J.R., on behalf of minor child, T.R. v. Board of Education of the Township of Long Hill, Morris County and Michael Viturello, Principal, 12/94/2024, (#444-24)

444-24
OAL Dkt. No. EDU 03570-22
Agency Dkt. No. 78-4/22
New Jersey Commissioner of Education
Final Decision
J.R., on behalf of minor child, T.R.,
Petitioner,
v.
Board of Education of the Township of Long Hill,
Morris County, and Michael Viturello, Principal,
Respondents.
The record of this matter and the Initial Decision of the Office of Administrative Law have been
reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge that neither
respondents’ determination that T.R. committed an act of harassment, intimidation, and bullying, nor the
imposition of a six-day suspension, was arbitrary, capricious, or unreasonable, or in violation of T.R.’s First
Amendment rights.
Accordingly, the Initial Decision is adopted as the final decision in this matter. The petition of
appeal is hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	December 9, 2024
Date of Mailing: 	December 11, 2024
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1. Under
N.J.Ct.R.2 :4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date of mailing
of this decision.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 03570-22
AGENCY DKT. NO. 78-4/22
J.R. ON BEHALF OF MINOR CHILD T.R.,
Petitioner,
v.
TOWNSHIP OF LONG HILL BOARD OF
EDUCATION, MORRIS COUNTY AND
MICHAEL VITURELLO, PRINCIPAL,
Respondents.
Jerald F. Oleske, Esq., for petitioner (Oleske & Oleske, attorneys)
Douglas M. Silvestro, Esq., for respondent (The Busch Law Group, attorneys)
Record Closed: July 18, 2024 Decided: October 28, 2024
BEFORE MARGARET M. MONACO, ALJ:
STATEMENT OF THE CASE
Petitioner J.R., on behalf of her son, T.R., challenges the Harassment, Intimidation
and Bullying (HIB) determination, and the six-day suspension imposed, by the Township
of Long Hill Board of Education (the Board).

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2
PROCEDURAL HISTORY
On April 12, 2022, petitioner filed a Petition of Appeal with the Commissioner of
Education (the Commissioner) contesting the Board’s HIB determination and six-day
suspension. On May 2, 2022, respondents filed an Answer to Petition of Appeal, and the
Department of Education transmitted the matter to the Office of Administrative Law, where
it was filed for determination as a contested case. A prehearing conference was held on
June 23, 2022, during which the hearing was scheduled for December 1, 2, and 5, 2022.
The hearing was adjourned to afford respondents the opportunity to file a motion for
summary decision. Subsequently, the parties filed cross-motions for summary decision,
which I denied by Order dated May 2, 2023. The hearing was held on October 18, 2023,
and January 16, 2024, after which the record remained open for the receipt of transcripts
of the hearing and post-hearing submissions. The parties filed briefs in support of their
respective positions, and the record closed upon receipt of the last submission.
FACTUAL DISCUSSION
At the hearing, petitioner offered testimony by T.R. and his mother, J.R. Michael
Viturello and Melissa Backer testified on behalf of the Board. In addition, the parties
submitted various joint exhibits and a Joint Statement of Undisputed Facts (Stip.).
Based upon a review of the testimony and the documentary evidence presented
and having had the opportunity to observe the demeanor and assess the credibility of the
witnesses who testified, I FIND the following pertinent FACTS and accept as FACT the
testimony set forth below.
During the relevant period, T.R. was an 8th grade student at the District’s Central
Middle School (CMS). (Stip. at ¶ 1.)
Michael Viturello (Viturello) is the principal of CMS, a position that he has held for
seven years.

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Melissa Backer (Backer) has been an assistant principal with the District since
2016. She is also the anti-bullying specialist for all three District buildings, including CMS.
On November 10, 2021, a CMS student (Jane)1 shared a Snapchat with Viturello.
(Stip. at ¶ 3.) Jane had initially brought the matter to the attention of the school counselor.
The Snapchat thread contained a number of students from CMS, including T.R., making
demeaning comments regarding another CMS student (Susan). (Ibid.; see J-7; J-13.)
The comments, including those made by T.R., were vulgar in nature and attacked Susan’s
appearance, weight, and sexual orientation. (Stip. at ¶ 4; see J-7; J-13.) Viturello
described that Jane was “very concerned about . . . all the information that was being
shared by students [and] comments that were being made about” Susan.
The comments made by T.R., with some minor exceptions, were generally directed
at Susan. (Stip. at ¶ 8.) T.R. knew at the time of the conversation that the other
participants were also referring to Susan. (Id. at ¶ 9.) Susan was not a direct participant
of the November 9, 2021 Snapchat thread. (Id. at ¶ 10.) Some of the other participants
who engaged in the conversation were students who, at that time, attended CMS. (Id. at
¶ 11.) The Snapchat thread also included students from other middle schools located in
nearby towns outside of the District. (Ibid.)
In the afternoon on November 10, 2021, Viturello contacted Susan’s parents. (See
J-14 at R148.) The purpose of that contact was to “make them aware . . . that something
pretty significant happened outside of school[.]” Viturello spoke to Susan’s mother, who
was aware that an incident had occurred with comments made about her daughter and
was “very concerned[.]” Susan’s mother shared that Susan was “very concerned about
just the group in general making comments about her, she was very self-conscious, [and]
she was anxious about it,” including the involvement of many non-District students.
Jane, the witness who initially reported the incident to CMS staff, reported that she
was fearful of retaliation by her classmates for informing adults and school staff of the
Snapchat thread. (Stip. at ¶ 18.) Jane’s parents signed Jane out of school the day after
1 Fictitious names are used to identify the student reporter (Jane) and the alleged victim (Susan).

OAL DKT. NO. EDU 03570-22
4
she reported the Snapchat thread to school staff, and Jane remained homeschooled for
the remainder of the 2021–2022 school year. (Id. at ¶ 19.) Viturello spoke with Jane’s
mother, who was “very concerned about the entire situation” and conveyed her intention
to withdraw Jane from school due to the Snapchat situation.
On November 11, 2021, Viturello met with all CMS students, including T.R., who
had made negative comments about Susan. (See Stip. at ¶ 5; J-14 at R148.) During a
meeting with Viturello, T.R. admitted to making all of the statements attributed to him,
although he indicated that he did not remember some of them. (Stip. at ¶ 6.)
The CMS “Student Manual and Code of Conduct” sets forth in detail the type of
behavior expected of CMS students. (Stip. at ¶ 15; see J-9, page 8.) In September 2021,
T.R. was present during a Grade Level Meeting at which Viturello reviewed the CMS
“Student Manual and Code of Conduct.” (Id. at ¶ 12; see J-9; J-10.) At that Grade Level
Meeting, Viturello also explained that the Code of Conduct was available on the school’s
website for review. (Id. at ¶ 13.) On September 10, 2021, T.R. was sent an e-mail from
Viturello that attached a copy of the slide presentation used at the Grade Level Meeting,
along with the CMS “Student Manual and Code of Conduct.” (See Id. at ¶ 14; J-10.)
Viturello made an initial review of the within matter and determined that T.R. had,
at the very least, violated various requirements of Section 2 (“Behavior”) of the CMS Code
of Conduct in that he failed, without limitation, to: (a) “[m]ake appropriate decisions” and
(b) “[c]ommunicate with others in a positive manner without teasing, name calling, or
profanity.” (Id. at ¶ 16; see J- 9, Sec. 2, page 8; J-4.) Viturello also determined that T.R.
had, at the very least, violated various requirements of Section 3 (“Respect”) of the Code
of Conduct, in that he failed, without limitation, to “[b]e respectful of different cultures,
religions, ethnic and racial groups, gender identities and sexual orientations, and physical
and mental differences.” (Id. at ¶ 17; see J- 9, Sec. 3, page 9; J-4.)
As a result of the conduct, on or about November 11, 2021, Viturello imposed a
six-day out-of-school suspension (OSS) to T.R. and other students involved in the
Snapchat thread. Viturello also initiated a HIB investigation. (See Stip. at ¶ 7 and ¶ 21;
J-2.) On November 11, 2021, Viturello contacted T.R.’s parents regarding the situation.

OAL DKT. NO. EDU 03570-22
5
(See J-4; J-14 at R148.) By letters dated November 12, 2021, Viturello notified T.R.’s
parents of the foregoing events, his initial determination, the imposition of the OSS, and
the pending HIB investigation. (See Stip. at ¶ 22; J-3; J-4.)
Viturello described that seven District students were involved in the inappropriate
Snapchat comments and their comments ranged in frequency and severity. The students
who made more frequent or more significant comments were disciplined with greater
consequences than those who had less frequent or less significant comments on the
Snapchat chain. T.R. received the highest level of discipline (i.e., a six-day OSS) based
on his comments. He was not the only student to receive that level of discipline.
On November 12, 2021, T.R.’s mother notified school staff that she was afraid of
leaving T.R. alone that morning and that T.R. presented with suicidal ideation in prior
years. (Stip. at ¶ 23.) In response, Backer, the school counsellor, and the school social
worker made a home visit. School staff conducted a risk assessment and wellness visit
of T.R. at his home, and he was cleared to return to school after the evaluation. (Ibid.;
see J-14).
The HIB investigation was conducted by Viturello and Backer. (Stip. at ¶ 24.)
Backer interviewed Susan the day after the incident was reported. Susan was aware of
the substance of the Snapchat, and Susan advised that she became aware of the
Snapchat about her from a friend. Backer testified that Susan was “clearly very upset,
she was crying, she expressed concern about going to the high school because these
students had been previously making fun of her from our District and another district and
she was embarrassed.” Susan also relayed that “she avoids going to certain areas
because she doesn’t want to be around” these students. After interviewing Susan, Backer
and Viturello interviewed witnesses and the alleged offenders.
Susan was provided with counseling through the District for the remainder of the
year. (Stip. at ¶ 20.)

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6
During a meeting with Viturello and Backer on November 15, 2021, T.R.’s parents
personally reviewed all of the Snapchat comments made by T.R. for which he received
discipline and were the subject of the HIB investigation. (See Stip. at ¶ 25; J-14.)
The HIB investigation was completed on or around November 19, 2021. (Stip. at
¶ 26; see J-1.)2 Backer concluded that the acts committed by T.R. constituted HIB within
the meaning of the Board’s Policy and State law. (Id. at ¶ 28; see J-1.) Backer completed
an Investigation Report Form in which she checked the boxes finding that T.R.’s behavior
met the listed HIB criteria. (J-1 at R013.)
Backer determined that T.R.’s behavior “[i]s 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.” (J-1
at R013.) Backer explained that she checked that box “because the content included
several perceived characteristics about [Susan’s] appearance, and mainly her weight and
. . . also . . . her sexuality.”
Backer checked the box that the conduct “[t]akes place on school property, at any
school-sponsored function, on a school bus, or off school grounds” (J-1 at R013), and
stated that the conduct took place off school grounds.
Backer checked the box finding that T.R.’s behavior “[s]ubstantially disrupts or
interferes with the orderly operation of the school or the rights of other students[.]” (J-1
at R013.) Backer explained that “based on the comments [T.R.] made, [Susan] was
visually very upset about the content that was said about her, . . . [Jane was] signed out
of school after sharing the information about the Snapchat and then T.R. himself was in
distress” resulting in school staff conducting a risk assessment. In addition, there was an
interference with the operation of the school as a whole, and the incident “had a
substantial interference with the school day.” Backer explained that “there were about 25
students that were involved on the Snapchat, so clearly it was spoken about within the
2 T.R. is designated as student “A-2” and “AP2” in the HIB Investigation Report and as “TR” in the
summaries of student chat comments in the report. (Stip. at ¶ 27.)

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middle school halls”; “[t]here were a lot of students that were interviewed”; and “there
were a lot of staff members that were involved in the interview process and the HIB
investigation[.]”
Backer checked the box finding that “a reasonable person should know, under the
circumstances, [that T.R.’s behavior] 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[.]” (J-1 at
R013.) Backer explained, “[m]aking fun of someone’s appearance, [and] their sexuality,
. . . a normal person would understand that . . . would be hurtful to that person and could
cause emotional harm.” Backer believed that a reasonable 8th grader would know under
the circumstances that the conduct that T.R. admitted to would have the effect of
physically or emotionally harming a student. She testified that “a reasonable 8th grade
student would be aware that there are negative implications associated with that kind of
language,” and a “reasonable person would think that using that language with a group
of 25 plus students would get back to that student.” She noted that the school educates
students about the internet, including matters such as the digital footprint, how it follows
them, and that anything put on the internet is traceable.
Backer checked the box finding that T.R.’s behavior “has the effect of insulting or
demeaning any student or group of students” (J-1 at R013) “[b]ecause the content had to
do with [Susan’s] physical appearance, weight and also sexuality.” During Backer’s
interview with Susan, Susan relayed that she was insulted or demeaned.
Backer checked the box finding that T.R.’s behavior “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.” (J-1 at R013.) Backer
explained that Susan conveyed “that she didn’t want to go to the high school where these
students were going to be attending.”
In the form, Backer also checked the box that the “[a]ggressor’s actions determined
to be . . . [i]ntentional, but not designed to harass, intimidate, or bully,” i.e., “[t]he student
knowingly engaged in harassing, intimidating, or bullying behavior but was not aware of

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the potential negative impact on the target.” (J-1 at R013.) Backer testified that “an 8th
Grade student is aware that the type of content he engaged in would hurt someone, so
the intent, it was hurtful,” but she did “not believe that [T.R.] woke up that day and decided
he wanted to harass, intimidate or bully the victim.” Backer believed that T.R.’s conduct
“was intentional as in he knowingly engaged in behavior that he knew was wrong and
hurtful, but [she did not] believe that he wanted to harass, bully or intimidate or be involved
in an investigation, [and she did not] think he was thinking that through when he was
involved.” Backer did not believe that T.R. “had an intention of hurting” Susan, and she
did not believe that T.R. “was thinking clearly about the ramifications.” However, Backer
articulated that “a reasonable person would know—should know that . . . type of language
would be harmful to somebody.”
As Viturello had already imposed a six-day OSS on T.R. for the Code of Conduct
violations, Backer recommended additional remedial measures, including meeting with a
school counselor, a reflective writing assignment, and an in-home risk assessment
supplemented by an additional parent meeting. (Id. at ¶ 29; see J-1 at R014.)
On or around November 19, 2021, Viturello approved the HIB Investigation Report
without modification. (Stip. at ¶ 30.) He reviewed the report and agreed Backer’s
determination that the incident was “Confirmed Bullying.” (See J-1 at R013.) Viturello
agreed with Backer’s determination that the criteria checked on the form had been met.
Viturello described that T.R.’s conduct was reasonably perceived as being motivated by
the victim’s weight and sexuality, and the conduct took place off school grounds.
Viturello agreed with Backer’s determination that T.R.’s behavior substantially
disrupted and interfered with the orderly operations of the school or the rights of other
students. He explained that Susan “was very anxious about the situation, was very
impacted, [and] needed multiple counseling sessions[.]” Susan also shared that she was
fearful of going to the high school because the incident involved not only Long Hill
students but students in surrounding towns. In addition, Jane was “very concerned about
retribution” from the students involved in the conduct, and she was signed out of the
school in the first few days after the incident. Viturello also spoke with T.R.’s mother, who
was concerned about T.R.’s mental health based on his involvement in the incident.

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Viturello testified that “there was a great impact to the school in general and many
individuals involved.” “There was impact on all the students who were suspended and
their involvement and also the witnesses,” noting that “there were witnesses in the
Snapchat that asked for it to stop[.]”
Viturello agreed with Backer’s determination that a “reasonable person should
know, under the circumstances, [that T.R.’s behavior] will have the effect of physically or
emotionally harming” Susan. Viturello described that the District educates students about
social media in general, and the dangers of social media, including a 7th grade course
called Digital Literacy in which the Library Media Specialist educates students about their
digital footprint and the impact they could have on other people. Viturello believed that
an 8th grader in the District in the Fall of 2021 would have understood that “when you
have a conversation like that, there’s a very good chance that it’s not going to remain
isolated when there’s over two dozen people on it.” Viturello explained that, although it
was Snapchat, there were over two dozen students on it and “knowing middle school
students, it’s very reasonable to understand that someone’s going to share a conversation
that was more than one comment.” Participants can also screenshot or camera-shot the
information posted on Snapchat “so the information travels.”
Based on the comments, Viturello agreed with Backer’s determination that T.R.’s
behavior had the effect of insulting or demeaning Susan. He also agreed with Backer’s
determination that T.R.’s behavior “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.” Viturello noted that Susan needed counseling,
and Jane left the school.
On or around November 22, 2021, Viturello forwarded the HIB Investigation Report
to the then Superintendent of Schools, Dr. Anne Mucci. (Stip. at ¶ 30.) On or around
November 22, 2021, Dr. Mucci approved the HlB Investigation Report without
modification. (Id. at ¶ 31; see J-5.) The parents were notified of Dr. Mucci’s decision via
letter dated November 22, 2021. (Id. at ¶ 32; see J-5.) That letter also informed the
parents of their right to request a hearing before the Board regarding the HIB
determination.

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10
The parents, through counsel, requested a Board hearing via e-mail on November
29, 2021. (Stip. at ¶ 33; see J-18.) On or about January 13, 2022, a hearing was held
before the Board. (Id. at ¶ 34; see J-17.) At that Board hearing, the Board agreed with
the recommendation of the Superintendent and upheld the determination that T.R. had
committed an act of HIB. (Id. at ¶ 35; see J-17.) Counsel for petitioner was notified of
the Board’s decision by letter dated January 19, 2022. (Id. at ¶ 36; see J-17.) That letter
(J-17) states in pertinent part:
For reasons set forth below, the Board affirmed the decision
of the Superintendent that [T.R.] committed an act of HIB and
that the discipline imposed was not unreasonable.
The allegations and findings for the HIB complaint are set forth
in the investigation report, a copy of which was previously
been provided to you. The Board agreed with the findings of
the report and affirmed the decision of the Superintendent
. . . . The Board agreed that [T.R.’s] actions met the legal
definition of HIB.
Specifically, the Board determined that [T.R.’s] comments
made online were clearly targeting a student’s perceived
characteristics including but not limited to the student’s
appearance, hygiene, sexuality, mental state/disability and
more. While [T.R.] may have thought that his comments
would not have been shared with [Susan], such a belief was
not reasonable given the vast number of students
participating in the chat, including students from other school
districts and even counties, many of whom [T.R.] admittedly
did not know. Moreover, [Susan] was made aware of the
comments, and thus was insulted/demeaned as contemplated
by the HIB law.
The Board also found that there was a substantial disruption
to the school environment as well as the rights of multiple
students as the contents of the chat were widely shared and
discussed in school. Moreover, . . . both [Susan] and [Jane]
have been noticeably and severely impacted by [T.R.’s].
individual actions as well as those attributed to the group of
students that engaged in the chat along with [T.R.]. Such
disruption was more than sufficient to trigger the Board’s
authority and responsibility to address the electronic
communication occurring off school grounds pursuant to
N.J.S.A. 18A:37-15.3, and N.J.A.C. 6A:16-7.5. It must be

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noted that the latter regulation grants schools the authority to
issue discipline not just based on the aggressor’s safety or
well-being as you argued at the hearing, but also “for reasons
relating to the safety, security and well-being of other
students, staff or school grounds,” which reasons were clearly
implicated in this case.
Petitioner filed a Petition of Appeal dated April 8, 2022, contesting the Board’s
determination. (See Stip. at ¶ 37; J-11.)
In addition to the evidence that forms the foundation of the aforesaid findings of
fact, a summary of other pertinent testimony follows.
The Testimony
T.R. currently attends the same high school as Susan and Jane and described that
he is now “friendly” with Susan. T.R. acknowledged that he knew that it was not okay to
bully people while in school, but articulated his understanding that the type of acts that
would involve bullying were “more in person, like physical things or saying stuff to people’s
face.” He also did not believe that there would be issues with bullying outside of school.
T.R. indicated that “20 something people” were in the chat group, including students from
surrounding towns, and T.R. agreed that hurtful things were said during the chat group,
including comments about Susan’s appearance. T.R. articulated his understanding that,
when using Snapchat, “we were talking in a private group that no one else could . . .
publicly see and that after 24 hours, it automatically deletes the chats.” T.R. testified that
he thought that what was said would never get back to Susan “because it automatically
deletes and it’s private,” and “in that group . . . there was not really people who were close
friends with her[.]”
T.R. described that he was “devastated” and “felt really horrible about what [he]
had said” when he found out that it was brought to Susan’s attention that derogatory
comments had been said about her. T.R. testified that he “wouldn’t have ever said
anything like that to her face,” and he “would have never said anything like that” if he had
any thought that it would possibly get back to Susan. T.R. acknowledged that he “never
should have done something like that,” and he “felt like a horrible person” and “really

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bad[.]” The incident physically affected him. T.R. alerted his parents that he was feeling
terrible and that the incident was affecting him physically. T.R. apologized to Susan a
couple of days after he was suspended. (See J-22.) According to T.R., they had a
conversation and they continued to have friendly conversations after that. T.R. testified
that, based on his discussion with Susan, she did not know what exactly was said about
her, Susan asked him to tell her what people were saying, and he declined to do so.
T.R.’s parents disciplined T.R. for the incident; the parents took his phone away and
grounded him. The parents also limited T.R.’s screen time when he got his phone back,
and the parents “would go through [his] phone a lot to make sure nothing else was
happening.”
T.R. articulated that he felt that the HIB determination was a “misrepresentation”
of who he is as a person, and the comments he made then are not a representation of
him as an entire person. T.R. testified that he has never said or done anything with the
intent of hurting someone and that such actions are not part of his character. T.R.
admitted that he deserved to be punished because he said “some horrible things,” but did
not “think that it was right to say that [he] was bullying.” T.R. described that he did not
want a letter in his file to affect him in the future regarding a potential college or job.
T.R.’s mother, J.R., confirmed that T.R. was disciplined at home for the incident,
which also included making T.R. watch a video on being an upstander and bullying. J.R.
acknowledged that T.R.’s comments were “terrible” and “very inappropriate.” She did not
believe that it was fair that T.R.’s actions have been categorized as bullying because “it
gives the perception that he was intentionally cruel, intentionally tried to harm someone
. . . or hurt their feelings or make them feel terrible about themselves or intimidate them.”
T.R. expressed to her that, using Snapchat, he never thought that his comments would
ever get back to Susan. J.R. described that the incident impacted T.R. She testified that
T.R. “was devasted”; he “cried a lot”; he “felt terrible that it got out and was shared, that
[Susan] was aware of it”; and T.R. “thought he was a really terrible person.” The six-day
OSS “exacerbated the situation” because T.R. had never heard of anyone getting an
OSS, and T.R. thought that he was “a really terrible person” and did “something that was
so awful to . . . warrant such a punishment.” J.R. described her disagreement with the

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six-day OSS and expressed concern about future employers becoming aware of the HIB
determination.
LEGAL DISCUSSION AND CONCLUSIONS
The Legislature enacted the Anti-Bullying Bill of Rights Act, N.J.S.A. 18A:37-13, et
seq., (the Act) to promote “a safe and civil environment in school” by preventing “conduct
that disrupts both a student’s ability to learn and a school's ability to educate its students
in a safe environment[.]” N.J.S.A. 18A:37-13. The Act is designed “to strengthen the
standards and procedures for preventing, reporting, investigating, and responding to
incidents of harassment, intimidation, and bullying of students that occur in school and off
school premises[.]” N.J.S.A. 18A:37-13.1(f).
The Act defines 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 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 . . . [N.J.S.A. 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

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by severely or pervasively causing physical or
emotional harm to the student.
[N.J.S.A. 18A:37-14.]
The Act requires school districts to adopt policies that prohibit HIB and include
procedures for reporting and investigating complaints of HIB and “consequences and
appropriate remedial action for a person who commits an act” of HIB. N.J.S.A.18A:37-
15(b); see N.J.A.C. 6A:16-7.7. T h e district’s policy “shall include provisions for
appropriate responses to [HIB] . . . that occurs off school grounds, in cases in which a
school employee is made aware of such actions.” N.J.S.A.18A:37-15.3. “The responses
to [HIB] . . . that occurs off school grounds shall be consistent with the board of education’s
code of student conduct and other provisions of the board’s policy on . . . [HIB].” Ibid.
See N.J.A.C. 6A:16-7.1(a) (“Each district board of education shall develop, adopt,
disseminate, and implement a code of student conduct that establishes standards,
policies, and procedures for positive student development and student behavioral
expectations on school grounds and, as appropriate, for conduct away from school
grounds”); N.J.A.C. 6A:16-7.5(a) (“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”); N.J.A.C. 6A:16-7.5(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”). The principal in each school must
appoint a school anti-bullying specialist, who shall “lead the investigation” of HIB incidents
in the school and “act as the primary school official responsible for preventing, identifying,
and addressing” HIB incidents in the school. N.J.S.A. 18A:37-20(a).
Although a school district is given “local control over the content of [its] policy,”
N.J.S.A. 18A:37-15(b) dictates certain time limits and requirements regarding the
reporting, the investigation and the determination of HIB complaints that must, at a
minimum, be included in the district's policy. In this regard, all acts of HIB must be
reported verbally to the school principal on the same day when the school employee or
contracted service provider witnessed or received reliable information regarding an

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15
alleged HIB incident, and such acts of HIB must be reported in writing to the school
principal within two school days of when the school employee or contracted service
provider witnessed or received reliable information that a student had been subject to
HIB. N.J.S.A. 18A:37-15(b)(5). In turn, the principal must “inform the parents or
guardians of all students involved in the alleged incident[.]” Ibid. The HIB “investigation
shall be initiated by the principal or the principal’s designee within one school day of the
report of the incident and shall be conducted by a school anti-bullying specialist.” N.J.S.A.
18A:37-15(b)(6)(a). The investigation must be completed “not later than 10 school days
from the date of the written report” of the HIB incident. Ibid. The results of the
investigation must be “reported to the superintendent of schools within two school days
of the completion of the investigation[.]” N.J.S.A. 18A:37- 15(b)(6)(b). The results of the
investigation must also be “reported to the board of education no later than the date of
the board of education meeting next following the completion of the investigation, along
with information on any services provided, training established, discipline imposed, or
other action taken or recommended by the superintendent.” N.J.S.A. 18A:37-15(b)(6)(c).
The board must issue a decision, in writing, to affirm, reject, or modify the
superintendent’s decision “at the next board of education meeting following its receipt of
the report,” which may be appealed to the Commissioner of Education. N.J.S.A. 18A:37-
15(b)(6)(e).
“[P]arents or guardians of the students who are parties to the investigation shall
be entitled to receive information about the investigation, in accordance with federal and
State law and regulation, including the nature of the investigation, whether the district
found evidence of . . . [HIB], or whether discipline was imposed or services provided to
address the incident of . . . [HIB].” N.J.S.A.18A:37-15(b)(6)(d). That “information shall be
provided in writing within 5 school days after the results of the investigation are reported
to the board.” Ibid. “A parent or guardian may request a hearing before the board after
receiving the information[.]” Ibid. The board must convene a hearing within ten days of
receiving such a request, and the board must “meet in executive session for the hearing
to protect the confidentiality of the students.” Ibid. During the hearing, “the board may
hear from the school anti-bullying specialist about the incident, recommendations for
discipline or services, and any programs instituted to reduce such incidents[.]” Ibid.

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It is well settled that actions within a school board’s authority are entitled to a
presumption of validity and will not be overturned in the absence of an affirmative showing
that the decision was arbitrary, capricious, or unreasonable. Thomas v. Morris Twp. Bd.
of Educ., 89 N.J. Super. 327, 332 (App. Div. 1965), aff’d, 46 N.J. 581 (1966). Stated
differently, the exercise of a school board’s discretionary powers may not be disturbed
unless shown to be “patently arbitrary, without rational basis or induced by improper
motives.” Kopera v. West Orange Bd. of Educ., 60 N.J. Super. 288, 294 (App. Div. 1960).
The scope of the Commissioner’s review is limited. The Commissioner’s role is not to
substitute his or her judgment for that of the Board, but to assess whether the Board had
a reasonable basis for its conclusions. Id. at 295-96. And “[w]here there is room for two
opinions, action is not arbitrary or capricious when exercised honestly and upon due
consideration, even though it may be believed that an erroneous conclusion has been
reached.” Bayshore Sewage Co. v. Dep’t of Envtl. Prot., 122 N.J. Super. 184, 199–200
(Ch. Div. 1973), aff’d, 131 N.J. Super. 37 (App Div. 1974).
Against this backdrop, petitioner does not allege any procedural violations
regarding the Board’s HIB determination and no such violations are apparent from the
record. Petitioner contends that the Board’s HIB determination is arbitrary, capricious and
unreasonable because it was predicated on the Board’s HIB Policy, which altered the
language of N.J.S.A. 18A:37-14. Specifically, petitioner argues that the Board’s Policy
inserted the word “or” at the end of subsection (a) and, therefore, converted the
“reasonable person” element of the statute from an essential element of HIB to only
one of three possible elements. Petitioner avers that subsection (a), that a reasonable
person should know the act will have a harmful effect, is a required finding to constitute
an act of HIB, followed by a combination of subsection (b) or (c).
Our courts have articulated the principles governing statutory construction. The
“overriding objective in determining the meaning of a statute is to ‘effectuate the legislative
intent in light of the language used and the objects sought to be achieved.’” McCann v.
Clerk of Jersey City, 167 N.J. 311, 320 (2001) (citation omitted). The Supreme Court
explained in Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592 (2012) (citations
omitted):

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The objective of all statutory interpretation is to discern and
effectuate the intent of the Legislature. To achieve that
objective, we begin by looking at the statute’s plain language,
ascribing to the words used “their ordinary meaning and
significance.” We do not view the statutory words in isolation
but “in context with related provisions so as to give sense to
the legislation as a whole.” If the Legislature’s intent is clear
on the face of the statute, then we must apply the law as
written. It is not our function to rewrite a plainly written statute
or to presume that the Legislature meant something other
than what it conveyed in its clearly expressed language.
“If the plain language leads to a clear and unambiguous result, then [the] interpretive
process is over.” Richardson v. Bd. of Trs. Police & Firemen’s Ret. Sys., 192 N.J. 189,
195 (2007). It is not the function of this forum “to ‘rewrite a plainly-written enactment,’ or
to presume that the drafter intended a meaning other than the one ‘expressed by way of
the plain language.’” U.S. Bank, N.A. v Hough, 210 N.J. 187, 199 (2012) (citation
omitted).
Succinctly stated, the plain and unambiguous language of N.J.S.A. 18A:37-14
does not support petitioner’s position. Rather, as the Commissioner explained in Wehbeh
v. Verona Bd. of Educ., EDU 10981-18, Comm’r, (February 4, 2020)
https://www.nj.gov/education/legal:
[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. The third condition is that one
of the three criteria enumerated in the Act regarding the effect
of the conduct must also be satisfied. (Emphasis added.)
See also N.U. v. Mansfield Bd. of Educ., EDU 09701-20, Comm’r, (August 10, 2022)
https://www.nj.gov/education/legal; R.H. and M.H. o/b/o A.H. v. Sayreville Bd. of Educ.,
EDU 09435-17 and EDU 14833-17 (consolidated), Comm’r, (September 23, 2021)
https://www.nj.gov/education/legal; Klapach v. Fort Lee Bd. of Educ., EDU 5069-20,
Comm’r, (April 6, 2021) https://www.nj.gov/education/legal. The conduct must also take

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place on school property, at a school-sponsored function, on a school bus or off school
grounds as provided by N.J.S.A. 18A:37-15.3.
Indeed, the Commissioner in Wehbeh specifically rejected petitioner’s asserted
construction of the statute:
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.
[Id. at footnote 2.]
Turning to the evidence, I CONCLUDE that petitioner failed to sustain her burden
of establishing that the Board acted in an arbitrary, capricious, or unreasonable manner
in finding that T.R. committed an act of HIB.
Regarding the first element, 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, “the statute requires an analysis of how the actor’s motivation is perceived
and whether that perception is reasonable[;] [i]t does not require an analysis of the actual
motivation of the actor.” R.H. and M.H.; Wehbeh. Here, it was not arbitrary, capricious,
or unreasonable for the Board to conclude that a reasonable person would consider T.R.’s
Snapchat posts to be motivated by the target student’s distinguishing or perceived
characteristics regarding her appearance, including her weight and sexuality.3
Regarding the second element, there is ample evidence in the record that T.R.’s
Snapchat posts caused a substantial disruption to or interference with “the orderly
operation of the school or the rights of other students[.]” Viturello testified that the victim,
3 T.R.’s comments include, among others, that the target student “looks like medusa with her new hair”;
“her and [another student] probably weigh as much as our whole friend group combined”; “nobody can ever
say she wakes up on the wrong side of the bed because she wakes up on both”; “she takes up more storage
than my PC has”; and “why would she even take mirror pics like you can’t even see part of her cause it
goes past the mirror.” (See J-1 at R006; J-7; J-13.)

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Susan, “was very anxious about the situation, was very impacted, [and] needed multiple
counseling sessions[.]” She also expressed fear of going to the high school because the
incident involved not only Long Hill students but students in surrounding towns. Similarly,
Backer testified that Susan “was visually very upset” about the comments said about her,
she was crying and embarrassed, and she expressed concern about going to the high
school. In addition, Viturello testified that the student who reported the information, Jane,
was “very concerned about retribution” from the students involved in the conduct. Indeed,
Jane’s parents signed her out of the school after she reported the incident and Jane
remand homeschooled for the remainder of the 2021–2022 school year. Viturello testified
that he spoke with T.R.’s mother, who was concerned about T.R.’s mental health based
on his involvement in the incident. This resulted in school staff conducting a risk
assessment at T.R.’s home. Backer further testified that there was an interference with
operation of the school as a whole and the incident “had a substantial interference with
the school day.” She described that “there were about 25 students that were involved on
the Snapchat, so clearly it was spoken about within the middle school halls”; “[t]here were
a lot of students that were interviewed”; and “there were a lot of staff members that were
involved in the interview process and the HIB investigation[.]” Accordingly, given this
evidence, the Board was not arbitrary, capricious, or unreasonable in finding a substantial
disruption to the school environment and the rights of multiple students.
Regarding the third element, 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 any student,” or “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. Plainly, T.R.’s comments had the “effect of insulting or demeaning” Susan.
Backer further explained that the conduct created a hostile education environment as
Susan relayed that she did not want to go to the high school where the involved students
would be attending, and Viturello noted that Susan needed counseling and Jane left the
school. In short, given this evidence, the Board was not arbitrary, capricious, or
unreasonable in finding that T.R.’s conduct satisfied N.J.S.A. 18A:37-14(b) and (c).

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The crux of petitioner’s argument focuses on whether “a reasonable person should
know, under the circumstances, [that T.R.’s comments] will have the effect of physically
or emotionally harming a student[.]” N.J.S.A. 18A:37-14(a). Apart from the fact that, even
if this issue is resolved in petitioner’s favor, the HIB finding is supported by the other two
alternative criteria, l am unpersuaded by petitioner’s argument. Although T.R. testified
regarding his belief that his comments would never get back to Susan based on his
understanding that he was talking in a private group on Snapchat, and the chats are
automatically deleted after twenty-four hours, the governing standard is objective, not
subjective. The pertinent inquiry is what a reasonable person should know under the
circumstances, not what T.R. knew. In other words, the statute does not “require the
actor to have actual knowledge of the effect that [his/her] actions will have, or to
specifically intend to bring about that effect.” Wehbeh. Rather, it 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.” Ibid.
There is no doubt that a reasonable person should and would know that T.R.’s
social media posts would have the effect of emotionally harming Susan based on the
insulting and demeaning content of the comments. T.R.’s subjective intention to keep his
comments private is not controlling. Further, a reasonable 8th grade student would be
aware of the ability to screenshot texts or pictures and, thus, should know, under the
circumstances, that the posted insults may not remain confined to the Snapchat
participants and might be revealed to Susan even if the Snapchat posts later disappeared.
Given the ease under which electronic communications may be copied or shown to other
persons, it is certainly reasonable to expect a thirteen-year-old student to understand that
someone could disseminate his comments regardless of the forum in which they were
posted. In this regard, Viturello testified that although it was Snapchat, there were over
two dozen students on it, and “knowing middle school students, it’s very reasonable to
understand that someone’s going to share a conversation that was more than one
comment.” He further noted that participants can screenshot or camera-shot the
information posted on Snapchat “so the information travels.” Backer explained, “[m]aking
fun of someone’s appearance, [and] their sexuality, . . . a normal person would understand
that . . . would be hurtful to that person and could cause emotional harm.” Backer believed
that a reasonable 8th grader would know under the circumstances that the conduct that

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21
T.R. admitted to would have the effect of physically or emotionally harming a student.
She testified that “a reasonable 8th grade student would be aware that there are negative
implications associated with that kind of language,” and a “reasonable person would think
that using that language with a group of 25 plus students would get back to that student.”
Simply put, the evidence fails to establish that the Board’s conclusion that “a reasonable
person should know, under the circumstances, [that T.R.’s comments] will have the effect
of physically or emotionally harming” Susan was arbitrary, capricious, or unreasonable.
N.J.S.A. 18A:37-15.3 provides that conduct may be considered HIB when it takes
place on school property, at any school-sponsored function, on a school bus, or off school
grounds as provided for in N.J.S.A. 18A:37-15.3. In turn, N.J.S.A. 18A:37-15.3 instructs
that HIB policies adopted by a school district board of education “shall include provisions
for appropriate responses to [HIB] . . . that occurs off school grounds, in cases in which a
school employee is made aware of such actions.” Additionally, N.J.A.C. 6A:16-7.5
directs:
(a) 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 that 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.

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(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.
Accordingly, a board of education is required to investigate HIB complaints even if
they occur outside of school. Here, the Board received an HIB complaint involving
Snapchat posts that occurred outside of school hours, so it was required to investigate
the allegations. As the Snapchat posts involved students who attended CMS and
substantially disrupted and interfered with the orderly operations of the school and the
rights and wellbeing of the victim and other students, the Board was not arbitrary,
capricious, or unreasonable in investigating the conduct that occurred off school grounds,
finding that it met the definition of HIB, and imposing consequences for the unwarranted
conduct.
In sum, the elements of the legal definition of an act of HIB have been satisfied in
this case, and the Board’s decision to uphold the HIB determination is not arbitrary,
capricious or unreasonable.
Finally, I CONCLUDE that the imposed six-day OSS did not violate T.R.’s First
Amendment rights, and the OSS cannot be said to be arbitrary, capricious, or
unreasonable.
Initially, it is observed that the six-day OSS was imposed on or about November
21, 2021, based on Viturello’s determination that T.R. had violated various requirements
of the CMS Code of Conduct. Since the imposed consequence consisted of a short-term
suspension, no formal appeal hearing before the Board was required, and petitioner’s
remedy consisted of an appeal to the Commissioner. See N.J.A.C. 6A:16-7.2. Here,
petitioner filed her Petition of Appeal on or about April 12, 2022, which is beyond the
required 90-day appeal period. See N.J.A.C. 6A: 3-1.3(i). However, given that HIB
Investigation Report also lists the six-day OSS as a consequence for the HIB violation (J-
1 at R014), I will consider petitioner’s argument in the context of the Board’s HIB
determination.

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In Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), the United
States Supreme Court recognized that “conduct by the student, in class or out of it, which
for any reason -- whether it stems from time, place, or type of behavior -- materially
disrupts classwork or involves substantial disorder or invasion of the rights of others is, of
course, not immunized by the constitutional guarantee of freedom of speech.” Id. at 513.
More recently, the Supreme Court addressed a student’s First Amendment rights in the
context of off-campus speech in Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180 (2021).
In Mahanoy, a public high school student used, and transmitted to her Snapchat
friends, outside of school hours and away from the school, vulgar language and gestures
criticizing the school’s cheerleading team after she did not make the varsity cheerleading
team. Id. at 183-184. In response, the school suspended the student from the junior
varsity cheerleading squad for the upcoming year. Id. at 185.
The Court in Mahanoy made clear that “schools have a special interest in
regulating speech that ‘materially disrupts classwork or involves substantial disorder or
invasion of the rights of others.’” 594 U.S. at 188 (quoting Tinker, 594 U.S. at 513). The
Court held that “[t]hese special characteristics call for special leeway when schools
regulate speech that occurs under its supervision.” Id. at 188. The Court rejected the
notion that “the special characteristics that give schools additional license to regulate
student speech always disappear when a school regulates speech that takes place off
campus,” and recognized that “[t]he school’s regulatory interests remain significant in
some off-campus circumstances.” Ibid. The Court declined to adopt a specific list of off-
campus behavior that may call for school regulation, believing that it “would deny the off-
campus applicability of Tinker’s highly general statement about the nature of a school’s
special interests.” Id. at 189. The Court explained:
Particularly given the advent of computer-based learning, we
hesitate to determine precisely which of many school-related
off-campus activities belong on such a list. Neither do we now
know how such a list might vary, depending upon a student’s
age, the nature of the school’s off-campus activity, or the
impact upon the school itself. Thus, we do not now set forth
a broad, highly general First Amendment rule stating just what
counts as “off campus” speech and whether or how ordinary

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First Amendment standards must give way off campus to a
school’s special need to prevent, e.g., substantial disruption
of learning-related activities or the protection of those who
make up a school community.
[Id. at 189.]
The Court identified “three features of off-campus speech that often, even if not
always, distinguish schools’ efforts to regulate that speech from their efforts to regulate
on-campus speech,” and that “[t]hose features diminish the strength of the unique
educational characteristics that might call for special First Amendment leeway.” Id. at
189. “First, a school, in relation to off-campus speech, will rarely stand in loco parentis,”
and thus, “off-campus speech will normally fall within the zone of parental, rather than
school-related, responsibility.” Ibid. “Second, from the student speaker’s perspective,
regulations of off-campus speech, when coupled with regulations of on-campus speech,
include all the speech a student utters during the full 24-hour day,” meaning that “courts
must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so
may mean the student cannot engage in that kind of speech at all.” Id. at 189-190. “Third,
the school itself has an interest in protecting a student’s unpopular expression, especially
when the expression takes place off campus” in that “America’s public schools are the
nurseries of democracy [and] [o]ur representative democracy only works if we protect the
‘marketplace of ideas.’” Id. at 190. In this regard, the Court held:
Given the many different kinds of off-campus speech, the
different potential school-related and circumstance-specific
justifications, and the differing extent to which those
justifications may call for First Amendment leeway, we can, as
a general matter, say little more than this: Taken together,
these three features of much off-campus speech mean that
the leeway the First Amendment grants to schools in light of
their special characteristics is diminished. We leave for future
cases to decide where, when, and how these features mean
the speaker’s off-campus location will make the critical
difference.
[Ibid.]
Regarding the student’s Snapchat posts, the Court stated:

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Putting aside the vulgar language, the listener would hear
criticism, of the team, the team’s coaches, and the school—in
a word or two, criticism of the rules of a community of which
B.L. forms a part. This criticism did not involve features that
would place it outside the First Amendment’s ordinary
protection. B.L.’s posts, while crude, did not amount to
fighting words. And while B.L. used vulgarity, her speech was
not obscene as this Court has understood that term. To the
contrary, B.L. uttered the kind of pure speech to which, were
she an adult, the First Amendment would provide strong
protection . . . . (“The inappropriate . . . character of a
statement is irrelevant to the question whether it deals with a
matter of public concern”).
Consider too when, where, and how B.L. spoke. Her posts
appeared outside of school hours from a location outside the
school. She did not identify the school in her posts or target
any member of the school community with vulgar or abusive
language. B.L. also transmitted her speech through a
personal cellphone, to an audience consisting of her private
circle of Snapchat friends. These features of her speech,
while risking transmission to the school itself, nonetheless
. . . diminish the school’s interest in punishing B.L.’s
utterance.
[Id. at 190-191; Citations omitted and Emphasis added.]
In concluding that the student’s First Amendment rights had been violated
because the school’s special interest in regulating some off-campus student speech was
not sufficient to overcome the student’s First Amendment interests, the Court, among
other things, found “no evidence in the record of the sort of ‘substantial disruption’ of a
school activity or a threatened harm to the rights of others that might justify the school’s
action.” Id. at 192. Rather, the record revealed “that discussion of the matter took, at
most, 5 to 10 minutes of an Algebra class ‘for just a couple of days’ and that some
members of the cheerleading team were ‘upset’ about the content of B.L.’s Snapchats.”
Ibid.
The facts of this case are markedly distinguishable from those existing in Mahanoy.
T.R.’s comments were unrelated to any public concern or community interest and
contributed nothing to the “marketplace of ideas.” Further, in contrast to the social media
posts in Mahanoy, T.R.’s posts targeted another student, Susan, with offensive and

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26
insulting comments about her physical appearance. See Doe v. Hopkinton Public
Schools, 19 F. 4th 493, 506 (1st Cir. 2021) (“‘bullying is the type of conduct that implicates
the governmental interest in protecting against the invasion of the rights of others, as
described in Tinker.’”) (Citations omitted.) And T.R.’s comments “materially disrupt[ed]
classwork or involve[d] substantial disorder or invasion of the rights of others.” Tinker,
594 U.S. at 513; Mahanoy 594 U.S. at 188. As noted, multiple students were affected by
the Snapchat posts. Susan was very upset about the comments and expressed concern
about going to the high school, necessitating the provision of counselling; Jane left the
school; and T.R. himself required a mental health risk assessment. Additionally, the
Snapchat posts were talked about in the middle school halls and caused a substantial
disruption to the school. See R.H. and M.H. (wherein the Commissioner rejected the
petitioner’s argument that Mahanoy prevented the Board from regulating her speech and
held that “the impact of the social media post on the school violated the HIB statute and
is within the school’s authority to regulate.”).
The Board’s HIB Policy (J-23), along with its separate Conduct/Discipline Policy
(J-8), address the right and authority of the chief school administrator to impose a
consequence on a student for conduct away from school grounds, which essentially
reiterates the provisions of N.J.A.C. 6A:16-7.5. As previously addressed, the Snapchat
posts involved students who attended CMS and substantially disrupted and interfered
with the orderly operations of the school, coupled with the rights and wellbeing of the
victim and other students. Accordingly, I CONCLUDE that the school had the authority
to impose a consequence for T.R.’s conduct, and the imposition of the six-day OSS was
consistent with the governing law and not arbitrary, capricious, or unreasonable.
ORDER
Based upon the foregoing, I ORDER that the Petition of Appeal be and hereby is
DISMISSED.
I hereby FILE this initial decision with the COMMISSIONER OF THE
DEPARTMENT OF EDUCATION for consideration.

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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 28, 2024
DATE MARGARET M. MONACO, ALJ
Date Received at Agency:
Date Mailed to Parties:
jb

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APPENDIX
List of Witnesses
For Petitioner:
T.R.
J.R
For Respondents:
Michael Viturello
Melissa Backer
List of Exhibits in Evidence
Joint:
J-1 HIB Investigation Report
J-2 E-mails dated November 11 and 12, 2021
J-3 Letter from Principal Viturello to T.R.’s parents dated November 12, 2021
J-4 Letter from Principal Viturello to T.R.’s parents dated November 12, 2021
J-5 Letter from Superintendent Mucci to T.R.’s parents dated November 22, 2021
J-6 Letter from Douglas M. Silvestro, Esq., to Jerald F. Oleske, Esq., dated November
23, 2021
J-7 Screenshots of Snapchat messages
J-8 Board Policy 5131 - Conduct/Discipline
J-9 Central Middle School 2021–2022 Student Manual and Code of Conduct
J-10 E-mail dated September 10, 2021
J-11 Petition of Appeal
J-12 Answer to Petition of Appeal
J-13 T.R.’s Statements in Snapchat
J-14 E-mail dated December 6, 2021 and Incident Notes Log

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J-15 No exhibit admitted
J-16 No exhibit admitted
J-17 Letter from Douglas M. Silvestro, Esq., to Jerald F. Oleske, Esq., dated January
19, 2022
J-18 E-mails dated November 29, 2021
J-19 E-mail dated November 28, 2021
J-20 Letter from Kristen Duesel Oleske, Esq., and Jerald F. Oleske, Esq., to Principal
Viturello dated November 18, 2021
J-21 Joint Statement of Undisputed Facts
J-22 Text messages
J-23 Board Policy 5131.1- Harassment, Intimidation and Bullying