J.R., on behalf of minor child, P.R. v. Board of Education of the Township of Westampton, Burlington County, 1/21/25 (#24-25)

24-25
OAL Dkt. No. 08997-23
Agency Dkt. No. 231-8/23
New Jersey Commissioner of Education
Final Decision
J.R., on behalf of minor child, P.R.,
Petitioner,
v.
Board of Education of the Township of
Westampton, Burlington County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL)
have been reviewed and considered. The parties did not file exceptions.
Petitioner’s child, P.R., was physically assaulted by a classmate, M.W., during the 2019-
2020 school year. M.W. moved to an out-of-district school, but returned to Westampton for the
2022-2023 school year, at which time he made several comments to P.R. that she perceived as
threatening. 	The Westampton Board of Education (Board) found that M.W.’s actions did not
constitute harassment, intimidation, and bullying (HIB), and petitioner appealed.
The Administrative Law Judge (ALJ) concluded that the case was moot because petitioner
could not obtain an out-of-district placement for her child under the Anti-Bullying Bill of Rights
Act (Act), and all other relief that is available under the Act – such as counseling, teacher aides,
monitors, supervision, and therapy – were already being provided to her. Accordingly, the ALJ
dismissed the petition.

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Upon review, the Commissioner disagrees with the ALJ that the matter is moot. 	The
Commissioner has previously held that the Act entitles a petitioner to a determination of whether
a district’s finding that her child was not the victim of acts of HIB was arbitrary, capricious, or
unreasonable. 	R.S., o/b/o minor child, G.M. v. State-Operated School District of the City of
Paterson, Passaic Co., Commissioner Decision No. 17-17 (Jan. 13, 2017). The Commissioner so
held even though the alleged victim had already graduated from the district, finding that it was
not relevant to the issue of whether the alleged conduct constituted HIB. Ibid.
However, unlike in R.S., where the Commissioner remanded the matter to the OAL for
further proceedings in order to resolve the underlying claim on the merits, in this matter, the
parties filed cross-motions for summary decision, agreeing that there are no material facts in
dispute. As such, there is no need for further fact-finding at the OAL.
When a local board of education acts within its discretionary authority, its decision is
entitled to a presumption of correctness and will not be disturbed unless there is an affirmative
showing that the decision was “patently arbitrary, without rational basis or induced by improper
motives.” 	Kopera v. Bd. of Educ. of W. Orange, 60 N.J. Super. 288, 294 (App. Div. 1960).
Furthermore, “where there is room for two opinions, action is not arbitrary or capricious when
exercised honestly and upon due consideration,” and the Commissioner will not substitute his
judgment for that of the board. Bayshore Sewerage Co. v. Dep’t of Env’t Prot., 122 N.J. Super.
184, 199 (Ch. Div. 1973), aff’d, 131 N.J. Super. 37 (App. Div. 1974). Regarding HIB determinations,
this standard has been explained as requiring a petitioner to “demonstrate that the Board acted
in bad faith, or in utter disregard of the circumstances before it.” G.H. and E.H. o/b/o K.H. v. Bd.

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of Educ. of Borough of Franklin Lakes, Bergen Cnty., OAL Dkt. No. EDU 13204-13 (Initial Decision
Feb. 24, 2014), adopted, Commissioner Decision No. 157-14 (Apr. 10, 2014).
The Act defines HIB as:
[A]ny gesture, any written, verbal or physical act, or any
electronic communication, whether it be a single incident or a
series of incidents, that is reasonably perceived as being motivated
either by any actual or perceived characteristic, such as race, color,
religion, ancestry, national origin, gender, sexual orientation,
gender identity and expression, or a mental, physical or sensory
disability, or by any other distinguishing characteristic, that takes
place on school property, at any school-sponsored function, on a
school bus, or off school grounds as provided for in section 16 of
P.L. 2010, c.122 (C.18A:37-15.3), that substantially disrupts or
interferes with the orderly operation of the school or the rights of
other students and that:
a. 	a 	reasonable 	person 	should 	know, 	under 	the
circumstances, will have the effect of physically or emotionally
harming a student or damaging the student's property, or placing
a student in reasonable fear of physical or emotional harm to his
person or damage to his property;
b. 	has the effect of insulting or demeaning any student
or group of students; or
c. 	creates a hostile educational environment for the
student by interfering with a student's education or by severely or
pervasively causing physical or emotional harm to the student.
In summary, a finding of HIB requires that three elements under the Act be satisfied. First,
the substantiated conduct must be reasonably perceived as being motivated by any actual or
perceived characteristic expressly identified in the statute, or by any other distinguishing
characteristic. Ibid. Second, the conduct must substantially disrupt or interfere with the rights
of other students or the orderly operation of the school. Ibid. Third, one of the three conditions
set forth in subsections (a), (b), and (c) must be satisfied. Ibid.; Wehbeh v. Bd. of Educ. of the
Twp. of Verona, Essex Cnty., Commissioner Decision No. 510-20 (Feb. 4, 2020).

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Here, there is no evidence M.W.’s conduct could be reasonably perceived as being
motivated by an actual or perceived distinguishing characteristic. Petitioner argues that M.W.’s
belief that P.R. was the cause of his disciplinary issues constitutes a distinguishing characteristic,
but the Commissioner rejects this argument. Conduct – even harmful or demeaning conduct –
that is motivated only by a personal dispute does not come within the statutory definition of
bullying. K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 351 (App. Div. 2011). In the
absence of a distinguishing characteristic, the Commissioner concludes that the Board’s
determination that P.R. was not the victim of HIB was not arbitrary, capricious, or unreasonable.
Accordingly, the Initial Decision is modified as detailed herein, and the petition of appeal
is hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	January 21, 2025
Date of Mailing: 	January 22, 2025
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-
9.1. Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days
from the date of mailing of this decision.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 08997-23
AGENCY DKT. NO. 231-8/23
J.R. ON BEHALF OF
MINOR CHILD P.R.,
Petitioner,
v.
BOARD OF EDUCATION OF THE
TOWNSHIP OF WESTAMPTON,
Respondent.
__________________________________________
Mario J. Persiano, Esq., for petitioner (Law Office of Mario J. Persiano, attorney)
Emily E. Strawbridge, Esq., for respondent (Parker McCay, P.A., attorneys)
Record Closed: September 20, 2024 	Decided: October 31, 2024
BEFORE TRICIA M. CALIGUIRE, ALJ:
STATEMENT OF THE CASE
Petitioner, J.R., on behalf of minor child P.R., challenges two decisions of
respondent Board of Education of the Township of Westampton, Burlington County

OAL DKT. NO. EDU 08997-23
2
(Board), that harassment, intimidation, and bullying (HIB) of P.R. did not occur, as HIB is
defined in the Anti-Bullying Bill of Rights Act, N.J.S.A. 18A:37-14 (ABBRA).
PROCEDURAL HISTORY
On August 26, 2023, petitioner filed a pro se petition of appeal with the Office of
Controversies and Disputes of the New Jersey Department of Education (Department).
On September 11, 2023, petitioner filed a motion for emergent relief with the Department.
The Acting Commissioner did not act on the motion, and, pursuant to N.J.A.C. 6A:3-
1.6(c)(3), on September 12, 2023, the emergent matter and the petition of appeal were
transmitted to the Office of Administrative Law (OAL). 	The emergent hearing was held
on September 18, 2023, and an order denying emergent relief was issued on September
19, 2023, and adopted by the Acting Commissioner on October 6, 2023.
On September 20, 2023, respondent filed a motion to dismiss the petition on three
separate grounds. By order dated November 16, 2023, respondent’s motion to dismiss
was granted in part and denied in part, pending an amendment to the due process petition
by which petitioner was directed to specify all relief requested should she prevail on her
HIB claim. 	Following an extension granted after petitioner obtained counsel, on
December 11, 2023, petitioner filed a letter brief with alternate support for her request for
an out-of-district placement for P.R.
On December 19, 2023, respondent renewed its motion to dismiss. 	Following
responsive briefing, the motion to dismiss was denied by order dated March 1, 2024, and
a hearing was scheduled on the issues of the validity of the Board’s HIB determinations
and, if HIB violations are found, whether there are programs and services that must be
made available to P.R. as a victim of bullying.
On July 19, 2024, respondent filed a motion for summary decision; petitioner
responded by cross-motion, filed July 29, 2024. 	Respondent filed a supplemental brief
on September 6, 2024. 	Despite repeated inquiries from my chambers, petitioner

OAL DKT. NO. EDU 08997-23
3
neglected to file a supplemental brief and, as petitioner was advised in advance, the
record closed on September 20, 2024, and the motions are now ripe for review.
FACTUAL DISCUSSION AND FINDINGS
By their cross-motions for summary decision, the parties agree that there are no
material facts in dispute. 	Generally, the facts recited in my earlier orders remain
unchanged. 	Accordingly, as described in those orders and supplemented by the
certifications of James DiDonato, superintendent of the School District of Westampton
(District), I FIND as FACTS:
P.R. is a twelve-year-old girl in the seventh grade at Westampton Middle School
(WMS), the only middle school in the District.
During the 2019-–2020 school year, while in second grade in the District, P.R. was
physically assaulted on the playground during school hours by a same-age male
classmate. 	That classmate, referred to as M.W., is eligible for special education and
related services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.
§§ 1400 to 1482. Certification of James DiDonato (July 19, 2024) (DiDonato Cert.), ¶¶ 1,
3. 	M.W. is classified with emotional regulation impairment, which is characterized by
inappropriate types of behaviors or feelings under normal circumstances. Id., ¶ 3, citing
N.J.A.C. 6A:14-3.5(c)(5).
Following the playground incident, the District Child Study Team decided that an
out-of-district placement was appropriate for M.W. 	Id., ¶ 5. 	Three years later, at the
beginning of the 2022–2023 school year, M.W. returned to school in the District, at
Westampton Intermediate School (WIS), without notice to J.R. P.R. was also enrolled at
WIS in the 2022–2023 school year.
J.R. documents conversations she initiated with WIS staff and administration, then-
superintendent Anthony 	Petruzzelli, 	and 	superintendent 	James 	DiDonato 	after 	he

OAL DKT. NO. EDU 08997-23
4
assumed office in October 2022, to express her concerns regarding her daughter’s safety
and anxiety and/or fear of M.W., but there is no evidence of any direct interactions
between P.R. and M.W. prior to December 19, 2022.
Respondent states that M.W. had no recollection of the 2019 playground incident.
Id., ¶ 7.1 While P.R.’s documented action in the fall of 2022 confirms that she had a strong
recollection of the incident and was frightened as a result, M.W.’s first documented
statement, on December 19, 2022, is evidence that his recollection was, at the least,
refreshed by information provided to him by third persons: “Oh so you’re [P.], you’re the
one saying I hurt you, now I know who you are, now I see you.”
Based on information provided by P.R., J.R. documented additional statements
allegedly made to P.R. by M.W. that P.R. perceived as threatening on April 17, April 18,
April 24, and April 25, 2023. J.R. brought an HIB claim against M.W., which was denied
by notice dated May 5, 2023, on the grounds that M.W.’s actions and/or statements in
these incidents were not motivated by a distinguishing characteristic of P.R.
Most of the above incidents took place in the WIS lunchroom. WIS administrators
worked with P.R. to develop an “exit plan,” whereby P.R. would be seated at lunch close
to the door. WIS staff were notified of the exit plan. On June 2, 2023, M.W. approached
P.R. in the lunchroom; when she began to cry, a lunch aide implemented the exit plan and
took P.R. to her homeroom classroom. 	M.W. followed, screaming, “she’s gonna get it.”
P.R.’s teacher locked the door. P.R. was taken from this room to the main office until M.W.
was removed from the school. 	J.R. filed a police report and a second HIB claim. 	The
second HIB claim was denied on the grounds that M.W.’s actions and/or statements in
the incident were not motivated by a distinguishing characteristic of P.R.2
1 DiDonato offers no citation to support this statement, though hand-written transcripts of interviews with
M.W., or of statements given by M.W., are included as exhibits.
2 DiDonato stated that M.W. was disciplined for this incident consistent with the Student Code of Conduct.
DiDonato Cert., ¶ 19.

OAL DKT. NO. EDU 08997-23
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Superintendent DiDonato stated that the June 2, 2023, incident, “while upsetting
for everyone involved and undoubtedly scary for P.R., was the culmination of [the male
classmate] being the topic of gossip of 5th graders all year.” 	DiDonato Certification in
Support of Motion to Dismiss (Dec. 19, 2023), ¶ 18. 	DiDonato now explains that as a
result of the HIB investigation he learned that “M.W. was upset because he had perceived
that P.R. had seen him in his classroom and walked away [and] claimed that P.R.’s friends
were telling him that P.R. said she was going to drown him at the pool party and beat him
up.” DiDonato Cert., ¶ 16.
On August 14, 2023, the Board upheld the District’s decision that both HIB claims
were unfounded.
P.R. began the 2023–2024 school year at WMS wearing a personal safety alarm.
On the first day, M.W. made comments to her in the hall that she perceived as threatening.
Between September 6 and 14, 2023, M.W. made comments to P.R. that she perceived
as threatening on four separate occasions. 	P.R. did not attend classes between
September 14, 2023, and October 23, 2023. By the later date, M.W. was again enrolled
in an out-of-district placement.3
DiDonato 	stated 	that 	in 	school 	in 	September 	2023, 	P.R. 	was 	overheard
“whispering” to another classmate insults regarding M.W. and that M.W. was aware of
such behavior by P.R. 	DiDonato Cert., ¶ 19. 	Further, he stated that P.R.’s allegations
regarding two of the four incidents in September 2023 were not corroborated by staff. Id.,
¶ 21.
On September 15, 2023, P.R.’s pediatrician, Dr. Melissa D. Labrou, diagnosed her
with anxiety due to traumatic events at school and prescribed home instruction pending
a Section 5044 classification meeting and placement at an out-of-district public school.
3 There is no evidence that M.W. was removed from WMS because of the events described above.
4 Dr. Labrou refers to Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

OAL DKT. NO. EDU 08997-23
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Home instruction was provided to P.R. by the District while she was not attending classes.
The 504 meeting took place on October 23, 2023.
On December 4, 2023, the District proposed, and on December 5, 2023, J.R.
accepted, “a 504 Accommodation Plan to support P.R.’s diagnoses of anxiety, clinical
depression (borderline) and [post-traumatic stress disorder].” 	DiDonato Certification in
Support of Motion for Summary Decision (September 6, 2024), ¶ 30 and Ex. L.
LEGAL ANALYSIS
J.R. challenges the denial of the HIB claims she brought on behalf of P.R. on the
grounds that M.W.’s actions meet the criteria of an HIB act and demands that the District
provide programs and services to P.R. as a victim of HIB.
Respondent seeks summary decision in its favor on the grounds that M.W.’s
actions do not meet the criteria of an HIB act, specifically because M.W. was not
motivated by a distinguishing characteristic of P.R., and, alternately, seeks dismissal of
the petition as moot because, even if petitioner prevails on the merits of her appeal, there
is no relief available to her in this forum.
Review of Mootness Claim
An action is moot when the decision sought “can have no practical effect on the
existing controversy.” Redd v. Bowman, 223 N.J. 87, 104 (2015). For reasons of judicial
economy and restraint, it is appropriate to refrain from decision-making when an issue
presented is hypothetical, judgment cannot grant effective relief, or the parties do not
have a concrete adversity of interest. Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch.
Div. 1976); Fox v. Twp. of E. Brunswick Bd. of Educ., EDU 10067-98, Initial Decision
(March 19, 1999), aff’d, Comm’r (May 3, 1999), https://njlaw.rutgers.edu/collections/oal/;
J.L. and K.D. ex rel. J.L. v. Harrison Twp. Bd. of Educ., OAL Dkt. No. EDS 13858-13,
Final Decision (January 28, 2014).

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In P.S. ex rel. I.S. v. Edgewater Park Township Board of Education, EDS 10418-
04, Final Decision (October 31, 2005), http://njlaw.rutgers.edu/collections/oal/, a parent
filed for due process due to a disagreement over the district’s proposed placement of her
child, and requested a different approved private school. The district had agreed to the
parent’s placement request and moved to dismiss the petition as moot. 	The parent
wanted 	to 	continue 	the 	hearing 	to 	resolve 	other 	related 	disagreements, 	but 	the
administrative law judge (ALJ) concluded that the relief sought by the parent had already
been granted by the district through its agreement to place the child at the requested
school. The ALJ dismissed the petition as moot and reasoned that the parents had the
right to file a new due process petition regarding other issues with the district.
In a case similar to this one, student S.D. was suspended for alleged use of drugs
in school; approximately one year later, after a petition had been filed challenging the
board’s decision to uphold the discipline, the board expunged the discipline. 	D.W. on
behalf of S.D. v. Bridgewater-Raritan Regional School District, EDU 11438-19, Initial
Decision 	(July 	29, 	2020), 	https://njlaw.rutgers.edu/collections/oal/, 	aff’d, 	Comm’r
(September 11, 2020), https://www.nj.gov/education/legal/. The ALJ concluded that since
no suspension record remained in the student’s file, there was no relief that the judge
could provide, and he dismissed the case as moot. 	On review, the Commissioner
concurred “that petitioner’s claim is moot because the suspension imposed by the Board
on S.D. has been expunged.”
By contrast, P.H. and K.G.H. on behalf of minor child L.H. v. Board of Education of
Northfield, 2021 N.J. AGEN LEXIS 778 (September 22, 2021), aff’d, Acting Comm’r
(October 21, 2021), involved the challenge to an HIB investigation conducted after the
parents had disenrolled their son—the alleged victim—from the district. 	The parents
claimed that the investigation was delayed, and was rife with procedural and legal flaws,
making it “deficient as a matter of law.” Id. at *4. The board moved for summary decision
on the grounds that the matter was moot, as L.H. was no longer in the district and “no
meaningful relief” had been requested. 	Id. at *5. 	The parents argued, and the ALJ

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agreed, that even though the student was no longer attending school in the district, the
board was “still required to carry out an HIB investigation,” and should an HIB have been
found, appropriate measures should have been carried out. Id. at *8. Given that ABBRA
is intended to “eliminate HIB conduct in schools,” and the petitioners claimed procedural
irregularities, “withdrawal [of L.H.] is not a defense to a district’s failure to properly carry
out its role in advancing the purposes of [the Act].” Id. at *12.
A review of the facts here leads to the conclusion that no issue remains as to which
judgment can grant effective relief. Petitioner does not cite procedural irregularities; her
dispute is with the decision of the Board after it completed the requisite process. Even if
I were to find that the Board’s HIB decision was faulty, P.R. seeks no remedy beyond that
of which her daughter is already the beneficiary. 	As stated in an earlier order in this
matter, petitioner cannot obtain the relief she initially requested as ABBRA does not
provide for an out-of-district transfer for the victim of bullying. ABBRA does provide for
the types of services that P.R. is already receiving under her 504 Plan: 	counseling;
teacher aides assigned to her to ensure her safety and feelings of safety; hallway and
playground monitors; supervision during and after school; and therapy. A judgement in
petitioner’s favor will not result in changes in the services being provided to her. For this
reason, I CONCLUDE that a due process hearing on a challenge to the HIB decisions of
the Board would be a hypothetical exercise.
Based on the foregoing, I CONCLUDE that the petition should be dismissed with
prejudice as moot because judgment for the petitioner cannot grant effective relief.
ORDER
It is hereby ORDERED that the motion of respondent, the Board of Education of
the Township of Westampton Public Schools, for summary decision dismissing the
petition of J.R. on behalf of P.R. on the grounds that the petition is moot is GRANTED
and the petition is DISMISSED with prejudice.

OAL DKT. NO. EDU 08997-23
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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.
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.
October 31, 2024
DATE 	TRICIA M. CALIGUIRE, ALJ
Date Received at Agency:
Date Mailed to Parties:
TMC/kl