S.H. and J.H., on behalf of minor child, G.H. v. Board of Education of the West Essex Regional School District, Essex County, 3/24/25 (#104-25)

104-25
OAL Dkt. No. EDU 10052-23
Agency Dkt. No. 214-8/23
New Jersey Commissioner of Education
Final Decision
S.H. and J.H., on behalf of minor child, G.H.,
Petitioners,
v.
Board of Education of the West Essex Regional
School District, Essex County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by petitioners pursuant to N.J.A.C. 1:1-18.4, and the West Essex Regional
School District Board of Education’s (Board) reply thereto, have been reviewed and considered.
This matter involves petitioners’ challenge to the Board’s determination that their minor
child, G.H., committed an act of harassment, intimidation, or bullying (HIB). The Anti-Bullying Bill
of Rights Act (Act), N.J.S.A. 18A:37-13 et seq., 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

2
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.
[N.J.S.A. 18A:37-14.]
In this case, the Board upheld the HIB investigation conducted by the Anti-Bullying
Specialist (ABS), who determined that G.H. called the black victim a “monkey” in the hallway
outside of a classroom. 	While petitioners fully acknowledge that G.H. “used a racial epithet”
toward the victim, they claim that G.H. did so in response to the victim calling him a “terrorist.”
The Administrative Law Judge (ALJ) granted the Board’s motion for summary decision upon
concluding that the material facts were undisputed and the Board’s HIB determination was not
arbitrary, capricious, or unreasonable.
In their exceptions, petitioners dispute the ALJ’s finding that Jane’s1 parents filed a HIB
Reporting Form indicating that Jane reported “that ‘so many people’ call black students
‘monkeys’” and “[t]his contributes heavily to [Jane’s] view that th[e] school is not a safe space . .
. .” They also dispute the ALJ’s finding that the ABS interviewed Jane, who identified the victim.
They claim that the documents upon which the ALJ relied are hearsay and double hearsay, that
1 Jane is a pseudonym. She is not the victim of G.H.’s racial epithet.

3
no evidence or certifications were submitted to establish that the documents fall under a hearsay
exception, and that the documents were never authenticated.
Additionally, petitioners dispute the ALJ’s finding that the ABS interviewed the victim,
who stated that G.H. called her a monkey in the school hallway. According to the report, the
victim believed that she was targeted because of her race and felt uncomfortable coming to
school because of the names she was called. In addition to arguing that the documents relied
upon by the ALJ contain hearsay and double hearsay and were not properly authenticated,
petitioners contend that the ALJ erroneously viewed the documents in the light most favorable
to the moving party, as opposed to the non-moving party, and inappropriately determined that
the information contained therein was credible.2
As for the ALJ’s legal conclusions, petitioners argue that summary judgment is
inappropriate because the absence of written documentation to corroborate G.H.’s admission
creates genuine issues of material fact, including whether G.H. acted in response to being called
a “terrorist.” They maintain that without that context, it is impossible to determine how G.H.’s
motivation could be perceived by an objectively reasonable person. 	They claim that material
facts regarding procedural deficiencies and alleged bias in the HIB investigation are also disputed
and further demonstrate that the Board acted in disregard of the circumstances. Finally, they
argue that the elements of the HIB statute are not satisfied, and that it was arbitrary, capricious,
2 Petitioners further dispute the ALJ’s finding that no one reported a HIB incident in connection with the alleged
“terrorist” comment made to G.H. Petitioners claim that the ABS was required by law to initiate a HIB investigation
regarding the “terrorist” comment, that neither parents nor children are required to initiate a HIB investigation, and
that the Board should not be absolved from responsibility for same.

4
and unreasonable for the Board to impose strict liability on G.H. without any concern over the
racist comments that were first directed at him.
In response, the Board argues that the Commissioner should adopt the ALJ’s Initial
Decision. It contends that petitioners’ exceptions repeat arguments previously considered and
properly rejected by the ALJ. It maintains that its HIB determination was not arbitrary, capricious,
or unreasonable.
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. W. Orange Bd. of Educ., 60 N.J. Super. 288, 294 (App. Div. 1960). Regarding
HIB determinations, this standard of review requires petitioners 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. of Educ. of Borough of Franklin Lakes, Bergen Cty., OAL Dkt. No. EDU 13204-13,
Initial Decision (Feb. 24, 2014), adopted, Commissioner Decision No. 157-14 (Apr. 10, 2014). The
Commissioner may not substitute his judgment for that of the Board. Schinck v. Bd. of Educ. of
Westwood Consol. Sch. Dist., 60 N.J. Super. 448, 476 (App. Div. 1960).
Upon careful review of the entire record, the Commissioner adopts the Initial Decision of
the ALJ as the final decision in this matter. 	The Commissioner concurs with the ALJ that
petitioners failed to satisfy their heavy burden of demonstrating that the Board acted arbitrarily,
capriciously, or unreasonably when it determined that G.H. committed an act of HIB as defined
at N.J.S.A. 18A:37-14. 	Petitioners have not shown that the Board’s HIB determination was
arbitrary, without rational basis, or induced by improper motives. 	Nor have petitioners

5
demonstrated that the Board acted in bad faith or in utter disregard of the circumstances before
it at any point during the HIB investigation.
As explained by the ALJ in the Initial Decision, a finding of HIB requires three elements
under the Act. 3 First, the conduct at issue must be reasonably perceived by the victim as being
motivated by any actual or perceived characteristic expressly identified in the statute, or by any
other distinguishing characteristic. Second, the conduct must substantially disrupt or interfere
with the rights of other students or the orderly operation of the school. Third, one of the three
conditions set forth in subsections (a), (b), and (c) must be satisfied. Wehbeh v. Bd. of Educ. of
Twp. of Verona, Commissioner Decision No. 510-20 (Feb. 4, 2020).
The Commissioner agrees with the ALJ that G.H.’s conduct satisfies the statutory
definition of HIB. Regarding the first element, the Commissioner finds that it was not arbitrary,
capricious, or unreasonable for the Board to conclude that the victim reasonably perceived that
G.H.’s conduct was racially motivated. 	G.H.’s actual intent or motivation is not a necessary
component of HIB under the Act. 	The pertinent statutory inquiry is whether the victim
reasonably perceived that G.H.’s conduct toward her was racially motivated. See Wehbeh, at 8
(“[T]he statute requires an analysis of how the actor’s motivation is perceived and whether that
perception is reasonable. It does not require an analysis of the actual motivation of the actor.”).
The Commissioner finds that it was entirely reasonable for the victim, who is black, to perceive
that G.H. calling her a “monkey” was racially motivated — regardless of G.H.’s actual intent. As
recognized by the ALJ, “Primate rhetoric has been used to intimidate African Americans
throughout our country’s history, and monkey imagery has been significant in racial harassment.”
3 The parties do not dispute that the conduct at issue took place on school property.

6
Initial Decision, at 6 (citing Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 911 (8 th Cir.
2006)).
As for the second element, the Commissioner finds that it was not arbitrary, capricious,
or unreasonable for the Board to conclude that G.H.’s conduct substantially disrupted or
interfered with the rights of other students or the orderly operation of the school. Conduct has
been determined to substantially disrupt the orderly operation of the school when students are
so upset or embarrassed that they are “not fully available for learning.” 	G.H., supra, Initial
Decision at 18. Moreover, when other students are “so affected” by the offender’s conduct that
they report it, the orderly operation of the school may be substantially disrupted. T.R. and T.R.
o/b/o E.R. v. Bridgewater-Raritan Reg’l Bd. of Educ., OAL Dkt. No. EDU 10208-13, Initial Decision
(Sept. 25, 2014), adopted, Commissioner Decision No. 450-14 (Nov. 10, 2014).
Here, the record reflects that the victim was uncomfortable coming to school because of
the names she was called. 	She missed five days of school, including the day after she was
interviewed during the HIB investigation. She also had her seat changed and spent time with her
guidance counselor on several occasions. 	Clearly, she was not fully available for learning.
Additionally, Jane was so affected by hearing the word “monkey” used toward black students
that she believed her school was not a safe space and discussed it with her parents. The Act’s
preamble provides that “a safe and civil environment in school is necessary for students to learn
and achieve high academic standards.” N.J.S.A. 18A:37-13. All students have the right to attend
school in an environment free of offensive and degrading racial comments.
Concerning the third element, the Commissioner finds that it was not arbitrary,
capricious, or unreasonable for the Board to conclude that a reasonable person should know,

7
under the circumstances, that calling a black student a “monkey” has the effect of emotionally
harming, insulting, or demeaning that student. 	“Racial epithets are regarded as especially
egregious and capable of engendering a severe impact.” Taylor v. Metzger, 152 N.J. 490, 502
(1998). “[T]he intent of the HIB law is to ensure that such misconduct is properly redirected at
an early age. Every action has a reaction; better to learn young and in school that racial epithets
are intolerable . . . .” G.H., supra, Initial Decision at 18. For these reasons, the Commissioner
rejects petitioners’ assertion that the requisite elements of the HIB statute were not satisfied.
Turning to petitioners’ remaining exceptions, the Commissioner does not find them to be
persuasive. 	Their hearsay objections with respect to information contained in the HIB
investigation reports in evidence are unavailing for several reasons.4 	At the outset, the Act
neither instructs boards how they must question those interviewed during HIB investigations nor
defines acceptable sources of information for boards to consider when investigating HIB
allegations. Specifically, the Act does not prohibit board reliance upon hearsay evidence. See
L.K. and T.K. o/b/o A.K. v. Bd. of Educ. of Twp. of Mansfield, Commissioner Decision No. 318-21
(Dec. 9, 2021) at 5, aff’d, 2023 N.J. Super. Unpub. LEXIS 1788 (App. Div. Oct. 17, 2023).
Furthermore, petitioners’ exceptions overlook the fact that the New Jersey Rules of
Evidence are not applicable at OAL proceedings “except as specifically provided” in the New
Jersey Administrative Code. 	N.J.A.C. 1:1-15.1(c). 	Hearsay evidence is admissible at the OAL,
subject to the residuum rule, “and shall be accorded whatever weight the judge deems
4 The HIB investigation reports and related documents in evidence are presumed authentic under OAL rules. N.J.A.C.
1:1-15.6. The ALJ found, and the Commissioner agrees, that petitioners provided no legitimate basis for challenging
the authenticity of the documents. Therefore, the documents did not need to be formally authenticated to be
admitted and considered by the ALJ. Initial Decision, at 6 n.1.

8
appropriate taking into account the nature, character and scope of the evidence, the
circumstances of its creation and production, and, generally, its reliability.” N.J.A.C. 1:1-15.5(a).
The residuum rule requires “some legally competent evidence . . . to support each ultimate
finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or
appearance of arbitrariness.” N.J.A.C. 1:1-15.5(b).
“Applying the residuum rule requires identifying the ‘ultimate finding of fact’ that must
be supported by a residuum of competent evidence.” In re Tenure Hearing of Cowan, 224 N.J.
Super. 737, 750 (App. Div. 1988). In this matter, the “ultimate finding of fact” is whether G.H.
engaged in conduct that constitutes HIB under the Act. 	R.G.B. v. Village of Ridgewood Bd. of
Educ., OAL Dkt. No. EDU 14213-12, Initial Decision at 17 (Apr. 1, 2013), adopted, Commissioner
Decision No. 242-13 (June 24, 2013). A “combined probative force of the relevant hearsay and
the relevant competent evidence” is required to sustain the ultimate finding regarding whether
HIB took place. Ibid.
The ALJ’s factual findings disputed by petitioners – i.e., that a HIB report indicated that
many people at school call black students “monkeys,” that Jane later identified the victim, that
the victim reported to the ABS that G.H. called her a monkey in the school hallway, and that no
one initiated a HIB report regarding the alleged “terrorist” comment made to G.H. – are not the
ultimate finding of fact in this matter. For that reason, each of those individual findings need not
be supported by a residuum of competent evidence.5 The critical evidence in this case is G.H.’s
own admission. 	At no point have petitioners contended that G.H.’s admission was untrue,
5 In any event, Jane’s general concern about the use of the word “monkeys” toward black students and the victim’s
more specific statements to the ABS regarding G.H.’s conduct were corroborated by G.H. himself.

9
untrustworthy, or unreliable; G.H.’s admission is competent evidence which supports the
ultimate finding of fact that he committed an act of HIB. See Ruroede v. Borough of Hasbrouck
Heights, 214 N.J. 338, 358 (2013) (explaining that an admission is competent evidence).
As 	for 	petitioners’ 	contention 	that 	summary 	judgment 	was 	inappropriate, 	the
Commissioner disagrees. 	It is undisputed that G.H. called the black victim a “monkey.” 	The
Commissioner finds that any factual disputes concerning whether G.H. acted in response to being
called a “terrorist” are immaterial and do not preclude the granting of summary judgment to the
Board. Even assuming G.H.’s actions had been prompted by a comment made by the victim, that
would not excuse or otherwise mitigate his conduct.6 See, e.g., S.P. o/b/o E.P. v. Bd. of Educ. of
Twp. of Montgomery, Commissioner Decision No. 46-25 at 7 (Feb. 7, 2025) (HIB finding upheld
despite offender’s insistence that his actions were prompted by a pencil poke from the victim).
The Commissioner further finds that petitioners’ claims of procedural irregularities and
alleged bias during this HIB investigation when compared to an unrelated HIB investigation in
which G.H. accused another student of HIB are unfounded and unsupported by the record.
Petitioners fail to cite any legal authority that requires HIB investigations involving completely
different circumstances to be conducted in an identical manner, or for parents to be present
during ABS interviews, or for written victim and/or witness statements to be required. The ALJ
properly concluded that the unrelated HIB investigation “was a separate incident that had
nothing to do with the victim in this case, and S.H. and J.H. did not appeal that decision.” Initial
Decision, at 9.
6 As part of this HIB investigation, the ABS interviewed multiple student witnesses regarding G.H.’s allegation that
the victim called him a “terrorist” but ultimately could not substantiate his claim.

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Accordingly, the Initial Decision is adopted as the final decision in this matter, the Board’s
motion for summary decision is granted, and the petition of appeal is hereby dismissed.
IT IS SO ORDERED.7
COMMISSIONER OF EDUCATION
Date of Decision: 	March 24, 2025
Date of Mailing: 	March 26, 2025
7 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 10052-23
AGENCY DKT. NO. 214-8/23
S.H. AND J.H. ON BEHALF OF MINOR
CHILD, G.H.,
Petitioners,
v.
WEST ESSEX REGIONAL SCHOOL DISTRICT
BOARD OF EDUCATION, ESSEX COUNTY
Respondent.
_______________________________________
Eric Magnelli, Esq., for petitioners (Brach Eichler, attorneys)
Raina M. Pitts, Esq., for respondent (Methfessel & Werbel, attorneys)
Record Closed: November 11, 2024 	Decided: December 30, 2024
BEFORE ANDREA PERRY VILLANI, ALJ:
STATEMENT OF THE CASE
Respondent, the West Essex Board of Education, determined that minor student,
G.H., committed harassment, intimidation or bullying (HIB) on the basis that he used a
racial epithet toward a black child at school. 	Must the determination stand? 	Yes.
When the decision of a board of education has a reasonable basis, it is entitled to a

OAL DKT. NO. EDU 10052-23
2
presumption of correctness and must not be upset. 	Thomas v. Morris Twp. Bd. of
Educ., 89 N.J. Super. 327, 332 (App. Div. 1965).
PROCEDURAL HISTORY
On May 11, 2023, the West Essex Board of Education (Board) found that minor
student, G.H., committed harassment, intimidation or bullying (HIB) in violation of the
Anti-Bullying Bill of Rights Act (ABRA). (R-9.)
On August 1, 2023, G.H.’s parents, S.H. and J.H., filed a Petition on G.H.’s
behalf with the Commissioner of Education appealing the Board’s determination that
G.H. committed HIB. (R-1.)
On September 27, 2023, the New Jersey Department of Education, Office of
Controversies and Disputes, transmitted the matter as a contested case to the Office of
Administrative Law (OAL) under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to
-15, and the act establishing the OAL, N.J.S.A. 52:14F-1 to -23.
Judge 	Elissa 	Testa 	held 	pre-hearing 	conferences 	on 	October 	23, 	2023,
December 5, 2023, and January 4, 2024. 	On January 4, 2024, she entered a Pre-
hearing Order for completion of discovery by April 5, 2024, and scheduled hearing dates
for May 14, 2024, and May 16, 2024.
On March 15, 2024, the case was reassigned to me. 	On March 29, 2024,
counsel for S.H. and J.H. raised several discovery issues via email, and on April 11,
2024, I conducted a pre-hearing conference and granted counsel’s request to file a
motion for leave to take a deposition. 	I also adjourned the May hearing dates to July
16, 2024, and July 17, 2024.
On April 26, 2024, counsel for S.H. and J.H. filed a motion for leave to conduct
the deposition of Lisa Tamburri, the vice-principal and HIB investigator. 	On May 13,
2024, the Board filed opposition. On May 31, 2024, I denied the motion.

OAL DKT. NO. EDU 10052-23
3
On July 11, 2024, S.H. and J.H.’s counsel raised another discovery issue and
submitted a joint request with opposing counsel to adjourn the July hearing dates.
I held three more pre-hearing conferences on July 18, 2024, July 26, 2024, and
August 13, 2024. On August 13, 2024, counsel confirmed they resolved their discovery
disputes. The Board’s attorney then requested and was granted the opportunity to file a
motion for summary decision.
On October 1, 2024, the Board filed its motion for summary decision. 	On
November 1, 2024, S.H. and J.H. filed their opposition. 	On November 11, 2024, the
Board filed its reply, and I closed the record.
FINDINGS OF FACT
Based on the documents submitted by the parties, I FIND the following as FACT
for purposes of this motion only:
The West Essex Regional School District is a regional, public school district
serving students in seventh through twelfth grade from municipalities in Essex County,
New Jersey. 	G.H. was a seventh-grade student at West Essex Middle School during
the times relevant to this appeal.
In or about January 2023, parents of a West Essex Middle School student filed a
HIB Reporting Form, which stated that their child “has explained that ‘so many people’
call black students ‘monkeys’ and . . . [t]his contributes heavily to [their child’s] view that
th[e] school is not a safe space . . . ” (R-2.)
On or about January 31, 2023, Lisa Tamburri, the Vice Principal and HIB
Investigator for West Essex, interviewed the child, and the child identified the victim.
(R-2.)
On or about February 7, 2023, Tamburri interviewed the victim. (R-2.) According
to Tamburri’s report, the victim, who is black, stated that G.H. called her a monkey in

OAL DKT. NO. EDU 10052-23
4
the hallways. 	(R-2.) 	Also, according to the report, the victim stated that she was
targeted “because of my race” and “when I come to school, I feel uncomfortable
because of the names I’m called.” (R-2.)
On February 13, 2023, the school notified S.H. and J.H. that G.H. may have
committed HIB. 	(R-2.) 	The school likewise informed them that the allegations will be
investigated. (R-2.)
Two days later, on February 15, 2023, Tamburri interviewed G.H. 	(R-2, R-5.)
G.H. admitted to calling the victim a monkey in the hallway outside of a classroom. 	(R-
1, R-2.)
Later that same day, February 15, 2023, S.H. and J.H. filed their own HIB
Reporting Form alleging that G.H. was a victim of HIB. (R-4.) 	However, that allegation
had nothing to do with this case. 	G.H. claimed that four or five months prior, a male
student called him names like “fat ass,” “unathletic,” and “ugly” during gym class. (R-8.)
After investigating, Tamburri concluded, and the Board agreed, that G.H. was not a
victim of HIB. (R-8, R-9.) S.H. and J.H. did not appeal that finding. (R-1.)
With respect to this appeal, S.H. and J.H. admit that their son, G.H., called a
black student a monkey. 	S.H. and J.H.’s petition states that G.H. “used a racial epithet
toward her…in the hallway,” but “th[e] comment was made directly in response to that
student first calling [G.H.] a terrorist.” 	(R-1.) 	S.H. and J.H. also admitted at the West
Essex Board of Education hearing that G.H. called the victim a monkey. 	(R-9.) 	Again,
they claimed that this was after the victim called G.H. a terrorist. 	(R-9.) 	No one –
neither G.H., S.H., nor J.H. – reported HIB for the alleged terrorist comment.
CONCLUSIONS OF LAW
Anti-Bullying Bill of Rights Act

OAL DKT. NO. EDU 10052-23
5
The 	Anti-Bullying 	Bill 	of 	Rights 	Act 	(ABRA), N.J.S.A. 	18A:37-13 	et seq., 	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). There
are essentially four elements of HIB under ABRA. 	Regarding the first three elements,
the conduct must: 	(1) be reasonably perceived as motivated by an actual or perceived
enumerated characteristic, such as race, or other distinguishing characteristic; (2) take
place on school property (or a school-sponsored function, school bus, etc.); and (3)
substantially disrupt or interfere with the orderly operation of the school or the rights of
other students. N.J.S.A. 18A:37-14. The fourth element, which focuses on the effect of
the conduct, may be any one of the following: 	(a) a reasonable person should know,
under the circumstances, the conduct 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) the conduct has the effect of insulting or demeaning any student or group of
students; or, (c) the conduct 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. Id.
In this case, all elements of HIB have been met. 	Regarding the first two
elements, G.H. admittedly used a racial slur toward a black student outside of a
classroom. 	Thus, he committed a verbal act reasonably perceived as being motivated
by race on school property.
S.H. 	and 	J.H. 	dispute 	that 	the 	slur 	was 	“reasonably 	perceived” 	as 	being
motivated by race. 	They argue that a trial is needed to determine the context of G.H.’s
comment and “how the alleged victim perceived G.H.’s motivation.” 	Yet, the first
element of HIB under ABRA does not ask how the victim perceived the conduct; rather,
it asks how it is “reasonably” perceived. 	Indeed, the Commissioner has expressly
rejected 	a 	purely 	subjective 	standard 	of 	reasonableness 	in 	favor 	of 	“a 	standard
reasonableness determination common in many types of adjudications.” Wehbeh v. Bd.
of Educ. of the Twp. Of Verona, 2020 N.J. AGEN LEXIS 50, at *5 (February 4, 2020).
Under a standard reasonableness determination, the unavoidable conclusion is that the

OAL DKT. NO. EDU 10052-23
6
victim in this case was called a monkey because of her race. Primate rhetoric has been
used to intimidate African Americans throughout our country’s history, and monkey
imagery has been significant in racial harassment. 	See Green v. Franklin Nat’l Bank of
Minneapolis, 459 F.3d 903 (8th Cir. 2006) (citing Morgan v. McDonough, 540 F.2d 527,
531 (1st Cir.1976) (in a school desegregation case, Caucasian students harassed
African American students by chanting “assassinate the nigger apes”)).
The third element of HIB (the conduct must substantially disrupt or interfere with
the orderly operation of the school or the rights of other students) has also been met.
Certain kinds of name calling – like racial slurs – will be especially likely to disrupt.
Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 264 (3d Cir. 2002).
Additionally, when other students are “so affected” by behavior that they report it, the
orderly operation of the school may be substantially disrupted. 	T.R. and T.R. on behalf
of E.R. v. Bridgewater-Raritan Reg’l Bd. of Educ., EDU 10208-13, Initial Decision
(September 	25, 	2014), 	<http://njlaw.rutgers.edu/collections/oal/>, 	adopted, 	Comm’r
(November 10, 2014). 	In this case, another child was “so affected” by black children
being called monkeys that her parents reported it to the school.
S.H. and J.H. argue that the reporting child’s statement is hearsay, and she did
not necessarily witness G.H. calling a black child a monkey. (In other words, she may
have witnessed other students, not G.H. himself, using the word.) 	However, these
arguments are futile given the legal standard, described in more detail below, that is
applied in these cases: arbitrary, capricious or unreasonable. Even if the reporting child
did not witness G.H. using the word, once G.H. admitted it, the school was not acting
arbitrarily when it found that G.H. committed HIB. 	Furthermore, the reporting child’s
statement may be considered for non-hearsay purposes insofar as it does not matter
whether the statement was true or not. 	It only matters that the statement was made,
and there is no dispute about this: the school indeed received a HIB form alleging “‘so
many people’ call black students ‘monkeys.’”1 	(R-2.) 	Whether the allegation was true
1 In their brief, petitioners “agree” that the form was submitted and that it included the statement in question. Yet,
despite agreeing to this important fact, they raise an objection as to the form’s authenticity. The objection is without
merit. Petitioners provide no basis whatsoever for challenging the document’s authenticity, and under N.J.A.C. 1:1-
15.6, the form is presumed authentic. It is only where a genuine question of authenticity is raised that the judge may
require some authentication of the questioned document. Again, no genuine question has been presented.

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or not, once the report was filed, the school was required to investigate; and, upon
investigation, G.H. admitted to calling a black student a monkey. 	In sum, it was not
arbitrary for the school to find disruption when it had received a report from a bystander
about the very same offense that G.H. admittedly committed.
Regarding the fourth element, a reasonable person should know that calling a
black student a monkey will have the effect of emotionally harming the student.
Whether G.H. himself knew it is irrelevant. 	The Commissioner has confirmed that this
last criterion does not require the actor to have actual knowledge of the effect that his
actions will have, or to specifically intend to bring about that effect. 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.” Wehbeh, 2020 N.J. AGEN LEXIS at *6.
In a similar case, the Commissioner of Education adopted a finding of HIB. 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), 	<http://njlaw.rutgers.edu/collections/oal/>, adopted,
Comm’r (April 10, 2014). 	In that case, an Administrative Law Judge (ALJ) upheld the
Board’s finding that a white student who repeatedly called a black student “Kool-Aid”
engaged in HIB. The ALJ found that the “use of the word ‘Kool-Aid’ was directed at [the
victim] because of his race; insulted and demeaned [the victim]; and . . . interfered with
[the 	victim’s] education” 	because 	“[u]pset and embarrassed 	children 	are 	not 	fully
available for learning.” Id.
In another similar case, the Commissioner adopted a finding of HIB on a motion
for summary decision. 	H.P. obo R.S. v. Borough of Tenafly Bd. of Educ., EDU 07170-
23, 	Initial 	Decision 	(January 	24, 	2024), 	adopted, 	Comm’r 	(March 	26, 	2024),
<http://njlaw.rutgers.edu/collections/oal/>. 	In that case, a ninth-grade girl, S.S., and a
ninth-grade boy, R.S., were messaging each other on Instagram. 	S.S. made negative
comments 	to 	R.S. 	about 	his 	soccer 	skills, 	and 	R.S. 	responded 	with 	antisemitic
comments. 	The Board found that R.S. committed HIB. 	R.S. argued that the exchange
was mutual conflict. 	The ALJ found that the Board’s decision was not arbitrary,
capricious, or unreasonable and explained: “petitioner cannot negate his conduct by
belatedly claiming that the victim’s retorts subjected him to HIB. 	He is free to make an

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independent HIB complaint, but [he] did not do so.” 	Id.; see also W.M. obo J.M. v.
Bedminster Twp. Bd. of Ed., EDU 07337-19, Initial Decision (Dec. 15, 2022), adopted,
Comm’r (Mar. 7, 2023), <http://njlaw.rutgers.edu/collections/oal/> (the Commissioner
held, “[i]t is irrelevant to the determination in this matter whether [the victim] participated
in trash-talking or whether [the accused] was joking; the HIB definition does not
consider the accused’s intent”).
Likewise, in this case, G.H. cannot negate his conduct by blaming the victim for
making an offensive remark. G.H. was free to make his own HIB complaint against the
victim, but he did not do so, despite knowing how to file such a complaint. 	Indeed, on
the very day Tamburri interviewed G.H. about calling the victim a monkey, his parents
filed a HIB complaint about a totally different student and altercation that happened four
or five months prior. G.H. or his parents never filed a HIB complaint against this victim.
Thus, he cannot belatedly use her alleged insult to justify his use of a racial epithet
toward her. 	G.H. also cannot use the excuse that he was joking, as the HIB definition
does not consider the accused’s intent.
Summary Decision
Under N.J.A.C. 1:1-12.5(b), summary decision may be rendered if the papers
and discovery, which have been filed, together with the affidavits, if any, show that there
is no genuine issue as to any material fact challenged and the moving party is entitled to
prevail as a matter of law. 	The standard is substantially the same as that governing a
motion under Rule 4:46-2 for summary judgment in civil litigation. 	Contini v. Bd. of
Educ. of Newark, 286 N.J. Super. 106, 121 (App. Div. 1995). 	The non-moving party
must do more than “point to any fact in dispute” to defeat summary judgment. 	Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995). 	As Justice Coleman noted in
Brill, if the party opposing summary judgment “offers…only facts which are immaterial or
of an insubstantial nature…or merely suspicious,” he will not be heard to complain if the
court grants summary judgment. Id.
In this case, there is no genuine issue as to any material fact. The material facts
are that G.H. called a black student a racial epithet in the hallways of West Essex

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Middle School; parents of another student complained of this same behavior happening
at the school; and the school determined that HIB occurred. 	All of these facts are
undisputed, and all other facts are immaterial. For instance, it is irrelevant that Tamburri
allegedly failed to properly investigate G.H.’s own HIB complaint. 	That was a separate
incident that had nothing to do with the victim in this case, and S.H. and J.H. did not
appeal that decision. 	As such, the allegations raised with respect to G.H.’s HIB
complaint are insubstantial or “merely suspicious.” See Brill, 142 N.J. at 529.
The motion court considering summary judgment cannot ignore the elements of
the cause of action or the evidential standard governing the cause of action. 	Bhagat v.
Bhagat, 217 N.J. 22, 38 (2014). The motion court must analyze the record in light of the
substantive standard and burden of proof that a factfinder would apply in the event that
the case was tried. 	Id. at 40. 	The court’s task is to determine whether a rational
factfinder 	could 	resolve 	the dispute 	in 	favor 	of 	the 	non-moving 	party. 	Perez 	v.
Professionally Green, 215 N.J. 388, 405-06 (2013).
In this case, the legal standard is arbitrary, capricious or unreasonable: “When [a
board of education] acts within its authority, its decision is entitled to a presumption of
correctness and will not be upset unless there is an affirmative showing that such
decision was arbitrary, capricious or unreasonable.” 	Thomas v. Morris Twp. Bd. of
Educ., 89 N.J. Super. 327, 332 (App. Div. 1965). 	The scope of the Commissioner's
review is "not to substitute his judgment for that of those who made the evaluation but to
determine whether they had a reasonable basis for their conclusions." 	Kopera v. West
Orange Bd. of Educ., 60 N.J. Super. 288, 296 (App. Div. 1960). 	"Where 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. Dept. of Envt'l. Protection, 122 N.J. Super.
184, 199-200 (Ch. Div. 1973).
Given the undisputed material facts of this case – including and especially G.H.’s
use of a racial epithet toward a black child in school – it simply cannot be said that the
Board’s 	HIB 	finding 	was 	arbitrary, 	capricious, 	or 	unreasonable. 	Therefore, 	I
CONCLUDE that the Board is entitled to summary decision as a matter of law.

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ORDER
Based on the foregoing, I ORDER that the Board’s motion for summary decision
is GRANTED and S.H. and J.H.’s petition is dismissed.
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 case. 	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 becomes a
final decision under N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision is 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.
December 30, 2024 	________________________________
DATE 	ANDREA PERRY VILLANI, ALJ
Date Received at Agency: 	December 30, 2024
Date Mailed to Parties: 	December 30, 2024
sej

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APPENDIX
DOCUMENTS RELIED ON:
Respondent’s October 1, 2024 Motion for Summary Decision
Exhibit R-1 	S.H. and J.H.’s Petition
Exhibit R-2 	West Essex HIB Report, HIB Reporting Form, Letters to
Parents, 	Interview 	Information 	Statement, 	Offender
Questions & Investigation Questions
Exhibit R-3 	Letter, Incident Report & Email re: G.H.’s Suspension
Exhibit R-4 	Email from J.H. with G.H.’s HIB Complaint
Exhibit R-5 	Emails from Lisa Tamburri
Exhibit R-6 	Duplicate of R-4
Exhibit R-7 	Emails re: G.H.’s Suspension
Exhibit R-8 	West Essex HIB Report re: G.H.’s HIB Complaint
Exhibit R-9 	Board’s Decisions
Petitioners’ November 1, 2024 Opposition to Motion for Summary Decision
Respondent’s December 1, 2024 Reply