 18A:37-15.3, [3A] that substantially disrupts or

19
interferes with the orderly operation of the school or [3B] the
rights of other students and that:
[4] 	a. 	a 	reasonable 	person 	should 	know, 	under 	the
circumstances, 	will 	have 	the 	effect 	of 	physically 	or
emotionally 	harming 	a 	student 	or 	damaging 	a 	student’s
property, or placing a student in reasonable fear of physical
or emotional harm to his person or damage to his property;
[5] b. has the effect of insulting or demeaning any student or
group of students; or
[6] 	c. 	creates 	a hostile 	educational 	environment for 	the
student by [6A] interfering with a student’s education or [6B]
be severely or pervasively causing physical or emotional
harm to the student.
[N.J.S.A. 18A:37-14 (emphasis added).]
The above-mentioned definition of HIB is part of a statute that prohibits and
seeks to eradicate the despicable conduct commonly referred-to as “bullying,” while not
infringing or chilling the rights of people whose conduct (physical acts, gestures and
speech) is innocent, legitimate and protected.
N.J.S.A. 18A:37-14 seeks to set forth a prohibition against harmful conduct
(whether physical acts, gestures or words) in the educational environment. In doing so,
the statute employs a variety of words and phrases in its attempt to identify instances of
conduct that are harmful. The statute proscribes gestures, physical acts or words which
are
“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 . . . and that a “‘reasonable person’ ‘should
know’ . . . will have the effect of physically or emotionally
harming a student . . . or placing a student in reasonable fear
of physical or emotional harm . . . .”
These words and phrases will be analyzed below.

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The Concept of Harmful Conduct
Harmful conduct occurs: 	(i) when the actor’s gestures, physical acts or words
are motivated by one or more of the receiver’s distinguishing characteristics and
reasonably perceived by the receiver as harmful and threatening; and (ii) when a
reasonable person in the same or similar circumstances in the actor’s position should
know that his or her gestures, physical acts or words will have the effect of harming a
student or placing the student in reasonable fear or physical or emotional harm; and (iii)
when the actor’s gestures, physical acts or words have the effect of insulting or
demeaning a student or group of students; or (iv) when the actor creates a hostile
educational environment for a student by interfering with the student’s education or by
severely or pervasively causing physical or emotional harm to the student.
The mechanism set forth in the statute to differentiate harmful conduct (that
which harasses, intimidates or bullies) from innocent conduct is one of cause and effect.
If the actor’s conduct is demonstrably harmful or threatening, it is the cause; and if the
receiver reasonably perceives the harmful conduct as harmful or threatening, it is the
effect. When both cause and effect are present, then the statute has been violated. 	In
the absence of one or the other, then the statute has not been violated. 	The issue of
the reasonableness of the perception will be addressed below.
The Concept of Reasonable Perception
We turn now to an examination of the phrase “reasonably perceived” as it
appears in the first paragraph of N.J.S.A. 18A:37-14.
If, in the first paragraph of the statute, the word “perceived” stood alone in the
text (i.e., without the adjective “reasonably” present to modify it) the statute would
establish a purely subjective standard by which to judge whether the actor’s gesture,
physical act or words constituted an occurrence of HIB. 	Under such a subjective
standard, any gesture, physical act or words which the receiver perceives to be
disparaging or threatening and which has been motivated by his or her distinguishing

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characteristics would be all that is needed to establish an occurrence of HIB. 	Under
such a subjective standard, the school authorities, the Board of Education, or the
Commissioner would be compelled to conclude that the statute was violated. 	The
argument offered by the respondent would make sense only if the word “perception”
stood alone. However, this is not what the Legislature intended because the Legislature
used the word “reasonable’ to modify the word “perceived.”
The word “perceived” does not stand alone in the text. It is modified by the word
“reasonably.” As used here, the word “reasonably” denotes a limitation. The use of the
word “reasonably” limits the ability of the receiver to assess the actor’s action (gestures,
physical acts or words) on a purely subjective basis. 	Before an occurrence of HIB can
be established, it must be demonstrated that the receiver’s perception of harm or a
threat was reasonable.
The use of the word “reasonably” as the modifier of the word “perceived” and the
statute’s employment of the term “reasonable person” in its second paragraph (N.J.S.A.
18A:37-14a) make it clear that the standard for assessing the actor’s conduct is an
objective standard, not a subjective standard. In other words, the applicable standard is
that of the “reasonable person.”
The 	word 	“motivated” 	and 	the 	phrase 	“reasonably 	perceived” 	are 	closely
connected in the statute. 	The receiver’s “reasonable perception” refers to his or her
assessment of the actor’s apparent motivation in making the gesture, performing the
physical act or saying the words. 	As already discussed, a plain reading of the statute
requires that the receiver’s perception must be a reasonable one. The word “motive” or
“motivation,” by definition, refers to what tempts or impels the actor to act. 	The statute
looks to the actor’s motive and sets it against the background of the receiver’s set of
distinguishing characteristics.
In order to be sure that a receiver’s perception qualifies as a reasonable
perception, a reviewing court must be reasonably certain that the receiver accurately
assessed the actor’s motivation. 	In other words, the Tribunal in an HIB case must be

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equipped with some way to verify the receiver’s accusation against the actor. 	The way
to test the veracity of the receiver is to resort to the standard of the reasonable person.
The Statute’s Employment of the Reasonable Person Standard
The statute’s use of the term “reasonable” in its first paragraph signals that the
standard that a court must use to determine the accuracy of the receiver’s perceptions
is that of the reasonable person. 	It follows that when receiver’s perception comports
with how a reasonable person would assess the actor’s conduct, then his assessment is
accurate. 	If the receiver accurately assesses both the actor’s motive and the presence
of a real threat or insult to his or her physical or emotional safety, then and only then, is
his or her perception a reasonable perception of an improper motivation, and a threat of
harm, etc.
The concept of the reasonable person has its origins in the law of torts. 	Cf.
William L. Prosser, The Law of Torts, West Publishing Co., 4th Ed. (1971) pp. 149-52.
In tort law it is useful in determining whether a defendant has acted reasonably. 	In
criminal law it is useful in determining whether self defense is a viable defense. 	In
contract law it is useful in determining contractual intent. In the statute under discussion
in this case, the Legislature has expressly incorporated the standard of the reasonable
person to determine the reasonableness of the receiver’s perception and as a measure
of the actor’s awareness of the probable consequences of his acts, gestures, or words.
After introducing the standard of the reasonable person in its first paragraph, the
statute reiterates its use of the reasonable person standard in its second paragraph.
This underscores the Legislature’s intention to utilize the reasonable person standard in
the interpretation and in the application of this statute. 	The statute states in its second
paragraph that a reasonable person (the actor) should be able to know what gestures,
physical acts, or words will have the effect of harming a student. 	The statute’s use of
the word “know” raises another issue—the meaning of the word. As will be seen below,
the discussion of the word “know” and the phrase “should know,” inevitably leads to a
discussion of the concept of “intent.”

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The concept of intent is the core of petitioner’s Petition of Appeal, Count One.
The petitioner’s argument is that intent is a necessary element of HIB. The respondent
BOE’s argument is that intent is not an element of HIB and that HIB can be committed
unintentionally.
The Concepts of Knowledge and Intent
Now that it has been established that the statute employs the standard of the
reasonable person, we will move on to an analysis of what the phrase “should know”
means, as set forth in the second paragraph of N.J.S.A. 18A:37-14. 	The second
paragraph 	refers 	to 	what 	a 	reasonable 	person 	“should 	know” 	about 	the 	likely
consequences of his conduct. The text of the statute says that a reasonable person:
should know [that his conduct], under the circumstances, will
have 	the 	effect 	of 	physically 	or 	emotionally 	harming 	a
student . . . or placing a student in reasonable fear of
physical or emotional harm to his person . . . .
The first paragraph of the definition of HIB refers to gestures, physical acts, and words
that are reasonably perceived as being motivated by the receiver’s distinguishing
characteristics. 	In the second paragraph of the definition of HIB it refers to what “a
reasonable person [in the position of the actor] should know, under the circumstances,
will have the effect of physically harming a student . . . or placing a student in
reasonable fear of physical or emotional harm.” 	The word “know” means “to have
knowledge” or “to be aware.” See Merriam-Webster Dictionary. As used in the statute,
the term “should know” denotes conscious awareness of one’s actions because it is
linked to the phrase “will have the effect of physically or emotionally harming a student.”
This means that the actor has the capacity to know what will result from his or her
actions and therefore it excludes accidental or unconscious insults or other unintended
consequences.
This brings us to the issue of whether “intent” is included in the statute. 	Intent is
the state of a person’s mind that directs his actions toward a specific object. 	See The

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Random House College Dictionary, Revised Edition. 	The word “intent” expresses
mental action and shows the presence of a person’s will in the act. 	See Black’s Law
Dictionary, West Publishing Company, Revised Fourth Edition. 	The statute must be
read in its entirety. 	The first two paragraphs of the statute must be read together. 	A
plain reading of the statute shows that the Legislature incorporated the element of intent
by using the phrase “should know” and by connecting the phrase “should know” to the
phrase “will have the effect.” 	When the statute requires that the actor must or should
“know” that his gestures, physical acts, or words “will have the effect of . . . harming a
student,” then the statute is referring to and focusing on the actor’s intent. 	In other
words, a plain reading of the statute shows that it contains the requirement that the
actor’s intent must be demonstrated in order to establish an occurrence of HIB.
From the foregoing analysis, I CONCLUDE that the Legislature, by using the
words “reasonable person” in the statute, incorporated the objective, reasonable person
standard for distinguishing harmful conduct from innocent conduct.
I CONCLUDE that the actor’s intent is an element in the statute.
I CONCLUDE that in order to establish an occurrence of HIB, it is necessary that
the actor’s intent to harm or to threaten or to disrupt must be demonstrated.
I CONCLUDE that an occurrence of HIB cannot occur in the absence of intent.
I CONCLUDE that an actor cannot “unintentionally” commit an act of HIB.
I CONCLUDE that by linking the phrase “should know” to the phrase “will have
the effect” the Legislature meant that before an act of HIB can be established it must be
demonstrated that the actor had a reasonable degree of awareness that his or her
gestures, physical acts, or words were likely to cause harm to a student or instill a
reasonable fear of harm in a student.

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I CONCLUDE that because the Superintendent’s letter dated March 14, 2018,
states that Wehbeh “unintentionally engaged in bullying behavior” and because Wehbeh
“had no awareness of the potential negative impact on the victim,” it means that the
intent required for a violation of N.J.S.A. 18A-37-14 was lacking. 	(Petr.’s Ex. A and
Resp.’s Ex. G.)
Accordingly, for the aforesaid reasons, the respondent’s motion for summary
decision is denied and the BOE’s determination that Wehbeh violated the HIB statute
must be, and hereby is, REVERSED.
Accordingly, for the aforesaid reasons, the petitioner’s motion for summary
decision on Count One of her Petition of Appeal must be, hereby is, GRANTED.
One Additional Observation
Although it was not directly argued in either side’s papers, the Tribunal finds it
necessary to address another aspect of this case.
In the Superintendent’s letter dated March 14, 2018, Wehbeh was told that “the
district found evidence of the investigated act of harassment, intimidation and bullying.”
(Petr.’s Ex. A and Resp.’s Ex. G.) 	Using underlining, Superintendent stated that
“Wehbeh’s conduct met the following elements of the definition of HIB set forth in
N.J.S.A. 18A:37-14. Specifically, the Superintendent stated:
According to the definition of HIB, the incident met the
following: 	Harassment, Intimidation or bullying means any
gesture, any written, verbal or physical act, or any electronic
communications, whether 	it 	be 	single 	or 	a 	series 	of
incidents that:
(i) 	is reasonably perceived as being motivated by any
actual or perceived characteristic [such as] mental, physical
or sensory disability . . .
(ii) 	[that] “takes place on school property . . .

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(iii) 	[that] 	“substantially 	disrupts 	or 	interferes 	with 	the
orderly 	operation 	of 	the 	school 	or 	the 	rights 	of 	other
student(s).
It is noteworthy that the evidence referred to by the Superintendent
supported elements contained in the statute’s first paragraph but does not
mention whether the evidence supports any of the elements contained in
the statute’s second paragraph. 	Utilizing this writer’s recitation of the
statute employing bold print, brackets, and italics, in the section of this
Initial Decision titled “Analysis of the statutory definition of HIB found in
N.J.S.A. 18A:37-14,” found on pages 18 to 19, we see that that first
paragraph of the statute contains elements [1A], [1B], [2], [3A], and [3B].
The second paragraph of the statute contains elements [4], [5], [6], [6A],
and [6B]. 	The underlined portions of the Superintendent’s March 14,
2018, letter, cited above, cover only elements [1A], [1B], [2], [3A], and
[3B]. They do not cover elements [4], [5], [6], [6A], and [6B].
Referring again to the Superintendent’s March 14, 2018, letter, it subsequently
informs Wehbeh that she “unintentionally engaged in bullying behavior and had no
awareness of the potential negative impact on the victim.”
The letter made no other findings. In the same paragraph, immediately following
these 	words, 	the 	Superintendent 	wrote 	dicta 	(i.e., 	“[t]hat 	the 	effects 	of 	HIB 	can
substantially disrupt or interfere with the rights of a student”), which is clearly not a set
of findings.
It is noteworthy that the Superintendent’s March 14, 2018, letter does not state
that Wehbeh had substantially interrupted or interfered with J.G.’s rights. It did not state
that Wehbeh interfered with J.G.’s education. 	It did not state that Wehbeh had created
a hostile educational environment. It did not state that Wehbeh had caused physical or
emotional harm to J.G. 	Indeed, the letter’s findings were not as broad as the opinions
expressed by the investigator in the HIB Summary. 	(Petr.’s Ex. B and Resp.’s Ex. C).

27
Had the Superintendent intended to adopt all the investigator’s opinions, he would have
said so.
The Superintendent did not cite the text of the second paragraph of the statute
(elements [4], [5], [6], [6A], and [6B]) and did not underline them as he did with elements
[1A], [1B], [2], [3A], and [3B]. 	If he had done so, then he would have been stating his
conclusion that the evidence demonstrated that Wehbeh was aware of (i.e., had
knowledge of) the effect of her words. 	If Wehbeh had been aware of the potential
effects 	of 	her 	words, 	then 	the 	Superintendent 	would 	not 	and 	could 	not 	have
characterized Wehbeh’s conduct as “unintentional.” 	The fact that the Superintendent
did not cite and underline elements from the second paragraph of the statute indicates
that he did not consider the elements of the second paragraph to have been satisfied by
the evidence.
From the foregoing, I CONCLUDE that the contents of the March 14, 2018,
Superintendent letter are inadequate to support a finding of HIB. 	Since it appears that
the BOE’s decision was based only upon the findings set forth in the letter, then the
BOE’s decision was not based on the entire definition of HIB set forth in the statute and
therefore it must be, and hereby is, REVERSED.
ORDER
Based upon the foregoing, I hereby ORDER that respondent’s Cross-Motion for
Summary Decision is 	DENIED; and I further 	ORDER 	that petitioner’s 	Motion for
Summary Decision is GRANTED and that the BOE’s determination that Wehbeh
violated the HIB statute 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

28
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.
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, P.O. 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.
December 24, 2019
DATE 	JOHN P. SCOLLO, ALJ
Date Received at Agency:
Date Mailed to Parties:
db

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APPENDIX
List of Moving Papers
For Petitioner:
Motion for Summary Decision
Opposition Papers to Cross-Motion
For Respondent:
Opposition to petitioner’s Motion for Summary Decision
Cross-Motion seeking Summary Decision