L.K. and T.K., on behalf of minor child, A.K. v. Board of Education of the Township of Mansfield, Burlington County, 4/22/19, (#107-19)

New Jersey Commissioner of Education
Final Decision
L.K. and T.K., on behalf of minor child, A.K.,
Petitioner,
v.
Board of Education of the Township of Mansfield,
Burlington County,
Respondent.
Synopsis
Petitioners challenged the determination of the respondent Board that their daughter, A.K., committed an
act of harassment, intimidation or bullying (HIB) against an elementary school classmate, N.V., pursuant
to the New Jersey Anti-Bullying Bill of Rights Act (the Act), N.J.S.A. 18A:37-13 et seq. 	Petitioners
sought a determination that the Board’s decision was arbitrary, capricious or unreasonable, and requested
the removal of the HIB finding from A.K.’s student records. The Board contended that its actions were in
compliance with the requirements of the Act, and that the HIB investigation was conducted properly. The
parties filed cross motions for summary decision.
The ALJ determined that summary decision was not appropriate in this case, as there were material facts
in dispute; the legal issues for determination were whether petitioners received adequate procedural due
process, and whether petitioners could prove by a preponderance of credible evidence that the Board’s
determination of HIB was arbitrary, capricious or unreasonable. The ALJ found, inter alia, that: the HIB
investigation conducted by the school district was not thorough and complete; despite that, petitioners
were provided adequate due process, and failed to meet their burden to prove otherwise; `the
superintendent violated statute and policy by failing to provide A.K.’s parents with information regarding
the nature of the investigation; the Board’s decision herein was arbitrary, capricious and unreasonable
because the superintendent misstated the law when he directed the Board not to consider A.K.’s age in
their determination of HIB; A.K. did not know, nor should have known, that her conduct would have the
effect of harming a student, and did not substantially disrupt or interfere with the orderly operation of the
school or the rights of other students; and although the Board decision was not made in bad faith, the
decision relied on faulty information. The ALJ concluded that A.K.’s conduct did not meet the statutory
definition of HIB, and petitioners proved by a preponderance of evidence that the Board’s actions were
arbitrary, capricious and unreasonable; the ALJ ordered the Board’s decision reversed and the finding of
HIB removed from A.K.’s student file.
Upon review, the Commissioner disagreed with the AlJ’s findings and rejected the ALJ’s determination.
In so doing, the Commissioner found, inter alia, that: petitioners did not meet their burden of proof to
show that the HIB determination was arbitrary, capricious or unreasonable; A.K.’s conduct was clearly
motivated by N.V.’s gender identity and expression; and, although the Commissioner is mindful of A.K.’s
young age at the time of the incidents, A.K. should have known that her persistent conduct was causing
N.V. emotional harm as she was repeatedly counselled that her behavior was not appropriate.
Accordingly, the Initial Decision was rejected and the petition was dismissed with prejudice.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has been
neither reviewed nor approved by the Commissioner.
April 22, 2019
107-19

OAL Dkt. No. EDU 07067-16
Agency Dkt. No. 82-3/16
New Jersey Commissioner of Education
Final Decision
L.K. and T.K., on behalf of minor child, A.K.,
Petitioner,
v.
Board 	of 	Education 	of 	the 	Township 	of
Mansfield, Burlington County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed. 	The parties’ exceptions and replies thereto, filed pursuant to
N.J.A.C. 1:1-18.4, have also been reviewed and considered by the Commissioner.1 	In this case, the
petitioners are challenging the Board’s determination that their minor child, A.K., committed an act
of Harassment, Intimidation, and Bullying (HIB) pursuant to the Anti-Bullying Bill of Rights Act
(the Act), N.J.S.A. 18A:37-13 et seq., towards her classmate, N.V.2 	Following a hearing in this
matter, the Administrative Law Judge (ALJ) concluded that the conduct did not meet the statutory
1 The Parties’ sur-replies and subsequent correspondence were not considered by the Commissioner, as
such documents do not meet the criteria in N.J.A.C. 1:1-18.4; moreover, the parties failed to obtain
permission from the Commissioner prior to submitting any additional documents for the Commissioner’s
review.
2 The use of N.V. in this decision is based on the initials used in the record. 	For the purposes of this
decision, “N.” represents N.V.’s preferred name. The record further uses male gender pronouns when
referencing N.V.; therefore, this decision will do the same. The Commissioner notes that N.V. is a gender
nonconforming student who was assigned “male” at birth. The record reflects that N.V. dresses in clothes
that are typically associated with the female gender and prefers to be called by a name typically
associated with the female gender.

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definition of HIB and that the Board acted in an arbitrary, capricious, or unreasonable manner when
it determined that an incident of HIB had occurred.
Upon a comprehensive review of the record, the Commissioner disagrees with the
ALJ’s 	findings 	and 	rejects 	the 	ALJ’s 	determination 	for 	the 	reasons 	set 	forth 	below. 	The
Commissioner restores the Board’s finding of HIB, mindful of the standard of review of such matters
and the deference granted to a board of education’s determination. 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.” See Kopera v. W. Orange Bd. of Educ., 60
N.J. Super. 288 (App. Div. 1960). 	Furthermore, “where there is room for two opinions, action is
not arbitrary or capricious when exercised honestly and upon due consideration[,]” and the
Commissioner will not substitute his judgment for that of the board. 	Bayshore Sewerage Co. v.
Dep’t. of Envtl. Prot., 131 N.J. Super. 37 (App. Div. 1974).
Here, the petitioners had the burden of proving by a preponderance of the evidence that
the Board acted in an arbitrary, capricious, or unreasonable manner in rendering its HIB determination.
See T.B.M on behalf of M.M. v. Moorestown Board of Education, OAL Dkt. No. EDU 12780-07, decided
February 6, 2008 (citing Thomas v. Morris Township Board of Education, 89 N.J. Super. 327, 332 (App.
Div. 1965), aff’d 46 N.J. 581 (1966)), adopted Commissioner Decision No. 157-14, April 7, 2008. Based
on the evidence in the record, including the transcripts of the hearing at the OAL, the Commissioner finds
that the petitioners did not meet their burden.
Pursuant to N.J.S.A. 18A:37-14, harassment, intimidation and bullying is defined 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

3
school bus, or off school grounds as provided for in section 16 of P.L. 2010, c.122 (C.18A:37-15.3), that
substantially disrupts or interferes with the orderly operation of the school or the rights of other students
and that:
a. a reasonable person should know, under the circumstances, will have the effect of
physically or emotionally harming a student or damaging the student's property, or
placing a student in reasonable fear of physical or emotional harm to his person or
damage to his property;
b. has the effect of insulting or demeaning any student or group of students; or
c. creates a hostile educational environment for the student by interfering with a student's
education or by severely or pervasively causing physical or emotional harm to the
student.
In the instant case, A.K. admitted that she repeatedly questioned N.V. and made comments to him
about his name, his hair, and the clothing that he wore. A.K. persisted despite warnings from school
staff that such remarks were unacceptable, and instructions from her mother to discontinue such
queries.3 In addition to her harassment of N.V., A.K. threatened N.V. regarding his reporting of her
behavior, which was verified by N.V. during the course of the HIB investigation. It is clear from the
record that A.K.’s behavior was motivated by N.V.’s gender identity and expression. Moreover,
A.K.’s conduct took place on the school bus and on school grounds, and consequently interfered with
N.V.’s rights and the rights of other students. In fact, for a period of time, N.V.’s parent drove him to
school because he did not want to ride on the same bus as A.K. A.K.’s behavior was not only
demeaning to N.V., but also caused him emotional harm and created a hostile educational
environment.4 Although the Commissioner is mindful that A.K. was only seven years old at the time
3 T.K.’s testimony also detailed her efforts to address with A.K. the incident(s) and the differences among
individuals with regard to their gender identities and expressions.
4 Petitioners’ exceptions substantially recast the arguments made below and reiterate their claim that the
Board violated A.K.’s due process rights. A review of the record and the determination set forth in the
Initial Decision pertaining to petitioners’ due process claims reveal that the Board followed the
procedures set forth in the Act and in its policy. The procedures set forth in the Act are sufficient to allow
all parties involved adequate notice and due process of the law. 	Petitioners seek to expand the
investigatory process and the HIB determination procedures to mirror discovery and trial-like adversarial
proceedings, which is not the intent of the Act. The Commissioner is, therefore, unpersuaded by
petitioners’ exceptions.

4
of the incidents,5 the Commissioner finds that she should have known that her persistent conduct was
causing emotional harm to N.V. given that she was repeatedly counselled that her behavior was not
appropriate. 	Therefore, the Board’s determination that A.K. committed an act of HIB was not
arbitrary, capricious or unreasonable.
Accordingly, the Initial Decision is rejected and the petition of appeal is hereby
dismissed with prejudice.
IT IS SO ORDERED.6
COMMISSIONER OF EDUCATION
Date of Decision: 	April 22, 2019
Date of Mailing: 	April 22, 2019
5 It should be noted that A.K. received an age appropriate consequence for her conduct, which included
additional counseling and one recess detention.
6 This decision may be appealed to the Superior Court, Appellate Division, pursuant to P.L. 2008, c. 36
(N.J.S.A. 18A:6-9.1).

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 7067-16
AGENCY DKT. NO. 82-3/16
L.K. AND T.K. ON BEHALF OF MINOR
CHILD, A.K.,
Petitioners,
v.
BOARD OF EDUCATION OF THE
TOWNSHIP OF MANSFIELD,
BURLINGTON COUNTY,
Respondent.
____________________________________
David R. Giles, Esq., for petitioners
Casey P. Acker, Esq., for respondent (Lenox, Socey, Formidoni, Giordano,
Cooley, Lang and Casey, LLP, attorneys)
Record Closed: April 16, 2018 	Decided: January 22, 2019
BEFORE LISA JAMES-BEAVERS, Acting Director and Chief ALJ:
STATEMENT OF THE CASE
Petitioners 	L.K. 	and 	T.K. 	appeal 	respondent 	Mansfield 	Township 	Board 	of
Education’s 	(the 	Board) 	finding 	that 	their 	daughter, 	A.K., 	committed 	an 	act 	of

OAL DKT. NO. EDU 7067-16
2
harassment, intimidation, or bullying (HIB), N.J.S.A. 18A:37-13 et seq. Petitioners seek
a determination that the Board’s decision was arbitrary, capricious, or unreasonable.
The Board seeks affirmance of its decision based on the findings of an investigation.
PROCEDURAL HISTORY
By 	way 	of 	petition 	dated 	March 	14, 	2016, 	petitioners 	sought 	to 	have 	the
Commissioner of Education (Commissioner) remove the HIB determination from A.K.’s
student records. 	Petitioners filed an Amended Petition on or about March 28, 2016.
Respondent filed an answer on May 3, 2016. 	On May 5, 2016, respondent filed an
answer 	to 	the 	amended 	petition. 	The 	matter 	was 	transmitted 	to 	the 	Office 	of
Administrative Law (OAL) as a contested case pursuant to N.J.S.A. 52:14B-1 to -15 and
N.J.S.A. 52:14F-1 to -13. It was filed at the OAL on May 9, 2016.
On September 7, 2016, respondent moved for summary decision pursuant to
N.J.A.C. 	1:1-12.5. 	Petitioners 	filed 	an 	opposition 	and 	cross-motion for 	summary
decision on October 11, 2016, and an amended brief was submitted on October 12,
2016. Respondent replied on October 27, 2016. Oral argument was held on January 3,
2017. 	On March 6, 2017, I issued an Order denying the motion and the cross-motion
for summary decision due to there being facts in dispute. 	A hearing was scheduled for
September 18 and 19, 2017. 	I heard the case on September 18, 2017; however,
petitioners were not able to complete their case, and their next witness was unavailable
for the second scheduled hearing date of September 19, 2017. 	New hearing dates
were scheduled for September 26, October 11, and November 15, 2017, and February
14, 2018. 	The record closed after receipt of petitioners’ 118-page written summation
and respondent’s summation on April 16, 2018.
Pursuant to my Order denying summary decision, the issues on which there was
a material factual dispute that needed resolution at hearing were: 	1) What process
were the petitioners afforded with regard to their right to a hearing; and 2) What
evidence did respondent consider in making its HIB determination? 	The legal issue is
whether petitioners received adequate procedural due process as afforded by the HIB
statute. Last, the ultimate issue is whether petitioners can prove by a preponderance of

OAL DKT. NO. EDU 7067-16
3
the credible evidence in the record that the Board’s decision was arbitrary, capricious,
or unreasonable.
STIPULATED FACTS
1) 	Petitioners’ minor child, A.K., was a student at the Mansfield Township
Board of Education’s (Board) John Hydock Elementary School (JHES) during the
2015–2016 school year;
2) 	On September 29, 2015, an incident occurred on the morning school bus
involving students A.K. and N.V. (“the incident”);
3) 	As a result of the incident, an investigation into harassment, intimidation,
or bullying (HIB) was conducted by JHES anti-bullying specialist (ABS) Cheryl
Strickland and JHES principal Stacy Cullari;
4) 	Petitioners were notified of the HIB investigation;
5) 	An HIB report (“HIB report”) was rendered, which found a confirmed
incident of bullying by A.K. against N.V.;
6) 	The HIB report was submitted to the superintendent of the Mansfield
Township School District, Tiffany Moutis;
7) 	During executive session on October 19, 2015, Moutis shared with the
Board the HIB report, and the HIB report and incident were discussed;
8) 	The Board approved the HIB finding from the HIB report;
9) 	Petitioners were notified that the Board approved the HIB finding from the
HIB report;
10) 	Petitioners were provided with a summary of the HIB investigation;

OAL DKT. NO. EDU 7067-16
4
11) 	Petitioners requested a hearing before the Mansfield Board to appeal the
approval of the HIB finding;
12) 	The appeal hearing was initially scheduled for November 9, 2015, and,
with the consent of petitioners, rescheduled for November 16, 2015;
13) 	The appeal hearing was placed on the agenda of the November 16, 2015,
Board meeting;
14) 	Petitioners’ appeal was heard by the Board in executive session at the
November 16, 2015, Board meeting;
15) 	At its December 14, 2015, meeting, the Board, in public session, approved
a resolution to affirm the superintendent’s decision, “John Hydock Elementary
School HIB case #1”; and
16) 	Petitioners were notified of the Board’s decision on their HIB appeal by
way of letter dated December 15, 2015.
Additional Stipulations of Fact were also submitted:
1) 	Prior to the hearing, petitioners, through counsel, requested that the Board
produce records in its possession that would have included any notes related to
the investigation of the HIB complaint against A.K. (“HIB complaint”) and related
meetings or hearings before the Board.
2) 	The 	Board 	produced 	some 	notes 	in 	response 	to 	that 	request, 	but
handwritten notes taken by Cheryl Strickland and Stacy Cullari, respectively,
during their investigation of the HIB complaint were not identified or produced
prior to the hearing in this matter before the OAL (“the hearing”).

OAL DKT. NO. EDU 7067-16
5
3) 	During 	their 	testimony 	during 	the 	hearing, 	Strickland 	and 	Cullari,
respectively, stated that they had taken such notes and that they had provided
them to the Board in response to a records request from the petitioners.
4) 	Thereafter, petitioners’ counsel requested copies of those notes.
5) 	Neither the Board nor Cullari has a copy of her notes or knows what
happened to them.
6) 	The Board did produce on October 5, 2017, a copy of notes which it has
identified as all of Cheryl Strickland’s handwritten notes related to the HIB
investigation in the possession of the Board. 	A copy of those notes has been
admitted into evidence in the hearing as Exhibit J-28.
7) 	Although Brett Gorman testified that he believed that the Board’s business
administrator would have taken “meeting notes” for the meeting minutes of
executive sessions, Joyce Goode, the Board’s business administrator who was
present during the executive sessions of October 19, 2015, and November 16,
2015, and during the November 16, 2015, HIB hearing, does not recall taking any
notes during those sessions or hearing, and neither she nor the Board has a
copy of any such notes.
8) 	During her testimony, Alison Perrone stated that among other things she
reviewed in preparing to testify during the hearing were notes that she had
written on a copy of the agenda during the executive session of the Board held
on October 19, 2015.
9) 	Thereafter, petitioners’ counsel requested a copy of those notes, but
Perrone can no longer locate them and the Board does not have a copy of them.
10) 	By stipulation to the above facts, the Board does not admit that any of the
notes referenced above are “government records” within the meaning of the

OAL DKT. NO. EDU 7067-16
6
Open Public Records Act (OPRA), or that there is any legal obligation for such
handwritten notes to be maintained by a school district.
11) 	Petitioners acknowledge that it is the position of the Board that none of the
notes referenced above are “government records” within the meaning of OPRA,
and there is no legal obligation for such handwritten notes to be maintained by a
school district.
12) 	Petitioners also agree that nothing in the above stipulations or the fact that
the Board disclosed the mentioned notes may be used to imply or suggest that
the Board concedes that such notes are “government records” or that it was
legally obligated to maintain them.
FACTUAL DISCUSSION
Testimony
T.K.
Petitioner T.K., mother of A.K., testified that A.K. was seven years old at the time
of this incident. 	T.K. has another child, who is two years younger. 	T.K. is a self-
employed board-certified behavior analyst (BCBA) who works in homes for families.
She has done so for nine years. 	She also has a teacher-of-the-handicapped certificate
and more than twenty years of experience in the school setting. Her husband, L.K., is a
federal officer with U.S. Customs. 	They moved to Columbus, New Jersey, in the
Mansfield School District in February 2015, and her children started attending school
there after Presidents’ Day.
A.K. was seven years old and in the first grade in Ms. Morse’s class in JHES with
approximately twenty other children. 	T.K. communicated regularly with Ms. Morse, met
with her, and emailed her. 	A.K. rode the bus to school every day. 	The typical school
bus had forty children on it. The bus driver was the only adult on the bus. 	T.K. did not

OAL DKT. NO. EDU 7067-16
7
hear of student N.V. during the first year of school. 	A.K. attended the second grade in
Ms. Papero’s class with approximately twenty other students.
A.K. is a girl who likes to dress up in fancy, nice clothes. Cheryl Strickland was a
guidance counselor at JHES during A.K.’s second-grade year. 	T.K. testified that she
received a call on September 29, 2015, at approximately 10:00 a.m. when she was
working at a school district. 	Ms. Strickland called to say that her daughter had a “little
situation” with a student. 	She explained that there is a student in A.K.’s school who
went by a male name last year but now wants to be called by a female name.7 	The
student now wears clothes associated with girls, and A.K. asked the student many times
why he8 does so, and he did not have an answer. 	When they got off the bus, both of
them were crying. 	The student was upset because A.K. kept asking, and A.K. was
upset because he was going to tell on her.
Ms. Strickland told T.K. that as far as she understood, the situation was worked
out. Ms. Strickland explained that it is “difficult for all of us,” and more so for a kid. T.K.
wanted mostly to talk to her daughter when she got home. 	She did not hear anything
else from the school that day. When T.K. spoke to A.K., A.K. did not know why she got
in trouble. 	T.K. talked to A.K. about differences, and told her there is a child who
dresses differently. 	She talked about the fact that he chooses to dress that way, and
A.K. still did not get it. She went out to look for books on the issue, because it was new,
and she was able to find children’s books about it. 	T.K. told her daughter not to ask
questions of that student anymore, but to talk to T.K. instead. 	They talked about his
name, and said that if he wants to be called by the girl’s name N3, then A.K. should call
him by that name. 	A.K. was very confused, even after they spent an hour on it. 	She
likes the student and just wants to be friends. 	He likes American Girl dolls as much as
she does and he likes to shop at Justice like she does.
A.K. has asked a lot of questions since she could talk. 	She perseverates about
anything in her life she does not understand. 	There was a child in her class who could
7 At the hearing, the parties agreed that to protect the identity of the student, we would use N3 to refer to
the student’s female name; N2 to refer to the old nickname; and N1 to refer to the name given at birth.
8 During testimony, T.K. referred to the alleged victim as “he” or “him,” so I am using that terminology in
summarizing her testimony.

OAL DKT. NO. EDU 7067-16
8
not talk and used an augmented-communication device. 	He had a teacher with him all
day long. She knew that the boy could not answer her, so she asked her mother about
it and had her questions answered. 	You must answer her or else the situation will
snowball.
When A.K. went to school the next day, nothing happened. 	T.K. found in her
daughter’s backpack a sheet of paper on which her daughter was trying to understand
that her friend now wants to be called N3 by writing the old name and then the new
name. 	(P-2.) 	A.K. is a visual learner, and that was her way of trying to understand, by
writing a note to herself. 	Ms. Strickland and principal Stacey Cullari had meetings with
A.K. to try to help her understand. 	Then, on October 1, 2015, T.K. heard from
Ms. Cullari that there was another incident with the student. 	Ms. Cullari said now she
needed to investigate it as an incident of HIB. 	Apparently something happened in the
lunchroom with A.K. and the student, but she did not make clear what A.K. had done.
Ms. 	Cullari 	said 	that 	they 	would 	have 	to 	go 	through 	the 	HIB 	process 	with 	an
investigation. 	A.K. was practically in tears and very upset and confused. 	Ms. Cullari
also said she already had given A.K. detention that day. When T.K. asked A.K. about it,
she immediately broke down crying. 	She had to spend a day in detention in the
principal’s office. 	A.K. told her that she did nothing, and was very confused. 	T.K.
wanted to get information from Ms. Cullari as to what exactly her daughter did. 	Ms.
Cullari told A.K. that she may be expelled, and A.K. asked what “expel” means. 	T.K.
tried to tell her, but did not know what to say. 	She did try to say that Ms. Cullari would
never do that, but A.K. still talks about it.
T.K. emailed Ms. Cullari after having spoken to A.K. 	A.K. denied having said
anything to the student, and she was upset that no one believed her. 	A.K. now hates
school. T.K. asked to know exactly what had happened, but was never told. Ms. Cullari
wrote her an e-mail reply, but did not answer her question. 	She basically said that
everything was okay, and that A.K. seemed okay as well.
T.K. tried several more times to get a response to her question as to what A.K.
did, but did not receive anything. 	She was just told that she would get a letter in the
mail on October 15, 2015. 	She researched everything regarding HIB—the laws,

OAL DKT. NO. EDU 7067-16
9
guidance from the Department of Education, and school guidance—and really thought
everything would remain the same regarding her daughter. When she received a letter
from Ms. Cullari in October, she questioned the written report that was submitted to the
Board. 	(J-8.) 	She still was not really concerned. 	On October 20, 2015, T.K. received
the letter from the District and the summary of the investigation. 	(J-17.) 	She was
shocked, based on all the previous calls with Ms. Cullari and Ms. Strickland, that A.K.
had been found guilty of HIB. 	The summary referenced only an incident date of
September 29, 2015. 	It relied on N3’s report that A.K. was mean to him. 	No one ever
said that A.K. had threatened N3, as he alleged. 	No one ever said that A.K. was being
mean to or teasing N3. 	A.K. admitted to asking questions, but does not see why that
was wrong. Apparently the threat was that A.K. said her parents are lawyers, and that if
N3 told on her, she would tell on him. 	As set forth above, neither parent is a lawyer.
A.K. admitted that she was asking him questions, and that it was difficult to call him by
his new name, but she still did not understand what she had done wrong. T.K. had also
never heard that A.K. had made fun of N3. 	The letter said that the investigation was
completed on October 13, 2015. 	T.K. had no idea what evidence the Board had
relevant to her daughter being found guilty of an HIB incident.
T.K. 	received 	the 	letter 	from 	Ms. 	Strickland 	and 	Dori 	Levy, 	anti-bullying
coordinator, informing her that the HIB investigation was presented to the Board on
October 19, 2015. Prior to that, she did not know that it had been reported to the Board.
(J-17.) 	Tiffany Moutis, superintendent, sent the report with the results of the HIB
investigation under separate letter dated October 20, 2015. 	It advised that they
concluded that an HIB incident had occurred. 	At that point, T.K. still did not know what
A.K. had done that was considered to be HIB. T.K. strongly disagreed, so she did more
investigation. 	She tried to reach out to Ms. Moutis, because she was completely
blindsided by the finding. She was supposed to have a meeting with the school staff for
them to give her information. However, she received a call from Ms. Moutis saying that
if she disagrees with the finding she has to appear before the Board. 	All Ms. Moutis
would say is that it is clear that it is HIB. 	T.K. requested a hearing after she tried
unsuccessfully a few more times to have a meeting with Ms. Moutis. She was given the
date of November 16, 2015, to appear before the Board. She expected that it would be
the time to get more information and ask questions. She put together a four-page set of

OAL DKT. NO. EDU 7067-16
10
notes, statements, and questions for the Board. 	She talked to the parents of A.K.’s
friends. 	She knew A.K. had trouble with new information, as well as trouble with her
social skills. 	What she heard from parents is that there are a lot of issues on the bus,
and that there were other students who picked on N3.
On November 16, 2015, the day of the scheduled hearing, Ms. Moutis introduced
herself to petitioners, as they had not met before. 	Mr. Gorman went into the meeting
with the Board members, along with Ms. Cullari, Ms. Strickland, and Ms. Levy, and
stayed approximately five minutes. 	Mr. Gorman then said that the petitioners could go
in and present to the Board. 	However, he said that they would not be allowed to ask
questions. 	T.K. was completely confused, as Ms. Moutis had said that they would get
their questions answered. She was a little upset, so she asked for some time to collect
herself before presenting to the Board. She had the statement she had prepared for the
hearing. (P-7.) She did not see anything, nor was she given anything, that was handed
to the Board. 	When she tried to ask when the alleged harassment was first reported,
Mr. Gorman answered for the Board, and no one else could respond. 	She asked how
the team determined that A.K.’s conduct was HIB, and Mr. Gorman gave the textbook
definition of HIB and not what A.K. did. 	Mr. Gorman talked over them. 	One of the
Board members asked if she thinks A.K. knew that what she said to N3 was mean. She
said, “No, I don’t believe she knew.” 	Ms. Strickland then jumped in and said she
disagrees, and that A.K. said that she knew it hurt N3 and she would try to be nicer.
T.K. said that A.K. was aware after all this had occurred that she had hurt N3, because
adults had told her that she had hurt him. 	Ms. Cullari tried to talk to T.K., and
Mr. Gorman said, “Please don’t say anything.” 	Ms. Cullari then said, “I wish I could tell
you.”
Petitioners were told at the end of the hearing that the Board would make a
decision at the next Board meeting, so they left and everyone else remained. 	At the
next Board meeting, the Board agreed to accept the superintendent’s recommendation.
Although there was miswording in the letter that the Board had not found an HIB
violation, T.K. knew that the HIB determination had been upheld. 	After that, T.K. made
an Open Public Records Act (OPRA) request to obtain more information, and the Board

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provided the records. 	(J-2.) 	She requested A.K.’s record and all the information
regarding the HIB investigation, including reports and notes.
A.K.’s current relationship with N3 is that they are in the same class, as well as
on the same bus. 	They play together and they are just typical students. 	A.K. is more
nervous and anxious and scared of doing anything wrong. 	N3 is allowed to bring a
friend to his counseling session, and invited A.K.
In the records, other children had reported that other kids were doing things to
N3. 	One student pushed him down on the bus and squeezed his hand really hard.
These things were left out of the summary. There were three separate versions of N3’s
mom’s report. 	Each one was modified, until the last one was just talking about A.K.,
and the comments about the other students were removed. 	None of the students
interviewed said that T.K.’s daughter was mean, or teased or bullied N3. 	Two of them
said N3 was being mean to A.K. She still has no idea how they looked at the witnesses’
reports and concluded that A.K. did something wrong. 	The other items were never
conveyed to the Board, as far as she knows. They were in neither the summary nor the
report from Strickland and Levy. When she reviewed N3’s mother’s email to the school
principal 	dated 	October 	5, 	2015 	(J-7), 	the 	concerns 	expressed 	were 	significantly
different than the concerns N3’s mother had expressed on September 29, 2015. 	She
never saw any more notes of interviews with A.K. 	She was never given another
opportunity to respond to the mother’s email. Also received in her OPRA response was
the HIB checklist that was filled out the day she got the call from Ms. Strickland,
September 29, 2015. 	Ms. Strickland never mentioned hurtful teasing, as noted on the
second page of the report. No one mentioned insulting remarks or threats. After having
read all of it, she does not believe A.K. did anything intentionally. 	The Bullying Incident
Report Form dated October 1, 2015 (J-3) indicates that things were done in a classroom
and playground that were never mentioned to her. 	She still did not see records
mentioning a demeaning comment that A.K. made to N3. 	There were no interviews of
teachers, or school staff, or the bus driver, or the aide. The very last page of the report
form asks why the harassment occurred, and the “other” box is checked, with a
handwritten note saying “gender identity.” 	A.K. has no idea what that is. 	T.K. went on

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to say that her husband became a member of the Mansfield Board of Education in
2016, and he had just recently resigned.
T.K. admitted that her daughter has told her things that she later found out were
not true but attributed that to her being a kid. She recalled that on September 23, 2015,
two parents informed her that her daughter was not very nice. 	(R-1.) 	She knows her
daughter has social issues, and she has numerous concerns for her daughter dating
back to infancy and childhood. 	The parents did not say she was mean, but said they
had to intervene due to conflicts. 	On September 29, 2015, Ms. Strickland told her the
reason why N3 was upset, and it was because of the conflict. When she spoke to A.K.
about differences, she believes A.K. understood in a broad sense. A.K. said she would
stop the conduct that was bothering N3. When she asked her daughter why she wrote
the handwritten note (P-2), A.K. said she wanted to remember to call her friend by the
preferred name, N3. On October 1, 2015, Ms. Cullari told her all about the HIB process
and investigation, but never specified what occurred that day. 	It was a twenty-four-
minute conversation. 	After the call with Ms. Cullari, she spoke to her daughter again.
However, she never got a number regarding how many times A.K. asked N3 why he
dressed as he did. 	Ms. Cullari did say that A.K. said something to N3 and mentioned
something about a threat made and that an investigation was to occur. 	The nature of
the threat was not clear, but there was a reference to the police. 	Her daughter denied
making any threat. 	Even though T.K. knew an investigation was going to be done, she
was still shocked that they found HIB.
T.K. believes that the summary gave new and different information than she had
been told, and she wanted to talk about it. Her daughter admitted to asking N3 why he
wore a dress, but denied that she was teasing him about it. 	T.K. never had her
questions answered as to what occurred on October 1, 2015. The only threat she heard
about was A.K. saying that her parents were lawyers, but she did not think that was
HIB. 	She was aware that when she went to the hearing she could bring evidence, but
she did not bring anything other than the documents set forth at Exhibit P-7. 	She
believes that the Board should have looked at environmental factors, developmental
age, and assessment of behavior. 	She brought with her literature consisting of the
Department of Education’s guidance to schools, but Mr. Gorman said it was not

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relevant. 	She left him a copy of the front page of it anyway. 	She did not have the
OPRA documents when she went to the hearing. 	She received them later. 	She
considered bringing her daughter, but decided against putting her through that. 	She
believed she was before the Board for at least a half hour. 	To this day, she still does
not know what investigation reports the Board considered. 	She also does not know
whether the investigation reports were presented to Ms. Cullari or Ms. Moutis.
Stacy Cullari
Stacy Cullari testified that she has been the principal of JHES since 2014, and
was supervisor of curriculum and instruction at the school in the year prior. Every year,
all staff must be trained in HIB.
On September 29, 2015, students came up to her in a frenzy as she greeted
students in the morning. 	Student N3 was upset because A.K. was teasing him on the
bus. 	Student A.K. was upset because N3 was going to tattle on her. 	She let Cheryl
Strickland, anti-bullying specialist, know what occurred. 	N3 said he liked Shopkins and
Monster High, and A.K. said, “you can’t like those things because you’re a boy.” 	Also,
N3 said he wanted to wear a dress on picture day, and A.K. said N3 can’t wear a dress
because he’s a boy. Ms. Cullari first spoke to the students individually, and then spoke
to them together in the presence of Ms. Strickland. 	N3 said A.K.’s remarks were
upsetting to him. 	A.K. disagreed, but did not recall exactly what she had said.
Ms. Strickland took the lead in the questioning. 	They had mediation, where they talked
about differences. 	A.K. seemed receptive, and said that she would stop her questions
and comments.
Ms. Cullari filled out an HIB checklist. 	She notified T.K. about the incident by
telephone. She also spoke to N3’s mother by phone. N3 was born a male. N3 dressed
mostly in female clothing and had pierced ears. N3’s mother was quite upset. She said
that there were prior incidents involving A.K. 	Ms. Cullari said that if she felt that it was
bullying, she had to put it in writing, which she did.

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14
Ms. Cullari believed that A.K. understood that her conduct made N3 upset. 	The
next day she spoke to other students and took their statements. 	On September 30,
2015, Ms. Cullari interviewed student J. 	N3 said that he and J. had arguments on the
bus, but they are friends. 	J.’s behavior did not seem to bother N3 the way A.K.’s did.
She next interviewed student M., who rode the same bus, and student W., who said that
the whole group had issues and could not get along. 	They are all second graders.
After the interviews, she believed that A.K. knew that what she did was wrong, because
she said she did not want N3 to tattle on her.
Ms. Cullari filled out the Bullying Incident Report Form (J-3), which then goes to
the superintendent. 	She selected “gender identity” as the distinguishing characteristic
for the report. 	She and Ms. Strickland conducted the investigation and completed the
report. 	On September 30, 2015, other students brought to her attention that A.K. was
continuing to bother N3 in the cafeteria. 	They said that A.K. was threatening that if N3
told on her, she would get her parents on N3. 	N3 confirmed that she said that. 	A.K.
denied that it happened. 	N3’s mother also reported that N3 told her it happened.
Ms. Cullari spoke to A.K.’s parents on October 1, 2015. 	She and Ms. Strickland
deemed it to be an HIB incident. Ms. Strickland authored the HIB report. (J-9.)
There were two ABS reports, one of which was read at the executive-session
meeting of the Board. 	The results of the investigation were presented to the Board.
The Board agreed that A.K. committed HIB, and a letter was sent to A.K.’s parents
advising of the Board’s decision. 	(J-16.) 	Ms. Cullari attended the appeal hearing, but
not the executive session where the investigation was presented to the Board. 	She
recalled T.K. reading a statement in response to questions.
Ms. Cullari stated that the evidence confirmed the HIB finding, in that the conduct
was based on distinguishing characteristics that created a hostile environment that had
an emotional effect on the student. 	A.K. knew that N3 was a boy dressing like a girl,
and created a hostile environment for N3 such that N3 was not comfortable riding the
bus any longer. 	Ms. Cullari testified that N3’s mother said that student J.T. said things
to N3 also, but N3 was not affected by the behavior of J.T. Ms. Cullari did not include in
her report N3’s references to being teased for liking Monster High and Shopkins and not

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15
being able to wear a dress for picture day. 	She believes that there has to be an intent
to harm, and believes that the intent occurred after A.K. was told to stop and she
continued. 	Although Ms. Cullari said that she spoke to N3’s mother on the day of the
incident, she seemed to already know about the incident with A.K. teasing N3 about
wanting to wear a dress to school pictures and being told to wear a suit. She explained
that it was not the only time. 	The cafeteria incident the next day convinced Ms. Cullari
that A.K. knew what she was doing.
Ms. Cullari did not talk to N3’s teachers, lunch aides, bus driver, or any adults.
She only talked to the students. Although student J. admitted to pushing N3 down, and
student M. said that student J. teases N3, saying that he is a boy and should not dress
like a girl, J. was not investigated for HIB because N3 did not seem to be affected by
J.’s behavior. The third student interviewed, W., said that N3 is mean to A.K., and A.K.
is not mean to N3. 	None of the other three students corroborated that A.K. was mean
to N3. 	Ms. Cullari did not believe M. and W. 	She has three versions of Ms. V.’s
statement, the last of which (in the order in the binder) removes any reference to the
conduct of J. (J-2.) Ms. Cullari does not know the order in which they were written.
There is no documentation of the threat in the cafeteria incident other than the
account by N3’s mother. 	“Students” reported it. 	Ms. Cullari did not respond to T.K.’s
request to be told exactly what the threat was that A.K. was said to have made. 	(J-6.)
She was in the process of conducting the investigation. 	She told T.K. that the
allegations were being investigated in a letter dated October 15, 2015, although the
investigation had already occurred. 	There was no HIB incident between A.K. and N3
after October 1, 2015. 	The one incident on September 29, 2015, would not constitute
HIB, and the only thing after that was A.K.’s threat. 	A.K. admitted to asking the
questions and having a hard time calling N3 by his female name.
Cheryl Strickland
Cheryl Strickland testified that she has been a school social worker in Mansfield
for ten years. She has been the anti-bullying specialist since the law came into effect in
2010. 	She was advised of the incident regarding A.K. and N3 by Ms. Cullari on

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September 29, 2015. 	She testified, similar to Ms. Cullari, that they met separately with
the students in Ms. Cullari’s office. N3 was very upset and said that he tried to get A.K.
to stop, but she would say things like he should not like Shopkins, and “you can’t dress
like a girl.” 	He said A.K. told him that if he tattles on her, her parents are lawyers and
they will take him to court, or some threat like that. 	When they interviewed A.K. she
seemed to understand that what she did was hurtful, but she told them that she did not
want to call N3 by his female name. They told her not to ask any more questions of N3.
They then called the students’ parents. 	N3’s mother thought her child was being
bullied. They told the parents of A.K. that they would be investigating.
Ms. Strickland and Ms. Cullari authored the report cooperatively. 	They then met
with other students, M. and W. 	N3 had said that these were the students who
witnessed the incident. W. said that there was difficulty with other students on the bus.
The next day there was another incident, where N3 said A.K. was harassing him
at lunch, and N3 was upset. 	A.K. was still bothering him, when she had agreed not to
do so anymore. 	A.K. also accused N3 of tattling on her and told other students. 	This
made him feel bad. When they spoke to A.K., she said she knew she was doing hurtful
things, and was trying to be better at saying nice things to N3.
Every year the district trains staff on HIB. 	Ms. Strickland concluded that the
incident met the criteria to be an HIB incident. 	When they prepared the Bullying
Incident Report Form (J-3), she thought the investigation was done, but the process
was still ongoing because they had not written the final summary yet. 	The form added
all the actions that were taken. 	They felt that gender identity was the distinguishing
characteristic upon which the bullying was based. 	Ms. V. wrote a letter to put her
concerns in writing, because they felt the parent’s point of view was important. A quote
from her letter was given to the superintendent. 	Ms. Strickland drafted the final
summary. 	(J-9.) 	When she initially met with the students on September 29, 2015, she
thought the incident could be an HIB incident based on the criteria and what the
students said. 	A.K. knew her actions could cause harm, and they caused a hostile
environment for N3. 	There were different versions of forms because the required
paperwork changed in the middle of the investigation. 	They used the summary to

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explain why she and Ms. Cullari felt it was an HIB case. 	The report went to the Board
for review. She was not at that Board meeting. She is required to make a professional
judgment based on the law, and that is what she did. 	Ms. V. said that N3 did not want
to take the bus anymore and felt bad. 	Even second graders have to understand the
rules.
She was asked to attend the executive session with petitioners in case there
were any questions. 	Petitioners were given the chance to ask questions and present
their case. 	She does not recall any specific questions asked. 	She believes that she
was asked questions and she answered them. The whole session was with petitioners,
so they were given more than just an opportunity to make a statement in the hour or
more that they were before the Board. 	She recalled answering questions of Board
members and petitioners.
Ms. Strickland admits to not being present when any of the incidents took place.
She does not have her notes from her meetings with the students. 	She used them to
make the summary. 	She disagrees that A.K. did not continue to bother N3 after they
talked on September 29. 	She bothered N3 and teased him. 	Students reported to the
teacher that A.K. was bothering N3 at lunch. The reason A.K. was concerned about N3
tattling was because she knew her behavior was wrong. 	There had been incidences of
conflict in the past between A.K. and N3, but nothing serious. 	The reason they did not
go after student J., who another student said pushed N3 down, was that N3 was not
bothered by J., but by A.K. N3 did not report anything about J. the way he reported the
things A.K. did. 	Ms. Strickland believes the investigation was completed by October 5,
2015. 	A.K. admitted asking questions about N3’s clothes and having trouble calling N3
by the female name, and admitted that she did not want to write the female name on her
paper.
Brett Gorman, Esq.
After debate on whether he should be allowed to testify, Brett Gorman testified
that he was an attorney from the firm of Parker McKay, which represented the Board in
2015. 	He recalled a meeting involving the petitioners having to do with an alleged HIB

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18
incident. 	Prior to the meeting before the Board on November 16, 2015, he recalled
taking the parents aside and explaining to them the ground rules as to what would take
place. 	They then went into the executive session for hearing. 	He told the petitioners
that they could not ask questions of the Board because the Board was there to make a
factual determination. 	He believes they did ask questions of the administration. 	He
recalled petitioners making a long presentation, and the Board discussing it for a long
time, as well. 	It was longer than the usual HIB hearing. 	Present at the meeting were
the 	principal, 	the 	anti-bullying 	specialist, 	the 	anti-bullying 	coordinator, 	and 	the
superintendent.
Mr. Gorman did not recall the petitioners being upset at what he told them. 	He
disputes telling them that they could not ask any questions. The parents’ argument was
that the child did not understand what she was saying when she made comments to N3.
They said that their child is young, so she was just inquisitive. 	He recalled the parents
asking questions of the principal, and the principal and the ABS answering. 	The
parents left when the hearing was over, and the Board continued to discuss the issue.
The Board then returned to public session.
Alison Perrone
Alison Perrone testified that she is a current Board member, who served in
November 2015. 	She has been an attorney since 1996. 	She recalled Ms. Moutis
presenting the HIB report at the closed session in October 2015. She recalled receiving
the report and reading it at the executive session. 	They did not get it before. 	She and
the Board members had received training on HIB prior to October 2015.
Ms. Perrone recalled the petitioners addressing the Board at their appeal, along
with Ms. Strickland and Ms. Cullari. 	She recalled Ms. Strickland responding to their
questions. 	The parents said that the alleged bullying incident occurred due to their
daughter’s 	curiosity. 	Ms. 	Cullari 	had 	an 	exchange 	with 	A.K.’s 	father 	regarding
conversations 	had 	with 	A.K. 	The 	parents 	were 	present 	in 	their 	meeting 	for
approximately thirty minutes, but she does not recall exactly how long. 	She knows that
the parents asked questions about the investigation and what had been done. After the

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parents left, the Board stayed in executive session for further discussion. 	They then
went to the public session and voted to uphold the determination of HIB. 	Ms. Perrone
believed that there was a distinguishing characteristic: 	the incident impacted N3 and it
caused emotional harm. She believed that the young age of A.K. was balanced with the
fact that the effects of her conduct had been explained to her and she had understood.
Ms. Perrone did not know at the time of the meeting who the involved students
were, but she did know by November. 	The mother of N3 became a member of the
Board as of October 2017. Ms. Moutis shared the entire chain of events with the Board.
The Board was told that A.K. persisted in making comments to N3 after the bus
incident. N3’s mother told the HIB investigators that the comments started the previous
year, and they continued and made N3 upset. 	N3 was visibly upset several times in
school. Ms. Perrone identified the HIB policy that was in effect until December 2015 (P-
10) and the HIB policy that is currently in effect (P-10a). 	The administrators explained
that after A.K. was told the comments upset N3, she continued to ask questions. 	It
would have been a factor if that were not true. 	The Board members were not provided
copies of the interviews, only the report of what N3, A.K., and N3’s mom said. 	The
mother conveyed the emotional harm inflicted on N3 and how upset he was, such that
he was unable to ride the bus any longer. 	Perrone was not aware that the parents did
not have the superintendent’s determination prior to the Board meeting. 	Ms. Moutis
talked to the Board prior to the parents’ entry into the meeting. When the parents were
there, they asked questions about the investigation.
Tiffany Moutis
Tiffany Moutis testified that she has been the superintendent for the Mansfield
School District for approximately two and a half years. Previously she was an assistant
superintendent in Kenilworth, and before that she spent nineteen years in the Union
School District as a teacher, supervisor, and curriculum director.
Ms. Moutis recalls that she came to know A.K. when she had a meeting with the
two 	building 	principals 	and 	Cheryl 	Strickland 	on 	or 	about 	September 	29, 	2015.
Ms. Strickland shared the details of the incident and the investigation. They showed her

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the district’s HIB forms. 	After the investigation, which she does not participate in, the
administrators submit a report, which she then submits to the Board. 	In the present
case, upon her receipt of the report, she read it, copied it, and placed it in the file for the
Board meeting on October 19, 2015. 	The report did not go home with Board members
in their packets. 	After reading the report, she thought it was very clear that there had
been an HIB incident based upon gender identity.
Ms. Moutis presented the report in the Board’s executive session. 	She does not
recall how long the executive session lasted, but there was a lot of discussion. 	She
wanted to make sure that everyone understood the process before voting. 	She gave
the members time to read the report and gave them time to ask questions. 	One Board
member was interested in knowing the age of the students, but she explained that age
of the alleged bully is not a factor; rather, it is what was stated and how it was stated.
The Board voted to support her decision. 	After the Board vote, she sent a letter
to the parents with the decision of the Board and advising of the right to appeal, which
they did. 	On October 23, on her way home from the New Jersey School Boards
Association conference, she had a conversation with T.K. about what would take place.
T.K. was confused as to why she was receiving the letter and what her child had done.
Ms. Moutis explained that it was a finding of bullying, and that she had the right to
appeal. 	On the day of the appeal, she asked the ABS to be there, as well as the
attorney, 	for 	questions. 	Mr. 	and 	Mrs. 	K. 	came 	in 	with 	guns 	blazing, 	and 	the
conversation 	was 	immediately 	heated. 	They 	explained 	that 	their 	daughter 	was
inquisitive and asks a lot of questions. 	They said it should not be determined to be an
HIB incident. 	They asked questions like the staff was on the witness stand. 	It was a
very lengthy executive session, where they asked questions like, “Why did you do it this
way?” 	She did not recall Ms. Strickland’s responses, but Ms. Strickland was very
nervous. Ultimately, after the executive session the Board voted in public to support the
decision of the superintendent. A.K. exhibited HIB on the bus and on the playground. It
continued after administrators told her to stop. 	Ms. Moutis did not speak to any
students, but spoke with Ms. Strickland and Ms. Cullari.

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Ms. Moutis spoke with Ms. Strickland mainly about writing reports and the
various incidents. 	The incidents were asking why N3 dressed like a girl on the bus,
continuing to tease N3 on the playground, and not letting N3 write her female name on
her paper. 	The executive session went from 7:00 to 8:25 p.m. 	The report given to the
Board had identification numbers instead of names or initials. 	(J-12.) 	N3’s mother had
said things that A.K. had done to N3 the year before, but they were not presented.
Everything Ms. Moutis knows regarding the investigation is in her report. 	She
does not communicate with the parents before giving her report to the Board. 	At the
appeal hearing, she brought the binder and a copy of the report for those members who
were absent for the vote. She recalled Ms. Strickland answering the parents’ questions
about 	the 	process. 	The 	administrators 	stopped 	answering 	questions 	when 	the
questions became accusatory. 	The attorney conveyed that it was not the place to
discuss the administrators’ process. 	The parents were unable to persuade the Board
that its decision was incorrect.
FINDINGS OF FACT
The majority of the facts are not in dispute. 	However, there are some disputed
facts that will require a credibility analysis. 	Where facts are contested, the trier of fact
must assess and weigh the credibility of the witnesses for purposes of making factual
findings as to the disputed facts. 	Credibility is the value that a finder of the facts gives
to a witness’s testimony. It requires an overall assessment of the witness’s story in light
of its rationality, internal consistency, and the manner in which it “hangs together” with
the other evidence. Carbo v. United States, 314 F.2d 718, 749 (9th Cir. 1963).
“Testimony to be believed must not only proceed from the mouth of a credible witness
but must be credible in itself,” in that “[i]t must be such as the common experience and
observation of mankind can approve as probable in the circumstances.” 	In re Perrone,
5 N.J. 514, 522 (1950).
T.K. was mostly credible in her testimony; however, her view of the meeting was
tainted by the desire to have her daughter exonerated from the bullying charge. 	For
instance, her view that she was prohibited from asking questions was contradicted by

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her own notes. 	However, the Board’s witnesses often contradicted each other, such
that it has been difficult to discern what actually happened between the two students.
While I attribute this mostly to the length of time that had passed between the incidents
in question and the hearing, the administrators could not agree on the most important
fact presented to the Board, which is that the HIB continued after September 29, 2015.
They confused information that they received from N3’s mother with information they
received from students. 	A.K.’s alleged teasing of N3 that he cannot wear a dress to
picture day and A.K.’s alleged threat to N3 were from N3’s mother. 	Ms. Perrone
seemed to have the best recollection.
Based 	on 	the 	testimony, 	the 	documents 	in 	evidence, 	and 	my 	credibility
determinations, I FIND the following facts, in addition to the stipulated facts above.
At all relevant times, petitioners’ minor child was a student at JHES. On or about
September 29, 2015, an incident occurred on the school bus between second graders
A.K. and N3. 	N3, who is biologically male, had begun wearing clothes that are closely
associated with female children.9 	A.K. questioned N3 about his choice of clothing. 	N3
was upset about the questions, and A.K. was upset because N3 was going to tell on
her. 	Later that morning, both children were called into a meeting with principal Stacy
Cullari and school ABS Cheryl Strickland to discuss what had happened.
N3 stated that A.K. was “always mean to him” and was asking him questions
about why he dressed like a girl. 	When N3 asked A.K. to stop asking questions, A.K.
would not stop. N3 reported that the questioning made him feel “bad.” N3 also reported
that A.K. makes fun of him for liking Monster High and Shopkins toys. 	Although
Ms. Strickland testified that N3 also said that A.K. threatened him that if he tells on her,
she will have her parents (who are lawyers) take his parents to court, that statement is
not in her notes of her conversation with N3, but in her notes of her conversation with
N3’s mother.
9 It is unclear exactly when N3 began dressing in this manner.

OAL DKT. NO. EDU 7067-16
23
A.K. admitted that she was asking N3 questions about the clothes that N3 wore.
She also explained that it was difficult for her to remember to call N3 by the preferred
female name, N3, as A.K. had always known him as the male names N1 or N2. When
asked about an occasion when A.K. told N3 that he could not write the name N3 on a
piece of paper, A.K. said that it was her paper and she wanted N3 to write his old name.
After meeting with both children, Strickland called petitioner T.K., A.K.’s mother,
to advise her of the incident on the bus and the meeting with A.K. and N3. 	Strickland
told T.K. that A.K. had an issue on the bus with a peer, and recounted the morning’s
events. 	That evening, petitioners T.K. and L.K. talked to A.K. about the incident. 	They
explained to her that N3 did not like to answer her questions and told her that she had
to stop. A.K. was upset because she felt like she was in trouble.
On September 29, 2015, Cullari talked to N3’s mother, who believes that A.K.’s
conduct qualifies as bullying. N3’s mother reported that another student, J., pushes her
son down on the school bus, doesn’t like to sit next to him because he is different, and
squeezed his hand really hard one day. 	She also reported that A.K. teased N3 about
wanting to wear a dress on picture day, messed up his hair and teased him about it, and
threatened that if he tattled on her, she would have her parents (who are lawyers) take
his parents to court. 	Cullari subsequently revised her notes to remove first one
reference to student J., then all references to student J., such that only references to
A.K.’s conduct were in the report of the interview with N3’s mother.
On September 30, 2015, Strickland interviewed three other students about the
events of the previous day.10 	None of the other children supported the claims of N3.
An interview with one student, M., indicated that another student, J., “teases N., saying
that he is a boy and shouldn’t dress like a girl.” 	Neither Strickland nor Cullari spoke to
the bus driver or any adults who may have witnessed any alleged bullying behavior.
On October 1, 2015, Principal Cullari called petitioner T.K. and informed her that
A.K. had said something again to N3 and that an HIB investigation would be conducted.
10 Notes from these interviews are not provided in the record. Additionally, they are not mentioned in the
HIB investigation report.

OAL DKT. NO. EDU 7067-16
24
Ms. Cullari did not clearly state to T.K. what the allegation was, but indicated that A.K.
had said something to friends at lunch about N3 telling on her. There are no notes that
support that students came to Ms. Cullari and told her that A.K. threatened or harassed
N3. Although she testified that she spoke to N3 about it and he confirmed it happened,
there are no notes of that conversation. 	A.K. denied it. 	Ms. Cullari gave A.K. recess
detention for continuing to harass N3 after she had spoken to her. A.K. was very upset.
N3’s mother’s October 5, 2015, email to Cullari reported much more than her
telephone 	conversation 	with 	Ms. 	Cullari. 	The 	email 	stated 	that 	A.K. 	had 	been
questioning N3 about his choice of clothing since the previous year. 	N3 had explained
to his mother that A.K. makes fun of him, and when he ignores her she just gets louder.
N3’s mother also noted that these interactions were having a negative effect on N3
emotionally and academically. 	N3’s mother put in her October 5, 2015, email to Cullari
that “A.K. retaliated against N3 the next day and continued her harassment in the
cafeteria, telling fellow students that N3 had threatened her.” 	There is no indication in
the notes of Ms. Strickland or Ms. Cullari that N3’s mother’s claim of continued
harassment was investigated.
Principal Cullari sent a letter to petitioners dated October 15, 2015, notifying
them that she had received a written report on October 5, 2015, which set forth that A.K.
had committed an alleged act of HIB and that those allegations were being investigated
by ABS Strickland. ABS Strickland provided her report to Superintendent Moutis. Upon
her receipt of the report, Moutis read it, copied it, and placed it in the file for the Board
meeting on October 19, 2015. The report did not go home with Board members in their
packets. 	The Board members saw the summary for the first time at their meeting on
October 19, 2015. 	They were not advised of the identities of the students. 	After
reading the report, Ms. Moutis thought it was very clear that there had been HIB based
upon gender identity.
Ms. Moutis presented the report in the Board’s October 19, 2015, executive
session. 	In executive session, the Board discussed the HIB report, the HIB protocol,
the rights of the students, and the Board’s role. 	The minutes indicate that the Board
convened to executive session at 7:01 p.m. and did not return to open session again

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until 8:25 p.m. 	There was a lot of discussion to ensure that the Board members
understood the process before voting. 	Ms. Moutis gave the members time to read the
report and gave them time to ask questions. 	One Board member was interested in
knowing the age of the students, but she explained that age of the alleged bully is not a
factor; rather, it is what was stated that is important.
The Board then returned to public session. The minutes indicate that a vote was
passed in public session with four yes votes and two abstentions to accept Ms. Moutis’s
recommendation. 	No 	other 	matter 	was 	discussed. 	Ms. 	Moutis 	sent 	a 	letter 	to
petitioners dated October 20, 2015, stating that the Board had approved the findings of
the ABS investigation at a meeting held on October 19, 2015. 	The letter informed
petitioners that they had a right to request a hearing before the Board, and the request
must be in writing.
The 	same 	day, 	ABS 	Strickland 	and 	Dori 	Levy, 	the 	District’s 	anti-bullying
coordinator, sent a letter to the petitioners, along with a “Summary of the Bullying
Investigation,” although what was attached was called a report. 	The report indicates in
the first paragraph that the ABS investigator spoke to N3, and sets forth what he said.
However, it attributes to N3 remarks actually made by his mother, specifically, the threat
that if he told on A.K. she would have her parents take action against him. The second
paragraph references what A.K. told the investigator. 	The third paragraph references
the conversation the investigator had with N3’s mother. 	The summary report did not
contain information regarding any other aspects of the investigation, any other evidence
considered by the ABS, or the findings of fact upon which the conclusion was based.
Those findings were in the separate form entitled HIB Investigation ABS Report, which
was 	not 	provided 	prior 	to 	the 	Board 	hearing. 	The 	summary 	indicates 	that 	the
investigation 	was 	completed 	on 	October 	13, 	2015, 	and 	that 	enumerated 	support
services were offered to the student. It also states at the end that student discipline was
administered in the form of a recess detention on October 1, 2015.
On 	October 	27, 	2015, 	petitioners 	called 	the 	superintendent’s 	office 	and
scheduled a meeting with Superintendent Moutis, Principal Cullari, and ABS Strickland
to discuss the HIB investigation and the Board’s HIB determination. 	The following day,

OAL DKT. NO. EDU 7067-16
26
Superintendent Moutis cancelled the meeting with petitioners, explaining that she could
not meet with them to discuss or answer any questions about the HIB conclusion.
Superintendent 	Moutis 	informed 	petitioners 	that 	if 	they 	disagreed 	with 	the 	HIB
determination, their only recourse was to request a hearing to appeal it before the
Board.
Petitioners requested a hearing. The letter advising of their right to a hearing did
not advise whether they could bring witnesses or documents. 	The hearing was
scheduled for November 9, 2015, but it was rescheduled to November 16, 2015, when
petitioners could not make the meeting and waived the right to have the hearing in ten
days. 	Prior to the hearing, Gorman explained the process to petitioners. 	During the
hearing, no one from the Board or the administration presented anything to the Board in
front of petitioners. Petitioner T.K. asked the questions that she had brought with her at
the hearing. 	The list showed she had checked off nearly all of them as having been
asked. She has notes of some answers in the margins of her questions. Attorney Brett
Gorman responded to most of the questions by reading from the HIB Investigation ABS
Report. However, Ms. Cullari responded to a comment by A.K.’s father. Petitioner T.K.
presented additional facts about A.K. and her inquisitive personality. Gorman permitted
petitioners to ask questions of ABS Strickland, but not about the process they used for
the investigation.
Petitioners received a letter dated December 15, 2015, from Joyce A. Goode,
secretary of the Board, notifying them that the Board had denied their appeal and
affirmed the superintendent’s determination. Secretary Goode’s letter indicated that the
Board had considered petitioners’ “appeal of the finding that no HIB violation occurred”
(J-25, emphasis added), even though petitioners had appealed the superintendent’s
finding that A.K. had engaged in HIB.
On February 17, 2016, pursuant to New Jersey’s Open Public Records Act,
petitioners requested copies of all records pertaining to A.K. 	The Board complied with
the request on February 26, 2016. 	Petitioners then received copies of the HIB
allegations 	made 	against 	A.K. 	and 	learned 	what 	was 	entailed 	in 	the 	school’s

OAL DKT. NO. EDU 7067-16
27
investigation of the HIB allegations, including the notes of the interviews with the
students.
A.K.’s current relationship with N3 is that they are in the same class, as well as
on the same bus. 	They play together and they are just typical students. 	A.K. is more
nervous and anxious and scared of doing anything wrong. 	N3 is allowed to bring a
friend to his counseling session, and invited A.K.
LEGAL DISCUSSION
The New Jersey Anti-Bullying Bill of Rights Act (ABA), N.J.S.A. 18A:37-13 to -32,
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). 	Each
school district must adopt a policy that prohibits HIB and provides for a prompt response
to any alleged HIB incident. 	N.J.S.A. 18A:37-15. 	Once an alleged HIB incident is
reported to the school principal, the principal must initiate an investigation within one
school day of the report. 	N.J.S.A. 18A:37-15(b)(6)(a). 	The investigation shall be
conducted by a school anti-bullying specialist and shall take no longer than ten school
days to be completed. Ibid.
The 	results 	of 	the 	investigation 	shall 	then 	be 	quickly 	reported 	to 	the
superintendent of schools, who may take certain remedial action. 	N.J.S.A. 18A:37-
15(b)(6)(b). 	The results shall 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 parents of the students involved in any alleged HIB incident are entitled to
receive 	information 	about 	the 	nature 	of 	the 	investigation 	and 	the 	result 	of 	the
investigation. 	N.J.S.A. 18A:37-15(b)(6)(d). 	The parents may request a hearing before
the board, and the hearing must be held within ten days of the request. 	Ibid. 	Any

OAL DKT. NO. EDU 7067-16
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hearing shall be held in executive session to protect the identity of any students
involved. 	Ibid. The board may hear from the anti-bullying specialist about the incident,
recommendations for discipline or services, and any programs instituted to reduce such
incidents. Ibid.
The board must issue a decision at the first meeting after its receipt of the
investigation report. 	N.J.S.A. 18A:37-15(b)(6)(e). 	The board may affirm, reject, or
modify the superintendent’s decision. 	Ibid. 	The board’s decision may be appealed to
the Commissioner of Education. Ibid.
The Commissioner of Education will not overturn the decision of a local board in
the 	absence 	of 	a 	finding 	that 	the 	action 	below 	was 	arbitrary, 	capricious, 	or
unreasonable. 	T.B.M. v. Moorestown Bd. of Educ., EDU 2780-07, Initial Decision
(February 6, 2008) (citing Thomas v. Morris Twp. Bd. of Educ., 89 N.J. Super. 327, 332
(App. 	Div. 	1965), 	aff’d, 	46 	N.J. 	581 	(1966)), 	adopted, 	Comm’r 	(April 	7, 	2008),
http://njlaw.rutgers.edu/collections/oal/. 	Further, the Commissioner will not substitute
his judgment for that of the board of education, whose exercise of its discretion may not
be disturbed unless shown to be “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). 	New Jersey courts have held that “[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 Sewerage Co. v. Dep’t of Envt’l Prot., 122 N.J. Super. 184, 199–
200 (Ch. Div. 1973), aff’d, 131 N.J. Super. 37 (App. Div. 1974). 	Thus, in order to
prevail, the petitioner must demonstrate that the board acted in bad faith, or in utter
disregard 	of 	the 	circumstances 	before 	it. 	T.B.M., 	EDU 	2780-07, 	Initial 	Decision
(February 6, 2008), http://njlaw.rutgers.edu/collections/oal/; see W.C.L. & A.L. ex rel L.L.
v. Tenafly Bd. of Educ., EDU 3223-12, Initial Decision (November 26, 2012), aff’d,
Comm’r (January 10, 2013), http://njlaw.rutgers.edu/collections/oal/ (The petitioners
challenged the school board’s decision that a student committed an act of HIB. 	The
administrative law judge (ALJ) found that the board’s actions were consistent with the
letter and spirit of the law and were not taken in bad faith or in disregard of the
circumstances. 	The ALJ concluded that the petitioners failed to establish that the

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29
board’s 	actions 	were 	arbitrary, 	capricious, 	or 	unreasonable. 	The 	Commissioner
affirmed the ALJ’s decision to dismiss the petition of appeal.); J.M.C. ex rel A.C. v. E.
Brunswick 	Bd. 	of 	Educ., 	EDU 	4144-12 	(November 	27, 	2012), 	adopted, 	Comm’r
(January 9, 2013), http://njlaw.rutgers.edu/collections/oal/ (The petitioner challenged the
board’s determination that the actions of the petitioner’s son constituted HIB. The board
found that the student called another student “gay” and said he “danced like a girl.” The
demeaning remarks constituted HIB.). 	In both cases, the petitioners failed to satisfy
their 	burden 	to 	show 	that 	the 	board’s 	actions 	were 	arbitrary, 	capricious, 	or
unreasonable.
Definitions relative to adoption of harassment and bullying prevention policies are
found in N.J.S.A. 18A:37-14, which states in part:
“Harassment, intimidation or bullying” means any gesture,
any 	written, 	verbal 	or 	physical 	act, 	or 	any 	electronic
communication, whether it be a single incident or a series of
incidents, that is reasonably perceived as being motivated
either by any actual or perceived characteristic, such as
race, color, religion, ancestry, national origin, gender, sexual
orientation, gender identity and expression, or a mental,
physical or sensory disability, or by any other distinguishing
characteristic, that takes place on school property, at any
school-sponsored function, on a school bus, or off school
grounds as provided for in section 16 of P.L.2010, c.122
(C.18A:37-15.3), that substantially disrupts or interferes with
the orderly operation of the school or the rights of other
students and that:
a. 	a reasonable person should know, under the
circumstances, will have the effect of physically or
emotionally 	harming 	a 	student 	or 	damaging 	the
student’s property, or placing a student in reasonable
fear of physical or emotional harm to his person or
damage to his property;
b. 	has the effect of insulting or demeaning any
student or group of students; or
c. 	creates a hostile educational environment for
the student by interfering with a student’s education or
by 	severely 	or 	pervasively 	causing 	physical 	or
emotional harm to the student.

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30
Mansfield 	Township 	School 	District’s 	HIB 	Policy 	5131.9, 	“Harassment,
Intimidation and Bullying,” mirrors the New Jersey law. 	P-10; P-11. 	Additionally, the
policy sets forth a detailed process by which complaints are investigated to see whether
an action meets the definition of HIB as set forth in the policy and the ABA.
Petitioners’ first argument is that the Board’s investigation was not complete or
properly documented as required by Board policy 5131.9. 	While it is true that the only
source of the allegation of continued harassment in the cafeteria after the bus incident
was N3’s mother, who was told that by N3, the issue is how much support for the
allegation is necessary. N3’s mother said in her email that “[A.K.] retaliated against [N3]
the next day and continued her harassment in the cafeteria, telling fellow students that
[N3] threatened her.” 	If Principal Cullari or ABS Strickland confirmed the remarks with
N3 and made a note that they did so, that would be sufficient, but the fact that there are
no notes that they interviewed N3 makes it unbelievable that either of them did, as all
other interviews are documented. 	Neither of them testified that they tried to determine
who the students were and confirm it with a staff member who was assigned to the
cafeteria at that time. 	Board policy 5131.9 states that the investigation shall include
“taking of statements from victims, witnesses and accused.” 	While the ABS and
principal can get statements from the mother of the victim, such a statement should not
be the sole source of an allegation. 	They simply took the mother’s word as written in
the email, which, as petitioners rightly argue, had to be N3’s mother’s recounting of
what N3 had told her, and was thus triple hearsay.
Petitioners also argue that by ABS Strickland and Principal Cullari investigating
the allegations together, they contravened the terms of the ABA and the Board’s policy.
Petitioners argue that Strickland’s therapeutic relationship with N3 caused her to focus
almost exclusively on the impact on N3 rather than A.K.’s culpability, and that she was
biased. 	The investigation could have been more thorough by interviewing the teacher
or the bus driver. 	ABS Strickland completely ignored the statements of the other
students, who refused to corroborate N3’s account of what occurred on the bus. 	She
should have disclosed those interviews and indicated why she did not consider those
students’ statements. 	She has the right to make credibility determinations, especially

OAL DKT. NO. EDU 7067-16
31
when A.K. even admitted to some of the conduct N3 alleged, but the Board should be
provided with complete information. By not providing all the information, and attributing
statements to N3 that were actually made by his mother, Ms. Strickland made it
impossible for the Board to make a truly informed decision. 	I CONCLUDE that the
investigation was neither thorough nor complete, as required by the Board policy, and
caused the Board to make a decision based on incomplete and questionable facts.
Petitioners next argue that the Board’s decision was arbitrary, capricious, or
unreasonable because the appeal hearing did not comply with the ABA, the Board’s
policies, or due process. 	They argue that implicit in the right to a hearing is the right to
an evidentiary hearing. 	However, the Legislature could have simply added the word
“evidentiary” if it intended it to be that type of hearing. 	Instead, N.J.S.A. 18A:37-
15(b)(6)(d) provides that, “[a]t 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.” 	Emphasis added. 	Petitioners state
that 	the 	student-conduct 	regulations, 	N.J.A.C. 	6A:16-7.2 	and 	-7.3, 	which 	address
procedural requirements for student suspensions, should apply to a student engaged in
HIB, as it remains in the student’s permanent school record. 	However, the HIB
regulations do not set forth such procedural requirements. 	They allow boards to set
rules regarding the conduct of appeal hearings.
Both petitioners and the Board cite the Commissioner’s decision in Gibble v.
Board of Education of the Hunterdon Central Regional School District, EDU 2767-15,
Initial 	Decision 	(April 	12, 	2016), 	adopted, 	Comm’r 	(July 	13, 	2016),
http://njlaw.rutgers.edu/collections/oal/, in support of their positions. 	Petitioners cite it
for the holding that the ABA entitles individuals accused of HIB to due process. 	The
Board cites it for the holding that there is no right to a full adversarial hearing, including
the right to call witnesses. 	Thus, the issue is whether the Board provided petitioners
with adequate due process. 	The Board provided petitioners a separate hearing at
which they were allowed to present materials and to ask questions. 	Petitioners were
not provided much information regarding their rights to present evidence at the hearing,
but 	they 	were 	not 	prohibited 	from 	bringing 	witnesses 	and 	documents 	or 	being

OAL DKT. NO. EDU 7067-16
32
represented by counsel. 	T.K. familiarized herself with the HIB procedures prior to
attending the hearing.
The report set forth the factual basis of the HIB finding, although the allegation of
harassment after the mediation was vague at best. 	Petitioners were provided with
ample time to present their appeal of the HIB finding, setting forth that A.K. was just
curious and that she did not believe that she had done anything wrong to merit the
recess detention the day after the bus incident. 	Petitioners went through all of their
comments 	and 	questions. 	The 	fact 	that 	they 	did 	not 	receive 	answers 	to 	their
satisfaction does not obviate the fact that they were able to present their case. 	The
hearing was not to cross-examine the ABS or the principal about their process.
Petitioners’ citations to the rules governing student suspensions are not applicable to
HIB hearings. 	For these reasons, I CONCLUDE that petitioners did not meet their
burden of proving that the Board’s decision was arbitrary because the hearing deprived
petitioners of due process as set forth in the ABA and Board policies. 	I CONCLUDE,
based on my findings of fact, that petitioners were provided adequate due process in
the conduct of the Board hearing.
Petitioners also argue that the Board’s notice of the specific charges was
inadequate, in that neither A.K. nor her parents were allowed to respond to the specific
allegations against A.K. before the conclusion of the HIB investigation. 	Superintendent
Moutis canceled a meeting at which the petitioners were seeking to learn the charges
against A.K. 	Petitioners argue that they should have been notified of what was found
and the specific factual basis for concluding that A.K. engaged in HIB. Petitioners argue
that the report did not so notify them. 	The report sets forth that the charge of HIB is
based on the reports of N3 and N3’s mother and the admissions of A.K. when she was
first interviewed. It goes on to note that the harassment continued after Principal Cullari
and ABS Strickland told A.K. to stop when questioned about the bus incident. 	This
allegation of continuing harassment, upon which the Board heavily relied, was vague
and unsupported. The petitioners and the Board should have been advised of all of the
aspects of the investigation. 	As set forth above, the parents of the students involved in
any alleged HIB incident are entitled to receive information about the nature of the
investigation and the result of the investigation. 	N.J.S.A. 18A:37-15(b)(6)(d). 	The

OAL DKT. NO. EDU 7067-16
33
parents are to be provided this information within five days after the results of the
investigation are reported to the board. 	If the Board had done so, petitioners would
have had it prior to the Board hearing. 	The letter from the Board secretary after the
hearing says that the Board considered “investigation reports, witness statements and
other pertinent materials” in addition to petitioners’ presentation, but the Board had
nothing but the summary report. 	I CONCLUDE that the failure of the superintendent to
provide the parents the information regarding the nature of the investigation was in
violation of the statute and Board policy 5131.9.
Petitioners’ next argument, that the Board’s decision was arbitrary, capricious, or
unreasonable because it was not supported by substantial evidence, is again based on
citations 	from 	regulations 	governing 	student 	suspensions, 	N.J.A.C. 	6A:16-7.3.
Petitioners note that such regulations can serve as a guide in HIB hearings, but
nowhere does it say that the same standard—that the Board’s decision must be based
on 	the 	preponderance 	of 	the 	competent 	and 	credible 	evidence—applies 	to 	HIB
hearings. 	However, ABS Strickland relied heavily on the statements of N3’s mother,
both on the phone and in writing. N3’s mother received her information from N3, as she
was not present in the school during the incidents, so it was hearsay. 	ABS Strickland
had the right to believe N3, given her knowledge of N3, but N3’s mother’s statement
that A.K. engaged in a pattern of harassment against N3 that continued after ABS
Strickland spoke to her needed to be corroborated. 	Petitioners argue that this shows
bias on the part of Strickland. 	While I disagree with this argument, since the Board
policy requires that the investigation include support for the victim, corroboration at least
from the victim was needed. I therefore CONCLUDE that the statements set forth in the
report 	presented 	to 	the 	Board 	were 	insufficient 	to 	sustain 	the 	superintendent’s
recommendation of HIB.
Next, petitioners argue that the Board’s decision was clearly erroneous because
the superintendent applied the wrong legal standard when she concluded that A.K.’s
age did not matter in the analysis of whether she committed HIB. 	N.J.A.C. 6A:16-
7.7(a)(2)(vi)(1) provides that a board’s HIB policy must include consequences for a
student who commits an act of HIB that are “[v]aried and graded according to the nature
of the behavior; the nature of the student’s disability, if any, and to the extent relevant;

OAL DKT. NO. EDU 7067-16
34
the developmental age of the student; and the student’s history of problem behaviors
and performance.”
The 	Board’s 	HIB 	policy 	states, 	“The 	board 	expects 	students 	to 	conduct
themselves, in keeping with their level of maturity, with a proper regard for the rights
and welfare of other students . . . .” 	(P-10 at 1.) 	It goes on to repeat the standard set
forth in the regulations. 	Petitioners argue that Superintendent Moutis did not take into
account A.K.’s developmental age or maturity level, as she believed it was irrelevant.
When a Board member asked about A.K.’s age, she insisted that under the law the
Board must consider the student’s conduct without regard to his or her age. The Board
spent more than an hour discussing A.K.’s alleged HIB at its October meeting, and
Superintendent Moutis testified that the primary focus of that discussion was the issue
of A.K.’s developmental age and the relevance of her age to the question of whether
she engaged in HIB. The Superintendent’s conclusion was affirmed by a vote of four in
favor and two abstaining. 	The Board discussed the issue again after the November
appeal hearing, and the Superintendent’s decision was affirmed as part of the Board’s
consent agenda on December 14, 2015. The Board did not produce any written opinion
or decision. 	Ms. Perrone testified that she considered A.K.’s age, but concluded that
A.K. understood that she was upsetting N3 and persisted, and that what really mattered
was the impact of her conduct on N3, not her actual intent.
The superintendent was incorrect that A.K.’s developmental age was irrelevant,
based on the HIB regulations and the Board’s HIB policy. The superintendent’s opinion
on this point was relevant to the Board members because they asked about it in a
lengthy closed-session meeting in October. 	If Superintendent Moutis had said that
A.K.’s young age was not a bar to finding HIB, that would have been correct; however,
saying that it had no bearing on the Board’s decision was incorrect. 	The issue is
whether the superintendent’s misstatement of the law means that the Board was
arbitrary, capricious, or unreasonable in its decision to uphold the superintendent’s
conclusion that A.K. committed HIB. I CONCLUDE that it was.
Petitioners argue that A.K.’s developmental age is relevant not just under the
regulations and Board policy, but as to whether her behavior can actually be HIB. They

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cite N.J.S.A. 18A:37-14 for the proposition that the behavior must be “motivated by any
actual or perceived characteristic.” However, the actual wording of the statute says that
HIB means “any gesture, any written, verbal or physical act, . . . that is reasonably
perceived as being motivated either by any actual or perceived characteristic, such as
. . . gender identity and expression.” 	N.J.S.A. 18A:37-14 (emphasis added). 	Thus,
based on the “reasonably perceived” language, Ms. Perrone was correct that the statute
focuses on the impact of A.K.’s conduct on N3 and what N3 reasonably perceived.
However, Ms. Perrone’s determination of the impact on N3 was made based on the
“fact” that A.K.’s conduct persisted. 	There was no allegation that A.K. continued to
question N3 about his choice of clothing after the mediation. 	The allegation that A.K.
continued “harassment” of N3 in the cafeteria the next day was not supported by one
person who was there, hence, the vagueness of the charge. 	T.K. was never told what
the 	harassment 	consisted 	of 	because 	the 	allegation 	was 	not 	investigated.
Ms. Perrone’s decision was also made without knowing that there was at least one
other student, J., who harassed N3 on the bus and could have been an additional
source of N3 being upset and not wanting to ride the bus. 	This fact was hidden by the
investigators. 	There is no requirement that the Board find that A.K.’s conduct was
actually motivated by the perceived characteristic, because, as petitioners argue, A.K.
most likely does not even know what “gender identity” means. 	However, even under
the actual wording of the statute, the only corroborated finding from the investigation
was that A.K. asked questions about why N3 dressed like a girl even though N3 asked
her to stop. 	Therefore, the age of A.K. was relevant to whether A.K.’s conduct was
motivated by the perceived characteristic or because a seven-year-old would be curious
about why a student she knew as a boy was dressing like a girl. 	The investigators had
the time to find and interview someone in the cafeteria who may have heard A.K.
continue the “harassment,” but they did not. I CONCLUDE that the misstatement of the
law that age was not to be a factor in the Board’s determination was a major factor in
the 	Board’s 	decision 	and 	it 	made 	the 	Board’s 	decision 	arbitrary, 	capricious, 	or
unreasonable.
Petitioners also argue that the Board’s decision was clearly erroneous because
the facts do not support the conclusion that A.K. committed HIB, in that they did not
show that her conduct “substantially [disrupted or interfered] with the orderly operation

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of the school or the rights of other students” and that A.K. knew or should have known
that it would have the effect of emotionally harming a student. N.J.S.A. 18A:37-14. The
Board accepted the superintendent’s report that A.K. demonstrated that she knew her
conduct would emotionally harm N3 because she was concerned about N3 tattling on
her. 	The superintendent advised the Board that there is no reason for A.K. to fear N3
telling the teacher or principal if she really believed she was just asking a question out
of curiosity. When A.K. got off the bus on September 29, 2015, she was upset that N3
would tell on her. 	A second-grade student knows when she is in trouble, even if she
does not necessarily believe that she did anything wrong. Strickland and Cullari told her
that she did something wrong by asking N3 so many questions, and there is no
allegation that she continued to ask him questions after that. 	In addition, T.K.’s
testimony that A.K.’s current relationship with N3 is that they are in the same class as
well as on the same bus was unrefuted. 	The testimony that they play together and are
just typical students also was not disputed by any of the Board witnesses. 	In fact, the
testimony demonstrated that the incident had a more lasting effect on A.K., making her
more nervous and scared of doing anything wrong. 	In addition, N3 chose to bring A.K.
as his friend to his counseling session. 	Therefore, I CONCLUDE that A.K. did not
substantially disrupt or interfere with the orderly operation of the school or the rights of
other students, and that A.K. neither knew nor should have known that her conduct
would have the effect of emotionally harming a student.
Petitioners insist that the Board had to find “malicious intent” in A.K.’s actions;
however, that language is not in the statute or regulations governing HIB. 	The
Legislature could have set a higher standard for a finding of HIB, but it did not. 	As a
result, the reasonable perception of motivation by gender identity is sufficient to support
a finding of HIB. 	Here the Board did not have evidence that A.K.’s conduct was
motivated by anything other than curiosity, confusion, and being scared that N3 would
tell on her. 	The impact on N3 that he was upset and no longer wanted to ride the bus
may not have been solely the fault of A.K. The investigators did not ask about whether
the conduct of J. or any other student on the bus made N3 upset. 	If the Board had the
information that other students harassed N3, and still decided that A.K. was the source
of the substantial impact on N3, that would have been fine. 	However, the Board was
not provided that information.

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37
Ms. Strickland, Ms. Cullari, and Ms. Moutis concluded that A.K. engaged in HIB
based on their findings that A.K. admitted that she asked questions that made N3
uncomfortable and upset, that she knew her actions made N3 uncomfortable and upset,
that she was concerned that N3 would tell on her, and that, the next day, she continued
to express concern that N3 would tell on her and threatened him if he did. 	The
conclusion was provided to the Board when there was no corroboration for the finding
that A.K. expressed a threat to N3 if he told on her. 	The Board relied heavily on the
continuing nature of the conduct, which was not corroborated. The Board accepted the
administrators’ conclusion that the conduct was reasonably perceived to be motivated
by N3’s gender identity because they were told that A.K.’s age was not a factor in that
determination. 	The Board accepted the conclusion that A.K.’s conduct substantially
interfered with the rights of N3 because information was withheld from them that there
was at least one other student who may have contributed to N3 being upset and not
wanting to ride the bus. 	For these reasons, I CONCLUDE that the Board’s acceptance
of the administrators’ determination of HIB was inconsistent with evidence, the law, and
Board policy.
Thus, in determining whether A.K. committed HIB pursuant to N.J.S.A. 18A:37-
14, the Board did not have evidence that A.K. knew that her asking questions would
have the effect of emotionally harming N3. In fact, there is no evidence that her conduct
did emotionally harm N3, other than he was upset when getting off the bus. The Board
did not have evidence from the alleged victim, the accused, or any witness that A.K.’s
conduct had the effect of insulting or demeaning N3. 	The only source of such
information was N3’s mom, and her allegations referenced conduct that occurred prior
to the September 29, 2015, bus incident. 	There were no allegations that A.K. said
anything insulting to N3 after the September 29, 2015, incident. Last, the Board had no
evidence 	that 	A.K.’s 	conduct 	created 	a 	hostile 	educational 	environment. 	The
investigators never talked to N3’s teacher or any staff members to determine whether
N3 was acting differently in school at that time. 	For these reasons, I CONCLUDE that
A.K.’s conduct did not meet the statutory definition of HIB, N.J.S.A. 18A:37-14.

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The Board decision was not made in bad faith; however, it was made with
reliance on faulty information of the circumstances that led to the HIB determination and
incorrect statements of the law. 	For the foregoing reasons, I CONCLUDE that the
petitioners proved by a preponderance of the credible evidence that the Board’s actions
were arbitrary, capricious, or unreasonable.
ORDER
I ORDER that the decision of the Mansfield Township Board of Education be
REVERSED, and that the finding of harassment, intimidation, or bullying be removed
from A.K.’s student file.
I hereby FILE my initial decision with the COMMISSIONER OF EDUCATION for
consideration.

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This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF EDUCATION, who by law is authorized to make a final decision
in this matter. 	If the Commissioner of Education does not adopt, modify or reject this
decision within forty-five days, this recommended decision shall become a final decision
in accordance with N.J.S.A. 52:14B-10.
January 22, 2019
DATE 	LISA JAMES-BEAVERS
Acting Director and Chief
Administrative Law Judge
Date Received at Agency:
Date Mailed to Parties:
caa

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APPENDIX
WITNESSES
For Petitioners:
T.K.
For Respondent:
Stacy Cullari
Cheryl Strickland
Brett Gorman, Esq.
Alison Perrone
Tiffany Moutis
EXHIBITS
Joint:
J-1 	Initial HIB report dated September 29, 2015
J-2 	Notes from HIB investigation
J-3 	Bullying Incident Report Form
J-4 	HIB Investigation Form 1 dated October 1, 2015
J-5 	HIB Investigation Form 2 dated October 1, 2015
J-6 	Email from T.K. to Stacy Cullari dated October 1, 2015
J-7 	Email from M.V. to Stacy Cullari dated October 5, 2015
J-8 	Letter from Stacy Cullari to petitioners dated October 15, 2015
J-9 	HIB report for N.V. and A.K.
J-10 	HIB Intervention Plan Documents
J-11 	HIB Investigation Anti-Bullying Specialist Report 1 dated October 15, 2015
J-12 	HIB Investigation Anti-Bullying Specialist Report 2 dated October 15, 2015
J-13 	BOE Meeting Agenda dated October 19, 2015
J-14 	BOE Public Meeting Minutes dated October 19, 2015
J-15 	BOE Executive Session Meeting Minutes dated October 19, 2015

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J-16 	Letter from Tiffany Moutis to petitioners dated October 20, 2015
J-17 	Letter from Cheryl Strickland and Dori Levy to petitioners dated October
20, 2015, enclosing the Bullying Report
J-18 	Letter from Tiffany Moutis to petitioners dated November 2, 2015
J-19 	Letter 	from 	petitioners 	to 	Mansfield 	Township 	School 	District 	dated
November 3, 2015
J-20 	BOE Meeting Agency dated November 16, 2015
J-21 	BOE Public Meeting Minutes dated November 16, 2015
J-22 	BOE Executive Session Meeting Minutes dated November 16, 2015
J-23 	BOE Meeting Agenda dated December 14, 2015
J-24 	BOE Public Meeting Minutes dated December 14, 2015
J-25 	Letter from Joyce Goode to petitioners dated December 15, 2015
J-26 	Handwritten notes—bus incident of 9/29/15
J-27 	Handwritten notes—Ms. V. and T.K.—dated September 29
J-28 	Handwritten notes dated October 5, 2015
For Petitioners:
P-1 	Pictures of A.K.
P-2 	A.K. note dated September 30, 2015
P-3 	Ms. Cullari email to T.K. dated October 7, 2015
P-4 	T.K. email to Cullari dated October 7, 2015
P-5 	Email exchange between T.K. and Ms. Cullari dated October 15, 2015
P-7 	T.K.’s HIB appeal outline/presentation
P-10 	Mansfield Township School District HIB Policy 5131.9
P-11 	Mansfield Township School District Conduct/Discipline Policy 5131
P-12 	Mansfield Township School District Parent/Student Handbook—2015–-
2016
P-13 	N.J. Department of Education Anti-Bullying Bill of Rights Act, Questions
and Answers
P-14 	N.J. Department of Education Model Policy and Guidance for Prohibiting
HIB
P-15 	Draft HIB report for review

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P-16 	Email Cheryl Strickland to T.K.
P-17 	Email exchanges re: HIB
P-18 	Email exchanges of Stacy Cullari re: HIB report
P-19 	N.J. Department of Education Guidance for Schools for the Anti-Bullying
Bill of Rights Act
For Respondent:
R-1 	Email from T.K. to Cheryl Strickland