M.S. and N.S., on behalf of minor child, J.S. v. Board of Education of the Township of Hainesport, Burlington County, 6/18/19, (#155-19)

155-19
New Jersey Commissioner of Education
Final Decision
M.S. and N.S., on behalf of minor child, J.S.,
Petitioners,
v.
Board of Education of the Township of Hainesport,
Burlington County,
Respondent,
and
J.M. and D.M., on behalf of minor child, J.M.,
Intervenors.
Synopsis
Petitioners challenged the finding of the respondent Board that their son, J.S., engaged in conduct against a
fellow student, J.M., that violated the New Jersey Anti-Bullying Bill of Rights Act (the Act), N.J.S.A. 18A:37-
13 et seq. The Act prohibits harassment, intimidation and bullying (HIB) arising from certain defined
motivations. Petitioners sought a determination that the Board’s decision was arbitrary, capricious or
unreasonable, contending that the conduct at issue was part of a longstanding and ongoing conflict between J.S.
and J.M., and did not constitute an instance of bullying within the statutory definition of HIB. The respondent
Board filed a motion for summary decision; opposing motions for summary decision were filed by the
petitioners and the intervenors.
The ALJ found, inter alia, that: there are no material facts in dispute here, and the matter is ripe for summary
decision; the record establishes that J.S. and J.M. have had conflicts with each other since the first grade;
ongoing unresolved conflict between two students does not necessarily fall within the statutory definition of
HIB; however, a backdrop of such ongoing conflict does not insulate the conduct under review from being
properly determined to be in violation of the Act; in the instant matter, J.S. admitted that he called J.M. “weak”,
and student witnesses corroborated that J.S. also referred to J.M. as a “weakling,” during an incident in seventh
grade wherein J.S. tried to slam down the lid of J.M.’s Chromebook during class; such a comment, especially
during a physical confrontation, could reasonably cause embarrassment to the recipient of the remarks. The ALJ
concluded that the Board was not arbitrary, capricious or unreasonable in determining that J.S. engaged in
conduct that violated the Act, nor were the sanctions imposed upon J.S. for his behavior inappropriate.
Accordingly, the ALJ ordered that petitioners’ appeal be denied.
Upon 	review, 	the 	Commissioner 	agreed 	with 	the 	ALJ’s 	findings 	and 	conclusion, 	and 	adopted 	the
Initial Decision as the final decision in this matter. In so doing, the Commissioner emphasized that overturning a
Board’s finding of HIB presents a high hurdle, requiring clear evidence that the Board acted indiscriminately or
in bad faith in reaching its determination . Such was not the case here. 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.
June 18, 2019

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OAL Dkt. No. EDU 08878-16
Agency Dkt. No. 151-5/16
New Jersey Commissioner of Education
Final Decision
M.S. and N.S., on behalf of minor child, J.S.,
Petitioners,
v.
Board 	of 	Education 	of 	the 	Township 	of
Hainesport, Burlington County,
Respondent,
and
J.M. and D.M., on behalf of minor child, J.M.,
Intervenors.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. The parties did not file exceptions.
In this matter, petitioners challenge the Board’s determination that their son
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. This case stems from a complaint made by
the parents of J.M. in January 2016, alleging that J.S. slammed J.M’s Chromebook, pulled on his
earbuds, called him a “weakling,” and commented on J.M.’s athletic ability, using the phrase
“you suck.” Following an HIB investigation, the school district’s Anti-Bullying Specialist issued
a report substantiating the HIB allegation. 	The report found that J.S.’s actions constituted HIB
because the conduct was: motivated by J.M.’s distinguishing characteristics of being weak and
bad at sports; substantially disrupted or interfered with the orderly operation of the school or the

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rights of other pupils; 	and caused J.M. to feel embarrassed. As a result, J.S. was given a
one-day, 	in-school 	suspension 	and 	his 	schedule 	was 	adjusted 	to 	limit 	interaction 	with
J.M. 	Thereafter, 	the Board 	affirmed 	the HIB 	findings. 	Petitioners 	appealed 	the Board’s
determination. 	Following motions for summary decision, the Administrative Law Judge (ALJ)
found that the Board’s HIB determination was not arbitrary, capricious, or unreasonable.
As a preliminary matter, in cases where a challenge to the decision of a local board of
education is brought before the Commissioner, such challenge is subject to a high standard of review
based upon the deference which must be granted to a board’s good faith determination of the issues
presented by the facts of the case. It is well established that any “action of the local board which
lies within the area of its discretionary powers may not be upset unless patently arbitrary, without
rational basis or induced by improper motives.” 	Kopera v. W. Orange Bd. of Educ., 60 N.J.
Super. 288 (App. Div. 1960). 	In order to prevail, the petitioners must establish that “the Board
acted in bad faith, or in utter disregard of the circumstances before it.” G.H. and E.H., on behalf
of K.H. v. Bd. of Educ. of the Borough of Franklin Lakes, Bergen County, EDU 13204-13,
Initial Decision 	(February 	24, 	2014), 	adopted 	Commissioner 	Decision 	No. 	157-14
(April 10, 2014). Furthermore, “[w]here there is room for two opinions, action is not arbitrary or
capricious when exercised honestly and upon due consideration,” such that the Commissioner
will not substitute his opinion for that of the board, even if he would have come to a different
conclusion. Bayshore Sewerage Co. Dep’t of Envtl. Prot., 122 N.J. Super. 184 (1973), aff’d 131
N.J. Super. 37 (App. Div. 1974). In the case at issue here, the ALJ noted: “[w]hile some finder
of fact might conclude otherwise, where there is more than one reasonable way to understand a
set of facts, it cannot be said that the choice of one reasonable interpretation over the other
reasonable interpretation amounts to an unreasonable choice.” (Initial Decision at 14)

3
Based on the foregoing, the Commissioner emphasizes that overturning a board of
education’s finding of HIB presents a high hurdle, requiring clear evidence that the board acted
indiscriminately or in bad faith in reaching its determination. 	Here, the Commissioner concurs
with the ALJ that the Board’s determination was carefully considered, and that it was not
arbitrary, capricious or unreasonable in finding that J.S.’s conduct constituted HIB. 	It was
reasonable for the Board to conclude, on the evidence presented, that J.M. had the distinguishing
characteristic of being weak, and J.S.’s comment that he was a “weakling” was motivated by that
characteristic. Likewise, it was not unreasonable for the Board to find that J.M. was embarrassed
by the comment.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in
this matter – for the reasons thoroughly set forth in the Initial Decision – and the petition of
appeal is hereby dismissed.
IT IS SO ORDERED.1
COMMISSIONER OF EDUCATION
Date of Decision: 	June 18, 2019
Date of Mailing: 	June 19, 2019
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008,
c. 36 (N.J.S.A 18A:6-9.1).

1
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 8878-16
AGENCY DKT. NO. 151-5/16
M.S. and N.S. on behalf of minor child,
J.S.,
Petitioners,
v.
BOARD OF EDUCATION OF THE
TOWNSHIP OF HAINESPORT,
BURLINGTON COUNTY,
Respondent,
And,
J.M. and D.M., on behalf of minor child,
J.M.,
Intervenors.
_______________________________
Seth N. Broder, Esq., for petitioners (Broder Law Group, attorneys)
Sanmathi Dev, Esq., for respondent (Capehart & Scatchard, P.A.,
attorneys)
Howard S. Mendelson, Esq., for intervenors (Davis & Mendelson, LLC, attorneys)
Record Closed: February 11, 2019 	Decided: March 28, 2019

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BEFORE JEFF S. MASIN, ALJ (Ret., on recall):
This contested case arises from a petition of appeal filed with the Commissioner of
Education on May 24, 2016, by M.S. and N.S., the parents of J.S., a minor. 	The petitioners
seek to overturn a determination made by the Hainesport Township Board of Education that
their minor child had engaged in conduct against a fellow student, J.M., that violated the Anti-
Bullying 	Bill 	of 	Rights, 	N.J.S.A. 	18A:13-2 	et 	seq. 	(Act), 	which 	prohibits 	harassment,
intimidation and bullying (HIB) arising from certain defined motivations. The Commissioner
transferred the matter to the Office of Administrative Law (OAL). 	Counsel for the Board of
Education filed a motion to dismiss the petition for failure to name an indispensable party. On
August 15, 2018, the day after this judge assumed responsibility for the case originally
assigned to a different judge, this judge signed an Order granting intervention to intervening
parents, J.M. and D.M., on behalf of their minor child J.M., and denying the Board’s motion to
dismiss. A Confidentiality Order wsas issued on October 23, 2018, with respect to the
disclosure of student records and student information. 	Counsel for the Board then filed a
motion for summary decision, as authorized by N.J.A.C. 1:1-12.5. 	The petitioner and
intervenor have responded to the motion, each also seeking summary decision.
The essence of the petitioners’ appeal is that the conduct that the Board found to
violate the law was actually part of a longstanding and ongoing unresolved conflict between
students J.S. and J.M. and did not constitute an instance of bullying falling within the statutory
definition of HIB. 	It was not, as the statute requires, conduct motivated by a “distinguishing
characteristic,” actual or perceived. As such, no violation of the Act occurred and the Board’s
decision must be overturned, as it was arbitrary, capricious and unreasonable. In addition, as
the facts underlying the Board’s decision are not in dispute, summary decision is an
appropriate means of resolving the contested case.
In January 2016, J.S., a seventh-grader, received a Disciplinary Referral based upon a
teacher’s statement that he had made “comments to another student calling him ‘weak’ and
‘weakling’ and made comments about the student’s athletic ability.” 	This Referral was the
result of an email sent to the Assistant Principal, Christopher Butler, on January 5 by J.M.’s
father. In that email, Mr. M. explained that his son had appeared bothered by something and
he revealed to his parents that J.S. “was at it again.” 	More specifically, that J.S. had

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slammed the lid on J.M.’s Chromebook in Ms. Kraft’s class that very day, had kept pulling on
J.M.’s earbuds, had prevented J.M. from opening the lid of the Chromebook, pushing it down
so that J.M. had to “let it down slowly so it wouldn’t break,” had called J.M. a “weakling” and
“got other kids to do the same thing.”2 	Further, J.M. had been telling other children about a
football launcher he received for Christmas and J.S. told J.M. to “shut up no one cares, that’s
how you got your black eye, you can’t catch. You suck.” 	In fact, J.M. had the remnants of a
black eye that his father said he had gotten accidently when elbowed by his brother. 	He
further reported that J.S. kept making hand gestures at J.M. “and points at him and says
‘boooy.’” 	He imitates J.M. “by acting like he is a person with mental disabilities.” 	Mr. M.
noted that while J.M. is trying to show restraint, he is bothered most by J.S’s turning “the
other kids against him.” “This bullying everyday is starting to take a toll. It NEEDS to stop!”
Mr. Butler responded to the email, noting that he needed to investigate the incident to
determine if it met the definition of HIB. According to the Board’s brief, Mr. M. was “extremely
disappointed by this response.” He advised Butler that “This has been going on everyday for
the past 7 years with this kid! . . . Everyone of the criterial has been met . . . .”
After receipt of the email and issuance of the Referral, a “full Level II” investigation was
conducted by the District’s Investigating Anti-Bullying Specialist Rose Wenz. 	According to
her 	“Final 	Determination 	& 	Conclusion 	of 	the 	Level 	(2) 	Investigation 	Report 	to
Superintendent,” signed by Wenz, Christopher Butler and Superintendent Joseph Campisi, all
on January 20, 2016, J.M. complained that on January 5, 2016, J.S. called J.M. “weak” and
“weakling” and made comments about J.M.’s athletic ability, stating, “you suck.” J.M. told his
father about this and requested that his father call the school to report it. 	The child stated
that he felt “embarrassed” by the comment that he was a “weakling,” a comment made in
front of other members of his class. 	The report of the investigation, which accepted that the
comments were made, concluded that the comments made by J.S. were about an actual or
perceived characteristic or other identifiable characteristic of J.M.; that the comment(s) had
“substantially disrupted or interfered with the orderly operation of the school or the rights of
other pupils; and that the act(s) had a physical or emotional harm to a pupil or the pupil’s
property, 	or 	had 	the effect of 	insulting the 	student 	and 	created 	a hostile 	educational
2Elsewhere, Ms. Kraft is identified as a substitute teacher.

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environment for J.M.” 	Thus, the conduct violated the Act. 	On January 20, 2016, Mr. Butler
advised J.S.’s parents by mail of the substantiation of the charges and the consequence to
be imposed. This involved a one-day in-school suspension for J.S. and an adjustment to his
academic schedule “to limit interaction.”
The petitioners’ motion notes that Rose Wenz’s Level I investigation concluded that
she saw it as “possible” that the conduct being examined was “reasonably perceived as being
motivated by either actual or perceived characteristic . . . or other characteristic.” The moving
papers offer portions of the recorded responses of students interviewed by Wenz and Butler.
It notes that at the “first” appeal from the findings, the Board heard in closed session from
N.S. of the history of the two students not getting along while at school and that they mutually
participated in the ongoing conflict, citing to the Board an example from October 2015.
According to the movants, J.M.’s parents were not in attendance at this first appeal. After the
closed session, the Board, in open meeting, split 4-4 with 1 member absent, and could not
affirm, reject or modify the HIB finding. The matter was then placed on the Board agenda for
the next meeting, scheduled for February 25, 2016. 	Then, on January 30, 2016, Mr. M.,
parent of J.M., emailed to the then District Superintendent, Joseph Campisi, sharing with him
a text from “Mrs. Richmond” from May 23, 2013 (fourth grade) in which she acknowledged
that J.S. was causing problems with J.M. The parent, Mr. M., added, “As I have mentioned to
you and to Mr. Butler, this harassment by [J.S.] has been going on since first grade.”
At the February 25, 2016, Board meeting, J.M.’s parents spoke, as well as Ms. S. and
Ms. Wenz. 	The petitioners assert that J.M.’s parents’ statements appeared to have been
“coached by someone with a working knowledge of HIB.” 	After Mr. Butler explained the two
boys’ history of conflict and the various interventions implemented by the schools, N.S. noted
that at times the boys have been able to get along. 	N.S. noted that while the incident had
occurred, 	J.S. 	had 	reacted 	to 	J.M. 	searching 	the 	term 	“grandma 	shoes” 	on 	J.M.’s
Chromebook to show examples of “grandma shoes” to J.S. 	The parents of J.M. argued that
their child had been the target of ongoing HIB by J.S., with problems going back to first
grade. Also, that J.S. had pushed so hard on the notebook lid so as to bend it, causing J.M.
to fear that it would break. The Board then voted in open session to affirm the HIB finding by
a vote of 5-4, with 2 members who had voted at the first appeal to reject the finding not
present at the second appeal.

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According to the petitioners, at the time of the alleged conduct, the two students were
in seventh grade in the Hainesport Middle School. 	They had been first graders together at
the Hainesport Elementary School, and it was there that they first engaged in a voluntary
dispute mediation. 	Thus, as the petitioners argue, their disruptive interaction began quite
early in their educational career. As a result of the mediation, they agreed that they would (1)
stop making fun of each other and their clothing; (2) if they accidentally did something to each
other, they would say they were sorry, (3) they would talk to each other if either had a
problem or a question, and (4) they would agree to disagree, acknowledging that it was “O.K.
to like different things.” According to a Certification filed on January 24, 2019, as part of their
motion for summary decision, M.S. and N.S., on behalf of J.S., contend that J.M. was, at the
time of this alleged incident, of a “much larger physical stature and build than J.S.” and “J.S.
did not perceive, nor was he motivated to make any comments, based on J.M. having the
distinguishing characteristics or being weak or bad at sports.” They claim that due to the
findings of the HIB investigation, J.S. had his student schedule adjusted and was required to
meet with a school counselor. 	His homeroom teacher was changed, and his remaining
course schedule was changed. 	He was also moved away from his peer group for the
duration of the school year. After the petitioners requested a hearing before the school board
to appeal the HIB determination, J.M. continued to taunt J.S. by staring at him and smirking,
and “overall attempting to instigate additional conflicts.”
Legal Principles
Before considering the evidence and the arguments, it may be helpful to note the legal
context.
The Anti-Bullying Act, N.J.S.A. 18A:37-14 provides that
“Harassment, intimidation and bullying” means any gesture, any written, verbal or
physical act, or any electronic communication, whether it be a single incident or a
series of incidents, that is reasonably perceived as being motivated either by any
actual or perceived characteristic, such as race, color, religion, ancestry, national
origin, gender, sexual orientation, gender identity and expression, or a mental,
physical or sensory disability, or by any other distinguishing characteristic, that

6
takes place on school property, . . . that substantially disrupts or interferes with
the orderly operation of the school or the rights of other students . . . .
N.J.S.A. 18A:37-14 identifies the following as necessary for a gesture, act or communication
to be deemed prohibited.
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.
The Act made local school boards responsible for the supervision of HIB policy within the
districts, but required that local policies conform, at a minimum, to all applicable statutes and
case law.
It is important here to note that not all disputes between students, not all actions that
may involve harassment, intimidation and bullying, necessarily come within the reach of the
Act. 	The motivating element of the matter must be a “distinguishing characteristic, actual or
perceived, such as identified in the Act.” 	Some single incidents and long-standing disputes
between students may not be based upon such prohibited reasons, and where that is the
case, other legal or disciplinary remedies may lie, but the situation is not one that falls within
the reach of the Act. 	L.B.T. ex rel K.T. v. Board of Education of the Freehold Regional
School District, OAL Dkt. No. EDU 7894-12 (January 24, 3013), adopted, Comm’r (March 7,
2013). As the court noted in K.L. v. Evesham Township Board of Education, 423 N.J. Super.
337, 351 (App. Div. 2011), for purposes of HIB the offending conduct must be motivated by a
distinguishing characteristic. 	The statutory definition of HIB “does not include all violent or
aggressive conduct against a student,” but it has consistently required that the perceived
motivation be a distinguishing characteristic. 423 N.J. Super. at 350–51. 	The court also
provided a summation of what does not constitute HIB:
Thus, harmful or demeaning conduct motivated only by another reason, for
example, a dispute about relationships or personal belongings, or aggressive

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conduct 	without 	identifiable 	motivation, 	does 	not 	come 	within 	the 	statutory
definition of bullying.
[Id. at 351.]
Before further considering the evidence before the Board and the arguments of the
parties, it is also necessary to recall the legal standard under which such review takes place.
As the petitioners recognize, the Commissioner of Education will not disturb the local school
board decision unless it was arbitrary, capricious or unreasonable. Kopera v. W. Orange Bd.
of Educ., 60 N.J. Super. 288, 294 (App. Div. 1960).; Thomas v. Morris Twp. Bd. of Educ., 89
N.J. Super. 327, 332 (App. Div. 1965), aff'd, 46 N.J. 581(1966)). 	Thus, if the overall
assessment of the evidence that the Board had before it will support a reasonable outcome
that matches the Board’s, the Commissioner will affirm the Board’s decision, even if the
Commissioner might have ruled differently on the same evidence. 	Of course, the Board’s
decision must also conform with the standards set in case law for understanding the Act. But
to successfully overturn the Board’s decision, the petitioners must demonstrate that “the
Board acted in bad faith, or in utter disregard, of the circumstances before it.” G.H. & E.H. ex
rel. K.H. v. Bd. Of Educ. of the Bor. of Franklin Lakes, EDU 13204-13, Initial Decision
(February 24, 2014) (adopted, Comm’r (April 10, 2014).
Finally, it must be noted that the only determination sustained by the Board was J.S.’s
comment to J.M. that J.M. was “weak.” 	“Specifically, the requirements of HIB were met.
First, the conduct in question was reasonably perceived as being motivated by an actual or
perceived characteristic—the characteristic of being weak.” 	The summary of the Board
hearing of February 25, 2016, notes that Mrs. S. admitted that her son called J.M. “a
weakling.” 	The summary does not specifically make a determination about any comment
about J.M.’s athletic ability. It is the case that during the investigation students reported other
comments made by J.S. about J.M., on other occasions. 	It is also the case that students,
including J.S. and even J.M., reported comments made by J.M. about J.S. 	However, the
only HIB complaint made and subsequently investigated by Wenz was about a specific
incident involving a Chromebook on January 5, 2016, and the Board’s determination was
specifically about that event. 	Thus, while there is much comment in briefs and evidential
material about other interactions between the boys, this information can only serve as some
historical information, and cannot result in determinations about other possible HIB violations,

8
or other disciplinary violations. 	To the extent that the petitioners note the ongoing conflict
between the students, that does not seem to be a disputed matter. 	The case, however, is
about what occurred on January 5, and whether that incident, and that incident alone,
involved any HIB violation. 	If other potential HIB events occurred involving these two
students, such matters were not the subject of a complaint before the Board, nor are they
before the Commissioner or this forum.
Thus, as noted, the thrust of petitioners’ argument is that rather than the January 2016
incident having been motivated by some actual or perceived characteristic of J.M., it was
simply the latest of a long-standing history of mutual disagreement between the two students.
Indeed, the undisputed fact is that J.M. and J.S. have had issues with each other at least as
far back as 2010, when they were in first grade. 	Indeed, Mr. M., in his response to Mr.
Butler’s stating that he needed to investigate the January incident, referred to what he said
had been going on for “7 years with this kid!” According to the petitioners, “[T]he evidence is
overwhelming demonstrable that the incidents in the present matter were all part of a longer
on-going and unresolved conflict . . . and not instances of bullying that fall within the statutory
language of conduct motivated by a distinguishing characteristic. . . . ” 	While admitting that
their son made comments about J.M., including “weak” and “weakling,” “they were motivated
by a longer on-going history of conflict between the students.” Indeed, they note that students
told the investigators that J.M. called J.S. “small,” which they see as “an insult comparable to
‘weakling.’” “Thus, J.S. did not perceive J.M. to be a weakling.”
Review of the investigative materials supplied by the movant indicates that Rose Wenz
discussed the alleged incident with J.M. on January 7, 2016. 	In a written statement, he said
that J.S. “slamed [sic] my chromebook shut and kept pulling out my earbuds. [I.V.] and [A.S.]
were doing it as well.” 	He did not tell his teacher, but did tell his father to email Mr. Butler.
He was also presented with a form questionnaire, which asked at No. 3., “[W]hen and where
did the incident happen? (Please be clear if occurred was once or more than once).”
Although the phrasing of the question is certainly unclear, J.M. understood it and wrote “Mrs.
Higgins room since first grade at hainesport.” 	As for the description of what “[E]xactly . . .
was said or what was specifically done by the person . . . you believed harassed, intimidated,
or bullied you,” he wrote, “Slaming [sic] of the chromebook. He also called me a ‘weakling.’”
J.M. reported that he felt “imbarassed [sic] in that is reasonably perceived as being motivated
either by any actual or perceived characteristic, such as race, color, religion, ancestry,

9
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, front of other kids.” 	Asked if the incident harmed his property, he said that
“[H]e was bending the chromebook lid.” 	And, as to whether the incident caused him “fear,
physical or emotional harm,” he repeated that “I felt embarrassed.” J.M. also added that “I’ve
been called names by him (gay, girl, weakling, Jewish) He calls me mentally challenged and
does a thing with his hands.” 	As to this latter quote, he did not provide any time frame for
when these comments were made, other than the reference to “weakling” as the term used in
the Chromebook incident of January 5.
Wenz first spoke to J.S. on January 7. He said that he pulled J.M.’s earbuds because
“his music was to [sic] loud.” He added, “we were messing around about [unclear from written
statement] and he took it to [sic] hard. And we never called Jew boy never made fun of him
for black eye never heard hitler prototype we picked each other 4 project he called me lil bill
and I called him [unclear from written statement].” 	Also, “Never said anything about his
cabability [sic] of playing sports.” 	Wenz also spoke to J.S., on January 12, 2016. 	He said
that he did “not feel like I did anything wrong, and he was bulling me and I fought back and I
am not going to let someone bully me.” He gave the names of students that he said might be
witnesses to the “situation.” 	He admitted that he did call J.M. “weak.” 	He did this “because
he told me I have grandma shoes, and trips me so I said things back and stood up for my
selfe [sic].” He added, “[J.M.] picks on me and calls me grandma shoes, and trips me.” Also,
“[J.M.] tells [J.S.] he has grandma shoes he trips him during PE just prior to winter break.
J[M.] just said he has grandmom shoes for no reason. He looked up grandmom shoes on his
chromebook during math.”
These represent the description of the alleged HIB incident from the complainant and
the response from the alleged perpetrator. 	In addition to these, the investigation produced
information gathered from other students. 	Student I.V., identified by J.M. as also involved in
the events that day, told Ms. Wenz on January 7 that J.S. “called J.M. Caihou and little bill.”3
He also calls him “Hitler’s prototype.” 	[J.S.] and J.H. tried to turn off and take [J.M.]’s
3 While the reference to “Caihou” is not explained, from personal knowledge, it appears to be to a character in
an animated television program for young children, “Caillou.” The reference to “little bill” is not explained, but
again it appears to be to a character by that name in an animated television program for young children.

10
earbuds/chromebook. 	[J.S.] and [J.M.] sometimes throw paper and erasers at each other.”
He advised that his whole class had witnessed the Chromebook and earbuds incident. The
comment about “Caihou” and “little bill”, as well as “weakling,” were made on “Monday” in
math class; the “Hitler” comment in lunch “prior to break.” 	On January 14, he told Wenz that
he had never heard J.M. make fun of J.S.’s shoes or say that they were “grandmom” shoes.
D.S. told Wenz on January 11, that he heard both boys make fun of each other; “it isn’t
just one side.” J.S. calls J.M. “weak, not good at sports, and make [sic] fun of him for playing
flag football. [J.M.] makes fun of him in general. 	It is starting to pick up.” 	He reported that
this activity occurred “mainly at lunch and gym and homeroom.” As for the “Hitler” comment,
he had only heard that such a comment was made from someone else. 	He also noted that
“[J.M.] says to [J.S.] ‘you are small,’ while J.S. ‘makes more direct insults.’” 	He reported that
J.S. “talks about [J.M.] to everyone at lunch table,” commenting on how J.M. “thinks he’s the
best at sports but I’m better than him,” and making fun of J.M. for wearing Eagles clothing.
J.H. denied seeing anyone touch J.M.’s Chromebook and offered that “during class
everyone was turning people’s chromebooks on and off.” He noted that J.M.’s music was too
loud and he was told to lower it. A.D. said J. and D. would pick on J.M. for being bad at
volleyball, but he was not specific about when this occurred. Similarly, Ja.M. told Wentz that
D. and J.S. told J.M. he was not athletic, but again he did not specify when this occurred.
On January 12, 2016, S.F. told Wenz of an incident in which J.S. told J.M. that he
should not play Minecraft, as no one does that anymore. 	“[J.M.] took it like J.S. was making
fun of him.” She added, “[J.S.] and [J.M.] have always had problems with fighting.” 	This
student does not refer to the type of comments (“weak” “weakling” or such) that are the basis
of the finding of a violation of the Act. 	Her reference appears to be to comments made on
January 11, 2016, in Mrs. Hartsough’s class, while that teacher was absent. She does report
that J.M. “got red in the face” and that J.M. “always says to everyone that J.[S.] makes fun of
him.”
A number of these and other students confirmed that the two had a longstanding
problem. 	E.F. said, “I know there were problems that occurred in the past,” adding, “[J.S.]
used to make fun of [J.M.] but didn’t mean it, [J.M.] would take it the wrong way and slowly
got angrier.” D.R. said that the boys “go back and forth ongoing about things said or done in

11
gym.” 	He quoted words used, such as “very sick” or “shut up.” 	J.S. would say “You suck”
and “you aren’t athletic.” 	J.M. would say, “Shut up” or “you suck.” 	J.S. made comments
about J.M.’s football launcher and “why don’t you just have a catch with your dad.” 	In
response to the question about when and where “the incident” happened, he wrote “gym,
lunch-Hitler’s prototype,” but he did not specifically state who used these words and Mr.
Butler’s note indicates that D.R. was not “there” and that others told him about this. He never
heard any comment about “grandmom shoes.” 	He also noted “mentally handicapped”—
never between [J.S.] and [J.M.]” and that sometimes J.M. mocked J.S. if J.S. messes up in
gym— he will say “Yeah, I’m the one who is bad.” 	D.S. also noted that J.S. and J.M. each
“make fun of each other” and J.M. tells J.S. that J.S. is “small.”
Summary Decision
A party may move for summary decision as a means to resolve a contested case
without the necessity of a hearing involving witnesses and testimony. Such a motion is made
based upon the contention that the material facts necessary to determine the legal issues in
the case are not in genuine dispute, and that the application of the law to those undisputed
facts must necessarily result in a decision in favor of the moving party. Brill v. Guardian Life
Insurance Co., 142 N.J. 520 (1995). As the Brill Court stated, the “essence of the inquiry[,]”
is, “whether the evidence presents a sufficient disagreement to require submission to a [fact-
finder] or whether it is so one-sided that one party must prevail as a matter of law.” 	Brill, at
536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). To defeat the
motion, the opposing party must demonstrate, by affidavits, the existence of genuine disputes
as to the material facts. All reasonable inferences arising from the undisputed evidence must
be accorded to the opponent of the motion. 	If all parties agree on the material facts, and if
there are cross-motions for summary decision, then the applicable law determines if any
party is entitled to a favorable decision. N.J.A.C. 1:1-12.5;
Discussion
The Board argues that the investigation by Ms. Wenz determined that J.S. had called
J.M. “weak” and a “weakling,” as well as referring to J.M.’s athletic ability by saying “you
suck.” 	“These facts supported the District’s finding of an actual or perceived characteristic.”

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Added to this was the disruption caused by J.M. having to report the remarks to his father
who then had to report them to the school district, thereby causing disruption in the orderly
operation of the school or in J.M.’s rights and emotionally harming the “embarrassed”
student. 	As for the story told by J.S. in his second interview about J.M. talking about
“grandmom” shoes, the Board specifically noted that this claim was unsubstantiated and,
while also deciding that it rejected Mrs. S.’ argument that the conduct complained of resulted
from a “conflict,” found instead that the “problems between J.M. and J.S. arose from J.S’s
conduct.” 	The Board found that the preponderance of the evidence supported that the
comments were made by J.S., the motivation was based on the actual or perceived
characteristic of J.M. as being “weak,” and that they met the definition of HIB.4 	Based upon
the evidence, the Board made a decision that was clearly neither arbitrary, capricious or
unreasonable. The evidence was that the comments about weakness came in the context of
J.S. pushing down on the lid of J.M.’s Chromebook, “while J.M. resisted the physical
pressure.” 	This comment about his lack of strength embarrassed J.M. 	The size difference
between the larger J.M. and the smaller J.S. was irrelevant to the analysis of the motivating
factor for J.S.’s comments. 	And the comment was not made in a “conflict” situation, as the
claim about the “grandmom” shoes was not substantiated and even if it were made, the
comments about “weakness” could not be connected to the use of that phrase or reference
by J.M. 	The Board’s decision was entirely within the realm of reasonableness, even if others
might reasonably disagree.
In this case, I FIND that there is no doubt that the record establishes that J.S. and J.M.
have had problems getting along with each other since first grade. It is true that such a long
standing, unresolved conflict between two students may be accompanied by the sort of
“harmful or demeaning conduct motivated only by another reason, for example, a dispute
about 	relationships 	or 	personal 	belongings, 	or 	aggressive 	conduct 	without 	identifiable
motivation,” identified in K.L. 	As the court said, this sort of conduct does not fall within the
statutory definition of HIB. 	However, merely because two students have such an ongoing
conflict does not mean that there may not be instances in which that conflict includes conduct
that crosses the line into prohibited HIB. 	If particular comments or actions by one of the two
against the other are “reasonably perceived as being motivated either by any actual or
perceived characteristic, such as . . . a mental, physical or sensory disability, or by any other
4Again, it is noted that the Board’s summary mentions no finding about a lack of athletic ability.

13
distinguishing characteristic, . . . ,” the fact that such conduct occurs against a background of
conflict that may not have historically included conduct reasonably perceived as motivated by
such reasons does not insulate the conduct under review from being properly determined to
be in violation of the Act. 	Indeed, even if past history might include such prohibited conduct,
it is the specific matter under investigation following an HIB complaint that must be judged to
determine if it involved such offensive conduct. And, the existence of evidence of possible
past HIB actions by the victim of the conduct at issue does not excuse any current HIB
conduct directed at that child. 	Here, J.S. admitted that he told J.M. that J.M. was weak.
Although J.S. did not admit that he was pushing down on the lid of the Chromebook, J.M.
explained that J.S was doing that and that J.S. slammed the lid down, while telling J.M. that
he was “weak.” Student I. confirmed an incident involving the Chromebook. 	He also heard
the “weakling” comment. 	No one substantiated J.S.’s story about “grandmom” shoes, a story
he only told during his second interview, but not during his first discussion with Ms. Wenz.
Clearly, if the Board credited J.M.’s version of events, it could decide that during a struggle
over the Chromebook, J.S. told J.M. that he was “weak,” a “weakling,” a comment that might
quite reasonably embarrass the recipient of 	the comment. I CONCLUDE that such a
comment, especially when made during a physical confrontation, however limited it might
have been, could reasonably be seen as motivated by an actual or perceived physical
characteristic. 	There is no basis here for concluding that the incident either did not occur or
that the Board’s decision to credit J.M.’s version of the facts was unreasonable. Given this, I
CONCLUDE that it cannot be said that the Board’s determination that J.S. violated the
prohibition against HIB on January 5, 2016, was arbitrary, capricious or unreasonable. While
the petitioners try to deflect from this conclusion by invoking the existence of historical conflict
that arguably did not appear to involve such motivation(s), that fact alone does not establish
the legal infirmity of the Board’s conclusion as to this particular event. 	Thus the case differs
from that in either R.A. o/b/o B.A. v. Board of Education of the Township of Hamilton,
http://njlaw.rutgers.edu/collections/oal/html/initial/edu10485-15_1.html; 	adopted, 	Comm’r
(June 22, 2016), or L.B.T. o/b/o K.T. v. Board of Education of the Freehold Regional School
District, OAL Dkt. No. EDU 7894-12 (January 24, 2013), adopted, Comm’r (March 7, 2013),
in each of which the Board had determined that the complained of conduct was part of
ongoing conflicts and, most significantly, unlike here the comments complained of did not
address distinguishing characteristics. 	The respective administrative law judges and the

14
Commissioner each deferred to these board determinations of the lack of motivations that fell
within the Act’s definition of HIB conduct.
While perhaps the petitioners and others might believe that the legislation takes an
overbroad approach to the realities of some conflicts and interactions between immature
students, the fact remains that the Legislature, seeking to address a pervasive problem of
significant concern in the school environment, with additional important societal impacts,
created a definition of prohibited conduct and the facts here reasonably support a conclusion
that the conduct found to have occurred falls within the definition. 	While some finder of fact
might conclude otherwise, where there is more than one reasonable way to understand a set
of facts, it cannot be said that the choice of one reasonable interpretation over the other
reasonable interpretation amounts to an unreasonable choice.
ORDER
IT IS HEREBY ORDERED that petitioners’ appeal of the Board’s decision that J.S.
engaged in prohibited conduct in violation of the Anti-Bullying Bill of Rights is DENIED. 	The
Board imposed sanctions which resulted in J.S. having his student schedule adjusted, a
requirement that he meet with a school counselor, and a change in his homeroom teacher.
These all were reasonable approaches to the situation created by J.S.’s conduct, and they
are affirmed.
I hereby FILE this initial decision with the COMMISSIONER OF THE DEPARTMENT
OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized to
make a final decision in this matter. 	If the Commissioner of the Department of Education
does not adopt, modify or reject this decision within forty-five days and unless such time limit
is 	otherwise 	extended, 	this 	recommended 	decision 	shall 	become 	a 	final 	decision 	in
accordance with N.J.S.A. 52:14B-10.

15
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.
March 28, 2019
DATE 	JEFF S. MASIN, ALJ (Ret., on recall)
Date Received at Agency:
Date Mailed to Parties:
mph

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LIST OF EXHIBITS:
For petitioners:
P-1 	Mediation Agreement, March 23, 2010
P-2 	Discipline Referral Form, incident date 1-7-16
P-3 	Certification of M.S. and N.S., on behalf of J.S., dated January 24, 2019
P-4 	HIB document dated 1-18-16, “To the Parents/Guardians of J.S.”
P-5 	HIB Level (1) Investigation, signed January 8, 2016
P-6 	HIB Investigation Form, statement of J.S., dated 1-12-16
P-7 	HIB statement of J.M., dated1-7-16
P-8 	Student Incident Report, dated 1/7/16
P-9 	Statement of I.V, dated 1-7-16
P-10 	Statement of D.S., dated 1-11-16
P-11 	Statement of S.F, dated 1-12-16
P-12 	Statement of E.F., dated 1-14-16
P-13 	Statement of D.R., dated1-14-16
P-14 	Additional material regarding D.R.’s information
P-15 	Final Determination & Conclusion of the Level (2) Investigation to
Superintendent, signed 1-20-16
P-16 	HIB document and letter to parents of J.S. from Christopher Butler, dated 1-2-
16
P-17 	Memorandum from Mr. Butler to N.S., dated 1-22-16
P-18 	Email chain regarding hearing request by parents of J.S., dated 1-25-16
P-19 	Board minutes for executive session held on 1-28-16
P-20 	Board minutes for regular meeting held on 1-28-16
P-21 	Letter to parents of J.M., dated 1-29-16
P-22 	Email re: “requested HIB report”
P-23 	Board Minutes for Executive Session held on 2-25-16
P-24 	Two-page summary of “HIB hearing involving students J.S. and J.M.”, executive
session, 2-25-16
P-25 	Board minutes for regular session held on 2-25-16

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P-26 	Letter to parents of J.M., dated 2-26-16
For respondent Board of Education:
A- 	Letter dated 5-24-16 from Seth N. Broder, Esq. to Commissioner of Education,
c/o M. Kathleen Duncan, with attached Petition
B 	Letter dated 6-13-16 from Sanmathi Dev, Esq. to M. Kathleen Duncan, with
attached Notice of Motion to Dismiss Petition of Appeal
C 	Acknowledgement of Filing, dated 6-16-16
D 	Letter from parents of J.S. to Honorable Elia A. Pelios, ALJ
E 	Letter dated 9-9-16 from Sanmathi Dev, Esq. to Judge Pelios
F 	Letter dated 9-13-16 from Seth N. Broder, Esq. to Judge Pelios
G 	Order Granting Intervention and Denying Motion to Dismiss, dated 8-15-18
H 	Letter dated 9-12-18 from Sanmathi Dev, Esq. to Judge Jeff S. Masin
I 	Letter dated 10-23-18, with attached Confidentiality Order
J 	Email chain including J.M., father of J.M.’s report of alleged HIB incident dated
1-5-16 and reply
K 	List of teacher assignments and multiple documents detailing HIB investigation
L 	Memo to Mrs. S. regarding J.S.’s updated schedule
M 	Board minutes of regular meeting held 1-28-16
N 	Letter to parents of J.M., dated 1-29-16
O 	Email from Dr. Joseph Campisi to 	“All” re “Memo from HIB hearing (January
28, 2016” with attached memo
P 	Board minutes of regular meeting held on 2-25-16
Q 	Email chain starting on 2-26-16 from J.M., father of J.M.
R 	Email from J.M. and D.M. to Dr. Campisi, 2-26-16
For Intervenors
I-1 	Intervenors' Certification, dated 2-4-19, with attached
A: 	Email from D., mother of J.M. to Ms. S., with handwritten comments
B: 	Email from J.M., father, to Dr. Campisi, 1-30-16

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I-2 	Intervenors’ Statement of Undisputed Facts with attached exhibits
A: 	Petition of J.S., a minor child by his parents, M.S. and N.S. v. Hainesport
Twp. Bd of Educ., dated 5-24-16
B: 	Email of J.M. to Christopher Butler, 1-5-16
C: 	Letter to parents of J.M., dated 1-8-16
D: 	Memo 	to 	Anti-Bullying 	Specialist 	to 	Initiate 	HIB 	Complaint 	and
Investigation Process, 1-7-16 and additional HIB investigation materials
E: 	Additional HIB investigation documents
F: 	HIB document dated 1-20-16 addressed to parents of J.S.
G: 	Letter dated 1-29-16 to parents of J.S.
H: 	Email re: “HIB Notification Letter after Board Meeting, 1-17-16
I: 	Summary of “HIB Hearing Involving Students J.S. and J.M., Executive
Session,” 2-25-16
J: 	Letter to parents of J.M., 2-26-16
K: 	Email 	sent 	12/22/15 	from 	J.M. 	father, 	to 	Christopher 	Butler, 	re:
“Lunchbox”