270-19•C.S., on behalf of minor child, J.S. V. Lacey Township Board of Education, 10/16/19, (#270-19)
C.S., on behalf of minor child, J.S. V. Lacey Township Board of Education, 10/16/19, (#270-19)
270-19Njcommned
Testo completo
270-19 New Jersey Commissioner of Education Final Decision Synopsis Petitioner, now an adult, appealed the determination of the Lacey Township Board of Education that she committed an act of harassment, intimidation and bullying (HIB) in May 2014 when she reacted to a fellow student’s vocal performance in music class by plugging her ears and allegedly saying “I’m going to need ear plugs to get through this part of the concert.” The Board contended that it had properly conducted an HIB investigation and based its finding on two potential distinguishing characteristics when it determined that J.S. had committed an act of HIB against fellow student, C.H. Petitioner claimed that she had trouble with noise hypersensitivity, and that her actions had nothing to do with C.H. The parties filed opposing motions for summary decision. The ALJ found, inter alia, that: there are no genuine issues of material fact here, and the matter is ripe for summary decision; an action by a board of education is entitled to a presumption of correctness unless it is proven to be arbitrary, capricious or unreasonable; under New Jersey’s Anti-Bullying Bill of Rights Act (Act), “harassment, intimidation, or bullying” is broadly defined as any gesture, any written, verbal, or physical act, or any electronic communication that is reasonably perceived as motivated by any actual or perceived distinguishing characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical, or sensory disability, that takes place on school property and substantially disrupts the orderly operation of the school; in the instant case, the Board found that J.S.’s conduct while C.H. was singing – i.e., plugging or covering her ears, and allegedly making a derogatory comment – constituted an act of HIB; however, the alleged conduct did not satisfy the threshold requirement of being motivated by a distinguishing characteristic, and instead appeared to be motivated by a past relationship between J.S. and C.H. The ALJ concluded that J.S.’s alleged conduct did not constitute a HIB violation. Accordingly, the ALJ denied the Board’s motion for summary decision and granted the petitioner’s cross motion for summary decision. The Board’s determination of HIB was reversed. Upon review, the Commissioner concurred with the ALJ’s findings and conclusion, and adopted the Initial Decision of the OAL as the final decision in this matter. 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. October 16, 2019 C.S. on behalf of minor child, J.S., Petitioner, v. Board of Education of the Township of Lacey, Ocean County, Respondent.
OAL Dkt. No. EDU 03693-15 Agency Dkt. No. 34-2/15 New Jersey Commissioner of Education Final Decision The record of this matter and the Initial Decision of the Office of Administrative Law (OAL) have been reviewed, as have the exceptions filed by the Board pursuant to N.J.A.C. 1:1-18.4, and petitioner’s reply thereto. This matter stems from an incident that occurred on May 1, 2014, when J.S. allegedly plugged her ears, made gestures, and possibly made a comment about needing earplugs, while another student, C.H., was singing a solo in music class. J.S. and C.H. previously had a close personal relationship that had ended. Following an investigation, the Board found that J.S. had committed an act of harassment, intimidation and bullying (HIB), pursuant to the Anti-Bullying Bill of Rights Act (Act), N.J.S.A. 18A:37- 13 et seq. Petitioner filed an appeal on behalf of J.S.,1 challenging the Board’s finding of a HIB violation. The Administrative Law Judge (ALJ) reversed the Board’s determination and concluded that the alleged conduct did not constitute a HIB violation. The ALJ found that the alleged conduct did not meet the threshold requirement of being motivated by a distinguishing characteristic. While the Board sets forth two potential distinguishing characteristics – C.H.’s perceived sexual orientation or that C.H. is a weaker and more vulnerable female – the ALJ found that it was unclear on which characteristic 1 The Commissioner notes that J.S. is no longer a minor and is now pursing this case on her own behalf. C.S., on behalf of minor child, J.S., Petitioner, v. Board of Education of the Township of Lacey, Ocean County, Respondent.
the Board was basing its finding, and that there was insufficient evidence presented in the record that C.H. 1 is weaker or more emotionally vulnerable. Even if the Board had established a distinguishing characteristic, the ALJ found that there was no link between the distinguishing characteristic and the alleged conduct to establish that the conduct was motivated by the characteristic. The ALJ noted that, instead, the actions in this matter appear to have been motivated by the girls’ past relationship, and that pursuant to K.L. v. Evesham Township Board of Education, 423 N.J. Super. 337, 351 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012), “harmful or demeaning conduct motivated only by another reason, for example, a dispute about relationships or personal belongings, or aggressive conduct without identifiable motivation, does not come within the statutory definition of bullying.” Upon a comprehensive review of the record, the Commissioner agrees with the ALJ that the alleged conduct – plugging her ears and making gestures or a comment about needing earplugs – did not meet the statutory definition of HIB. The Commissioner further concurs that the alleged conduct appears to stem from the students’ past relationship and was not motivated by an actual or perceived distinguishing characteristic of C.H. The Board’s exceptions do not challenge the ALJ’s conclusion that the finding of HIB against J.S. is reversed. Finally, the Commissioner notes that the Board argues that the Initial Decision should have addressed petitioner’s claim for monetary relief. However, there is no legal authority for petitioner to recover damages in this forum. Accordingly, the Initial Decision of the OAL is adopted as the final decision in this matter, for the reasons thoroughly set forth in the Initial Decision. IT IS SO ORDERED.2 COMMISSIONER OF EDUCATION 2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36 (N.J.S.A 18A:6-9.1).
Date of Decision: October 16, 2019 Date of Mailing: October 17, 2019 2
1 State of New Jersey OFFICE OF ADMINISTRATIVE LAW INITIAL DECISION GRANTING CROSS MOTION FOR SUMMARY DECISION OAL DKT. NO. EDU 03693-15 AGENCY DKT. NO. 34-2/15 C.S., ON BEHALF OF MINOR CHILD, J.S., Petitioner, v. LACEY BOARD OF EDUCATION OF THE TOWNSHIP OF LACEY, OCEAN COUNTY, Respondent. ______________________________ J.S., petitioner, pro se Steven Tedeschi, Esq., for respondent (Stein and Supsie, attorneys) Record Closed: August 1, 2019 Decided: September 5, 2019 BEFORE PATRICIA M. KERINS, ALJ: STATEMENT OF THE CASE Petitioner J.S., now an adult, appeals from respondent Lacey Township Board of Education’s (Lacey) finding that she committed an act of HIB when, after another student
2 started singing in music class, she plugged her ears and allegedly said, “I’m going to need ear plugs to get through this part of the concert,”. PROCEDURAL HISTORY By petition dated February 5, 2015, petitioner C.S., on behalf of his then minor daughter, J.S. filed this appeal of the determination by Lacey that J.S. had committed an act of HIB. The matter was transmitted to the Office of Administrative Law (OAL) on March 18, 2015, for hearing 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. The parties then engaged in extensive motion and discovery practice, and numerous status and prehearing conferences were conducted. On March 18, 2019, respondent filed a motion for Summary Decision and by letter of April 30, 2019, J.S. replied to the motion and requested that the matter be decided by summary decision. Oral argument was held, and the record closed on August 1, 2019. STATEMENT OF FACTS On May 1, 2014, in Stephanie Faille’s (Faille) music class at Lacey Township High School, an incident occurred involving two eleventh grade students — J.S. and C.H., both female—who had once had a close personal relationship. For the first ten fifteen minutes of class, all the students (about twenty) were gathered around the piano, singing together as Faille played. Then the class paused for C.H.’s solo vocal. In a Discipline Report completed the next day, Faille recounted that: “[J.S.] was making harassing gestures while [C.H.] was singing her solo. She made the student feel so uncomfortable she moved to the back of the room.” The “harassing gestures” was the act of placing her fingers in her ears. In a HIB Report, also completed that day, Faille described the scene this way: [C.H.] was singing a solo with the group and while her solo was going on [J.S.] was mocking her and talking to those around her in a harassing way. [C.H.] saw what [J.S.] was
3 doing and saying and moved to the back of the room to get away from the sneers and was noticeably upset by the interaction. I had spoken with [J.S.] before she went on homebound about not staring or glaring at [C.H.] during class because [C.H.] had expressed to me that it makes her feel really uncomfortable. [J.S.] got upset that I mentioned it to her and left my office. The HIB Investigation HIB Team Members Kevin Donahue and Paul O’Neill launched an investigation. They interviewed both girls and one unidentified witness, later memorializing those interviews in narrative summaries on statement forms. It appears they did not interview. Faille and instead relied on her statement in the HIB Report because it is reproduced in a statement form under her name without any new information. Interview of J.S. In her interview, “[J.S.] claimed that she had trouble with her ears and would often plug one of them so that she could hear herself sing.” When asked about why she did this right after C.H. began singing, “[J.S.] stated that her actions had nothing to do with [C.H.].” This is the extent of the interview as reflected in the narrative summary. J.S. later produced a document dated May 16, 2014, from Sean D. Houston, M.D., with whom she treated from January 2013 to April 2014.3 He explained that her “sensitivity to noise and sound is documented by our office prior to this event.” He concluded therefore that her reaction was “reasonable,” and in his medical opinion, “related to her noise sensitivity and not due to a social/bullying issue.” Interview of C.H. 3 In her letter dated April 30, 2019, J.S. says that she has treated with Dr. Houston since she was “a young girl.” His report, however, identifies only the above-mentioned treatment period.
4 Her interview focused more broadly on her relationship with J.S., and there is no mention of the alleged incident in the narrative summary. C.H. said that she dated J.S., who ended their relationship after five months. She believed that J.S. was “trying to turn her against her family and friends.” For example, J.S. would limit who she could talk to, sometimes physically removing her from conversations, all of which made her feel “sad.” For a time after their breakup, the girls continued to hang out as “best friends.” That ended, however, when C.H. realized that J.S. was “nutty.” She started to distance herself, which J.S. had a hard time accepting. She would follow her around school and had at least once, lingered around her house and commented on her social media. This school year, C.H. said that she and J.S. had lunch and music class together. On the day of the incident, which was also opening night for the concert, C.H. did not know that J.S. would be returning to school, making things awkward. During lunch, J.S. stared at her “like she always does,” and when she moved, J.S. also moved to get back in her line of vision. C.H. recounted two recent episodes at school events where both her sisters had confronted J.S. about her actions, including about allegedly taking pictures of C.H. She also recently received a candygram, which she suspected was from J.S. In the end, C.H. did not anticipate talking to J.S. in the future, but she thought that J.S. “may still want to be with her romantically.” Interview of Unidentified Witness It is not clear whether this student was in Faille’s class, but the student did know both girls. The student and C.H. had been getting closer, and J.S. would speak about this to the student. She would tell the student that C.H. told her that she still had feelings for her. She would also say that she thought C.H. “is pretending not to love her and using
5 her parents as an excuse.” The student said that J.S. had a hard time when C.H. would show affection toward others. The HIB Investigation Report The HIB Investigation Report was submitted by Principal James Handschuch to Superintendent Dr. Sandra Brower on May 16 and affirmed on May 27, 2014. The Report concluded that J.S. committed an act of HIB when she “made a gesture to [C.H.] that was done to harass and intimidate her. [J.S.] also continues to discuss [C.H.] after she has been instructed multiple times to end their relationship.” The consequence imposed was a “schedule change.” On May 19, 2014, three days after the HIB Investigation Report was submitted, Donahue emailed Faille, asking if she remembered “any specifics that [J.S.] said when she put her fingers in her ears.” He also asked if other people witnessed the incident. She responded in full: “[J.S.] put her fingers in her ears while [C.H.] was singing her solo and said I’m going to need earplugs to get through this song at the concert.” This is the first documented mention of this comment. This email exchange and Dr. Houston’s report become a part of the HIB Investigation Report. Following the investigation, during a telephone conference call with several school officials, J.S. and her father, C.S., were told of the HIB finding. C.S. was also notified of the same by letter dated June 20, 2014. He timely requested a hearing before the Board of Education. Board Meeting and Report Through a Committee, the Board of Education held a hearing on this matter on September 3, 2014. The Committee later issued a written report in which it summarized the hearing and made certain findings of facts. The following information is drawn exclusively from that report.
6 Handschuch, Faille and O’Neill were present at the hearing to answer any questions. It is not clear to what extent any of them testified, but Faille and O’Neill likely did because there are details in the Committee Report that cannot be found in the HIB Investigation Report or C.S.’s testimony. While J.S. did not attend the hearing or testify, her father did attend, and he testified but did not offer any other witnesses. C.S. said that the girls previously had a relationship, which he labeled an affair. He testified, however, that there were no problems between the girls—any problem was between the families. He offered as exhibits text messages exchanged between himself and C.H.’s parents in which there is no shortage of hostility. His testimony focused mainly on explaining away his daughter’s gesture and disputing the alleged comment. He opined that she plugged her ears because C.H. is a loud singer and she is sensitive to loud noises. For evidence of this, he cited the fact that J.S. wears headphones in the car to drown out noise from the tires. He also cited Dr. Houston’s May 16, 2014 report, which confirmed her treatment for noise sensitivity. Regarding the alleged comment, C.S. testified that on the conference call following the investigation, he was told that J.S. had not made any comments.4 The Committee discounted Dr. Houston’s report because it postdated the incident and J.S.’s treatment with him. It also found that the report amounted to a “net opinion” because it did not include facts about the incident. Neither did the Committee credit C.S.’s explanation—that J.S. plugged her ears to protect her hearing—because, when the entire class was singing together before C.H. started her solo, there was “no allegation or claim that [J.S.] made any movement to protect her hearing or her ears with her fingers or by any other means.” More generally, the Committee noted that during concerts, sounds will reverberate toward the singers, and J.S. had “never expressed any concern about her hearing or the effect of that reverberating sound on her own hearing.” 4 In her letter dated April 30, 2019, J.S. admits that she covered her ear because C.H. “has a beautiful, loud and distinctive tone that caused my ear to hurt.” She emphasizes, however, that “I have never stuck my finger in my ear, nor did I say anything derogatory towards [C.H.] at the time of this incident.”
7 Regarding the alleged comment, the Committee found that “Mr. O’Neill, who was part of the conversation with [C.S.] upon the conclusion of the investigation . . . does not recall [C.S.] being informed that [J.S.] said nothing when she placed her fingers in her ears.” In its report, the Committee found that the girls were standing around the piano, five feet from one another, and once C.H. started her solo, J.S. “placed her fingers in her ears and was heard to say, ‘I’m going to need ear plugs to get through this part of the concert.’”5 Relying on Faille’s observations, the Committee also found that C.H. saw what J.S. was doing, and then “appeared to physically shrink in posture and removed herself from where the students were gathered around the piano and moved to the back of the class to be by herself” for the remainder of class. Regarding her alleged motivation, the Committee found that “[J.S.] targeted [C.H.] who she viewed as a weaker and emotionally vulnerable female with [J.S.] having a perception of a characteristic of [C.H.] relating to sexual orientation.” “It is unknown if the perception is accurate and for purposes of this investigation and the Committee’s finding, such determination is not necessary as being motivated by a perceived characteristic that substantially disrupts or interferes with the right of another student is sufficient to justify a finding or harassment intimidation or bullying.” Based on these findings, the Committee recommended that the full Board vote to affirm the Superintendent’s HIB finding, which it did at its September 15, 2014 meeting. LEGAL DISCUSSION Summary Decision Standard Under the Uniform Administrative Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6, which govern the conduct of contested cases before the OAL, a party may file a motion 5 Note that this is slightly different than the comment Faille described in her email: “I’m going to need earplugs to get through this song at the concert.”
8 for summary decision on substantive issues in a contested case. N.J.A.C. 1:1-12.5(a). The motion “shall be served with briefs and with or without supporting affidavits.” N.J.A.C. 1:1-12.5(b). Under this regulation, which is akin to the judiciary’s motion for summary judgment, see R. 4:46-1, “the determination [of] whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995). In making this determination, the analysis is “‘whether the evidence presents a sufficient disagreement to require submission to a [fact finder] or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 533 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Summary decision is also proper when the opposing party “points only to disputed issues of fact that are ‘of an insubstantial nature.’” Id. at 529. Standard of Review An action by a board of education “is entitled to a presumption of correctness and will not be upset unless there is an affirmative showing that such decision was arbitrary, capricious or unreasonable.” Thomas v. Morris Twp. Bd. of Educ., 89 N.J. Super. 327, 332 (App. Div. 1965). Thus, in order to prevail, those challenging an HIB decision made by a board of education “must demonstrate that the Board acted in bad faith, or in utter disregard of the circumstances before it.” G.H. & E.H. o/b/o K.H. v. Bd. of Educ. of Franklin Lakes, EDU 13204-13, Initial Decision (February 24, 2014), adopted, Comm’r (April 10, 2014), http://njlaw.rutgers.edu/collections/oal/. Also, a board’s decision may be overturned if its determination violates the legislative policies expressed or implied in the governing act. J.A.H. o/b/o C.H. v. Twp. of Pittsgrove Bd. of Educ., EDU 10826-12, Initial Decision (March 11, 2013), adopted, Comm’r (April 25, 2013), http://njlaw.rutgers.edu/collections/oal/.
9 HIB Regulations Under the Anti-Bullying Bill of Rights Act, “harassment, intimidation or bullying” is broadly defined as: 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 schoolsponsored 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. [N.J.S.A. 18A:37-14 (emphasis added).] First, to satisfy the statutory definition of HIB, the conduct must be “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.” N.J.S.A. 18A:37-14. “The statute has not limited ‘distinguishing characteristic’ to those specifically enumerated, but it has consistently required such a
10 perceived motivation.” K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 351 (App. Div. 2011). “The Legislature in the Anti-Bullying Act intentionally included a very open- ended phrase, ‘any other distinguishing characteristic,’ to signal that the Act would apply to a broad, unlimited range of distinguishing characteristics, so long as the distinguishing characteristic motivated the bully to harass the targeted student.” L.P. and H.P. o/b/o. L.P., EDU 04462-16, Initial Decision (June 10, 2016), adopted, Comm’r (July 25, 2016), http://njlaw.rutgers.edu/collections/oal/. However, the Appellate Division has made clear that “harmful or demeaning conduct motivated only by another reason, for example, a dispute about relationships or personal belongings, or aggressive conduct without identifiable motivation, does not come within the statutory definition of bullying.” K.L., 423 N.J. Super. at 351. Here, the Board found that J.S.’s conduct while C.H. was singing—a gesture (placing her fingers in her ears) and comment (“I’m going to need ear plugs to get through this part of the concert”)—constituted an act of HIB. It is undisputed that J.S. obstructed at least one of her ears. The Committee found that she placed fingers in both of her ears. She maintains, however, that she covered (not plugged) only one ear. Either way, the effect was the same. The comment, however, is disputed. In the Discipline Report and HIB Report, both completed the day after the incident, Faille did not mention this comment. Neither is there a reference to this comment in the HIB Investigation Report. It is documented for the first time in an e-mail three days after the HIB Investigation Report was completed and submitted to the Superintendent. Thus, the girls and the third-party witness were not asked about this comment in their interviews. Further, at the hearing before the Committee, J.S.’s father disputed that she made such a comment. And J.S. continues to maintain that she did not say anything derogatory about C.H. In any event, even accepting the Board’s finding as true, its ultimate HIB finding must nevertheless be overturned. To satisfy the “threshold requirement,” J.S.’s conduct must be “reasonably perceived as being motivated either by any actual or perceived characteristic.” C.K. and M.K. o/b/o M.K. v. Voorhees Twp. Bd. of Edu., EDU 20510-15,
11 Comm’r (March 23, 2017), https://njlaw.rutgers.edu/collections/oal/. “Absence of this factor, alone, is sufficient to render a finding of no HIB.” Ibid. In this matter the HIB Investigation Report did not identify a distinguishing characteristic that motivated J.S.’s conduct. In its report, however, the Committee found that J.S. had “a perception of a characteristic of [C.H.] relating to sexual orientation.” While sexual orientation is an enumerated characteristic under N.J.S.A. 18A:37-14, the Board then went on to discount it stating that it was “unknown if the perception is accurate and . . .such determination is not necessary”. Simply put, the finding was unclear the characteristic upon which the Board was basing its HIB finding. While referencing sexual orientation, it appeared to base its finding on its characterization of C.H. as a weaker and vulnerable female. However, there was insufficient evidence presented in the record as set forth by Lacey to even determine whether the alleged characteristic of “a weaker and emotionally vulnerable female” applied to C.H. Yet even granting that the Board based its HIB determination on either sexual orientation or C.H. being a weak and vulnerable female, there was no factual showing that either characteristic motivated J.S.’ denigration of her singing. The fact that C.H. had a distinguishing characteristic is not, by itself, enough to support a finding that demeaning conduct directed at her was motivated by that characteristic. There must be something more linking the conduct to the characteristic, and that link is notably absent here. Nothing in J.S.’ alleged conduct during the chorus class at issue raised the issue of sexual orientation or “a perception related to a sexual characteristic”, nor were the alleged words or actions tied to C.H.’s purported status as a weaker and emotionally vulnerable female. Rather the conduct complained of here related to C.H.’s singing. While J.S.’ alleged conduct may have been rude or inappropriate and may have warranted some form of censure or discipline, nothing in her alleged words or actions in that particular instance tied it to sexual orientation or status as a weaker female. Rather, the conduct complained of here appears to have arisen out of the girls’ past personal relationship. It is undisputed that they were close personal friends, with the Committee characterizing it as a “relationship of some kind with some form of undetailed intimate characteristics. The record was replete with the ups and downs of the girls’
12 relationship which arguably was the real motivating factor in the conduct complained of in the HIB complaint. However, as noted by the Court in K.L., conduct arising out of a dispute over something such as a relationship, does not without more rise to the level of an HIB violation. CONCLUSION Based on the above, the Board’s motion for summary decision is denied. petitioner’s cross-motion for summary decision is granted. ORDER Petitioner’s cross motion for summary decision is GRANTED and respondent’s motion for summary decision is DENIED. It is hereby ORDERED that respondent’s finding of HIB against petitioner J.S. is REVERSED. I hereby FILE this initial decision with the COMMISSIONER OF THE DEPARTMENT OF EDUCATION for consideration. This recommended decision may be adopted, modified or rejected by the COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized to make a final decision in this matter. If the Commissioner of the Department of Education does not adopt, modify or reject this decision within forty-five days and unless such time limit is otherwise extended, this recommended decision shall become a final decision in accordance with N.J.S.A. 52:14B-10. Within thirteen days from the date on which this recommended decision was mailed to the parties, any party may file written exceptions with the COMMISSIONER OF THE DEPARTMENT OF EDUCATION, ATTN: BUREAU OF CONTROVERSIES AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
13 0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to the judge and to the other parties. September 5, 2019 DATE PATRICIA M. KERINS, ALJ Date Received at Agency: September 5, 2019 (emailed) Date Mailed to Parties: /mel
1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
270-19 New Jersey Commissioner of Education Final Decision C.S. on behalf of minor child, J.S., Petitioner, V. Board of Education of the Township of Lacey, Ocean County, Respondent. Synopsis Petitioner, now an adult, appealed the determination of the Lacey Township Board of Education that she committed an act of harassment, intimidation and bullying (HIB) in May 2014 when she reacted to a fellow student's vocal performance in music class by plugging her ears and allegedly saying "I'm going to need ear plugs to get through this part of the concert." The Board contended that it had properly conducted an HIB investigation and based its finding on two potential distinguishing characteristics when it determined that J.S. had committed an act of HIB against fellow student, C.H. Petitioner claimed that she had trouble with noise hypersensitivity, and that her actions had nothing to do with C.H. The parties filed opposing motions for summary decision. The ALJ found, inter alia, that: there are no genuine issues of material fact here, and the matter is ripe for summary decision; an action by a board of education is entitled to a presumption of correctness unless it is proven to be arbitrary, capricious or unreasonable; under New Jersey's Anti-Bullying Bill of Rights Act (Act), "harassment, intimidation, or bullying" is broadly defined as any gesture, any written, verbal, or physical act, or any electronic communication that is reasonably perceived as motivated by any actual or perceived distinguishing characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical, or sensory disability, that takes place on school property and substantially disrupts the orderly operation of the school; in the instant case, the Board found that J.S.'s conduct while C.H. was singing - i.e., plugging or covering her ears, and allegedly making a derogatory comment - constituted an act of HIB; however, the alleged conduct did not satisfy the threshold requirement of being motivated by a distinguishing characteristic, and instead appeared to be motivated by a past relationship between J.S. and C.H. The ALJ concluded that J.S.'s alleged conduct did not constitute a HIB violation. Accordingly, the ALJ denied the Board's motion for summary decision and granted the petitioner's cross motion for summary decision. The Board's determination of HIB was reversed. Upon review, the Commissioner concurred with the ALJ's findings and conclusion, and adopted the Initial Decision of the OAL as the final decision in this matter. 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. October 16, 2019 OAL Dkt. No. EDU 03693-15 Agency Dkt. No. 34-2/15 New Jersey Commissioner of Education Final Decision The record of this matter and the Initial Decision of the Office of Administrative Law (OAL) have been reviewed, as have the exceptions filed by the Board pursuant to N.J.A.C. 1:1-18.4, and petitioner’s reply thereto. This matter stems from an incident that occurred on May 1, 2014, when J.S. allegedly plugged her ears, made gestures, and possibly made a comment about needing earplugs, while another student, C.H., was singing a solo in music class. J.S. and C.H. previously had a close personal relationship that had ended. Following an investigation, the Board found that J.S. had committed an act of harassment, intimidation and bullying (HIB), pursuant to the Anti-Bullying Bill of Rights Act (Act), N.J.S.A. 18A:37- 13 et seq. Petitioner filed an appeal on behalf of J.S.,1 challenging the Board’s finding of a HIB violation. The Administrative Law Judge (ALJ) reversed the Board’s determination and concluded that the alleged conduct did not constitute a HIB violation. The ALJ found that the alleged conduct did not meet the threshold requirement of being motivated by a distinguishing characteristic. While the Board sets forth two potential distinguishing characteristics – C.H.’s perceived sexual orientation or that C.H. is a weaker and more vulnerable female – the ALJ found that it was unclear on which characteristic 1 The Commissioner notes that J.S. is no longer a minor and is now pursing this case on her own behalf. C.S., on behalf of minor child, J.S., Petitioner, v. Board of Education of the Township of Lacey, Ocean County, Respondent. the Board was basing its finding, and that there was insufficient evidence presented in the record that C.H. 1 is weaker or more emotionally vulnerable. Even if the Board had established a distinguishing characteristic, the ALJ found that there was no link between the distinguishing characteristic and the alleged conduct to establish that the conduct was motivated by the characteristic. The ALJ noted that, instead, the actions in this matter appear to have been motivated by the girls’ past relationship, and that pursuant to K.L. v. Evesham Township Board of Education, 423 N.J. Super. 337, 351 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012), “harmful or demeaning conduct motivated only by another reason, for example, a dispute about relationships or personal belongings, or aggressive conduct without identifiable motivation, does not come within the statutory definition of bullying.” Upon a comprehensive review of the record, the Commissioner agrees with the ALJ that the alleged conduct – plugging her ears and making gestures or a comment about needing earplugs – did not meet the statutory definition of HIB. The Commissioner further concurs that the alleged conduct appears to stem from the students’ past relationship and was not motivated by an actual or perceived distinguishing characteristic of C.H. The Board’s exceptions do not challenge the ALJ’s conclusion that the finding of HIB against J.S. is reversed. Finally, the Commissioner notes that the Board argues that the Initial Decision should have addressed petitioner’s claim for monetary relief. However, there is no legal authority for petitioner to recover damages in this forum. Accordingly, the Initial Decision of the OAL is adopted as the final decision in this matter, for the reasons thoroughly set forth in the Initial Decision. IT IS SO ORDERED.2 COMMISSIONER OF EDUCATION 2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36 (N.J.S.A 18A:6-9.1). Date of Decision: Date of Mailing: October 16, 2019 October 17, 2019 2 1 State of New Jersey OFFICE OF ADMINISTRATIVE LAW INITIAL DECISION GRANTING CROSS MOTION FOR SUMMARY DECISION OAL DKT. NO. EDU 03693-15 AGENCY DKT. NO. 34-2/15 C.S., ON BEHALF OF MINOR CHILD, J.S., Petitioner, v. LACEY BOARD OF EDUCATION OF THE TOWNSHIP OF LACEY, OCEAN COUNTY, Respondent. ______________________________ J.S., petitioner, pro se Steven Tedeschi, Esq., for respondent (Stein and Supsie, attorneys) Record Closed: August 1, 2019 Decided: September 5, 2019 BEFORE PATRICIA M. KERINS, ALJ: STATEMENT OF THE CASE Petitioner J.S., now an adult, appeals from respondent Lacey Township Board of Education’s (Lacey) finding that she committed an act of HIB when, after another student 2 started singing in music class, she plugged her ears and allegedly said, “I’m going to need ear plugs to get through this part of the concert,”. PROCEDURAL HISTORY By petition dated February 5, 2015, petitioner C.S., on behalf of his then minor daughter, J.S. filed this appeal of the determination by Lacey that J.S. had committed an act of HIB. The matter was transmitted to the Office of Administrative Law (OAL) on March 18, 2015, for hearing 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. The parties then engaged in extensive motion and discovery practice, and numerous status and prehearing conferences were conducted. On March 18, 2019, respondent filed a motion for Summary Decision and by letter of April 30, 2019, J.S. replied to the motion and requested that the matter be decided by summary decision. Oral argument was held, and the record closed on August 1, 2019. STATEMENT OF FACTS On May 1, 2014, in Stephanie Faille’s (Faille) music class at Lacey Township High School, an incident occurred involving two eleventh grade students — J.S. and C.H., both female—who had once had a close personal relationship. For the first ten fifteen minutes of class, all the students (about twenty) were gathered around the piano, singing together as Faille played. Then the class paused for C.H.’s solo vocal. In a Discipline Report completed the next day, Faille recounted that: “[J.S.] was making harassing gestures while [C.H.] was singing her solo. She made the student feel so uncomfortable she moved to the back of the room.” The “harassing gestures” was the act of placing her fingers in her ears. In a HIB Report, also completed that day, Faille described the scene this way: [C.H.] was singing a solo with the group and while her solo was going on [J.S.] was mocking her and talking to those around her in a harassing way. [C.H.] saw what [J.S.] was 3 doing and saying and moved to the back of the room to get away from the sneers and was noticeably upset by the interaction. I had spoken with [J.S.] before she went on homebound about not staring or glaring at [C.H.] during class because [C.H.] had expressed to me that it makes her feel really uncomfortable. [J.S.] got upset that I mentioned it to her and left my office. The HIB Investigation HIB Team Members Kevin Donahue and Paul O’Neill launched an investigation. They interviewed both girls and one unidentified witness, later memorializing those interviews in narrative summaries on statement forms. It appears they did not interview. Faille and instead relied on her statement in the HIB Report because it is reproduced in a statement form under her name without any new information. Interview of J.S. In her interview, “[J.S.] claimed that she had trouble with her ears and would often plug one of them so that she could hear herself sing.” When asked about why she did this right after C.H. began singing, “[J.S.] stated that her actions had nothing to do with [C.H.].” This is the extent of the interview as reflected in the narrative summary. J.S. later produced a document dated May 16, 2014, from Sean D. Houston, M.D., with whom she treated from January 2013 to April 2014.3 He explained that her “sensitivity to noise and sound is documented by our office prior to this event.” He concluded therefore that her reaction was “reasonable,” and in his medical opinion, “related to her noise sensitivity and not due to a social/bullying issue.” Interview of C.H. 3 In her letter dated April 30, 2019, J.S. says that she has treated with Dr. Houston since she was “a young girl.” His report, however, identifies only the above-mentioned treatment period. 4 Her interview focused more broadly on her relationship with J.S., and there is no mention of the alleged incident in the narrative summary. C.H. said that she dated J.S., who ended their relationship after five months. She believed that J.S. was “trying to turn her against her family and friends.” For example, J.S. would limit who she could talk to, sometimes physically removing her from conversations, all of which made her feel “sad.” For a time after their breakup, the girls continued to hang out as “best friends.” That ended, however, when C.H. realized that J.S. was “nutty.” She started to distance herself, which J.S. had a hard time accepting. She would follow her around school and had at least once, lingered around her house and commented on her social media. This school year, C.H. said that she and J.S. had lunch and music class together. On the day of the incident, which was also opening night for the concert, C.H. did not know that J.S. would be returning to school, making things awkward. During lunch, J.S. stared at her “like she always does,” and when she moved, J.S. also moved to get back in her line of vision. C.H. recounted two recent episodes at school events where both her sisters had confronted J.S. about her actions, including about allegedly taking pictures of C.H. She also recently received a candygram, which she suspected was from J.S. In the end, C.H. did not anticipate talking to J.S. in the future, but she thought that J.S. “may still want to be with her romantically.” Interview of Unidentified Witness It is not clear whether this student was in Faille’s class, but the student did know both girls. The student and C.H. had been getting closer, and J.S. would speak about this to the student. She would tell the student that C.H. told her that she still had feelings for her. She would also say that she thought C.H. “is pretending not to love her and using 5 her parents as an excuse.” The student said that J.S. had a hard time when C.H. would show affection toward others. The HIB Investigation Report The HIB Investigation Report was submitted by Principal James Handschuch to Superintendent Dr. Sandra Brower on May 16 and affirmed on May 27, 2014. The Report concluded that J.S. committed an act of HIB when she “made a gesture to [C.H.] that was done to harass and intimidate her. [J.S.] also continues to discuss [C.H.] after she has been instructed multiple times to end their relationship.” The consequence imposed was a “schedule change.” On May 19, 2014, three days after the HIB Investigation Report was submitted, Donahue emailed Faille, asking if she remembered “any specifics that [J.S.] said when she put her fingers in her ears.” He also asked if other people witnessed the incident. She responded in full: “[J.S.] put her fingers in her ears while [C.H.] was singing her solo and said I’m going to need earplugs to get through this song at the concert.” This is the first documented mention of this comment. This email exchange and Dr. Houston’s report become a part of the HIB Investigation Report. Following the investigation, during a telephone conference call with several school officials, J.S. and her father, C.S., were told of the HIB finding. C.S. was also notified of the same by letter dated June 20, 2014. He timely requested a hearing before the Board of Education. Board Meeting and Report Through a Committee, the Board of Education held a hearing on this matter on September 3, 2014. The Committee later issued a written report in which it summarized the hearing and made certain findings of facts. The following information is drawn exclusively from that report. 6 Handschuch, Faille and O’Neill were present at the hearing to answer any questions. It is not clear to what extent any of them testified, but Faille and O’Neill likely did because there are details in the Committee Report that cannot be found in the HIB Investigation Report or C.S.’s testimony. While J.S. did not attend the hearing or testify, her father did attend, and he testified but did not offer any other witnesses. C.S. said that the girls previously had a relationship, which he labeled an affair. He testified, however, that there were no problems between the girls—any problem was between the families. He offered as exhibits text messages exchanged between himself and C.H.’s parents in which there is no shortage of hostility. His testimony focused mainly on explaining away his daughter’s gesture and disputing the alleged comment. He opined that she plugged her ears because C.H. is a loud singer and she is sensitive to loud noises. For evidence of this, he cited the fact that J.S. wears headphones in the car to drown out noise from the tires. He also cited Dr. Houston’s May 16, 2014 report, which confirmed her treatment for noise sensitivity. Regarding the alleged comment, C.S. testified that on the conference call following the investigation, he was told that J.S. had not made any comments.4 The Committee discounted Dr. Houston’s report because it postdated the incident and J.S.’s treatment with him. It also found that the report amounted to a “net opinion” because it did not include facts about the incident. Neither did the Committee credit C.S.’s explanation—that J.S. plugged her ears to protect her hearing—because, when the entire class was singing together before C.H. started her solo, there was “no allegation or claim that [J.S.] made any movement to protect her hearing or her ears with her fingers or by any other means.” More generally, the Committee noted that during concerts, sounds will reverberate toward the singers, and J.S. had “never expressed any concern about her hearing or the effect of that reverberating sound on her own hearing.” 4 In her letter dated April 30, 2019, J.S. admits that she covered her ear because C.H. “has a beautiful, loud and distinctive tone that caused my ear to hurt.” She emphasizes, however, that “I have never stuck my finger in my ear, nor did I say anything derogatory towards [C.H.] at the time of this incident.” 7 Regarding the alleged comment, the Committee found that “Mr. O’Neill, who was part of the conversation with [C.S.] upon the conclusion of the investigation . . . does not recall [C.S.] being informed that [J.S.] said nothing when she placed her fingers in her ears.” In its report, the Committee found that the girls were standing around the piano, five feet from one another, and once C.H. started her solo, J.S. “placed her fingers in her ears and was heard to say, ‘I’m going to need ear plugs to get through this part of the concert.’”5 Relying on Faille’s observations, the Committee also found that C.H. saw what J.S. was doing, and then “appeared to physically shrink in posture and removed herself from where the students were gathered around the piano and moved to the back of the class to be by herself” for the remainder of class. Regarding her alleged motivation, the Committee found that “[J.S.] targeted [C.H.] who she viewed as a weaker and emotionally vulnerable female with [J.S.] having a perception of a characteristic of [C.H.] relating to sexual orientation.” “It is unknown if the perception is accurate and for purposes of this investigation and the Committee’s finding, such determination is not necessary as being motivated by a perceived characteristic that substantially disrupts or interferes with the right of another student is sufficient to justify a finding or harassment intimidation or bullying.” Based on these findings, the Committee recommended that the full Board vote to affirm the Superintendent’s HIB finding, which it did at its September 15, 2014 meeting. LEGAL DISCUSSION Summary Decision Standard Under the Uniform Administrative Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6, which govern the conduct of contested cases before the OAL, a party may file a motion 5 Note that this is slightly different than the comment Faille described in her email: “I’m going to need earplugs to get through this song at the concert.” 8 for summary decision on substantive issues in a contested case. N.J.A.C. 1:1-12.5(a). The motion “shall be served with briefs and with or without supporting affidavits.” N.J.A.C. 1:1-12.5(b). Under this regulation, which is akin to the judiciary’s motion for summary judgment, see R. 4:46-1, “the determination [of] whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995). In making this determination, the analysis is “‘whether the evidence presents a sufficient disagreement to require submission to a [fact finder] or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 533 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Summary decision is also proper when the opposing party “points only to disputed issues of fact that are ‘of an insubstantial nature.’” Id. at 529. Standard of Review An action by a board of education “is entitled to a presumption of correctness and will not be upset unless there is an affirmative showing that such decision was arbitrary, capricious or unreasonable.” Thomas v. Morris Twp. Bd. of Educ., 89 N.J. Super. 327, 332 (App. Div. 1965). Thus, in order to prevail, those challenging an HIB decision made by a board of education “must demonstrate that the Board acted in bad faith, or in utter disregard of the circumstances before it.” G.H. & E.H. o/b/o K.H. v. Bd. of Educ. of Franklin Lakes, EDU 13204-13, Initial Decision (February 24, 2014), adopted, Comm’r (April 10, 2014), http://njlaw.rutgers.edu/collections/oal/. Also, a board’s decision may be overturned if its determination violates the legislative policies expressed or implied in the governing act. J.A.H. o/b/o C.H. v. Twp. of Pittsgrove Bd. of Educ., EDU 10826-12, Initial Decision (March 11, 2013), adopted, Comm’r (April 25, 2013), http://njlaw.rutgers.edu/collections/oal/. 9 HIB Regulations Under the Anti-Bullying Bill of Rights Act, “harassment, intimidation or bullying” is broadly defined as: 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 schoolsponsored 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. [N.J.S.A. 18A:37-14 (emphasis added).] First, to satisfy the statutory definition of HIB, the conduct must be “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.” N.J.S.A. 18A:37-14. “The statute has not limited ‘distinguishing characteristic’ to those specifically enumerated, but it has consistently required such a 10 perceived motivation.” K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 351 (App. Div. 2011). “The Legislature in the Anti-Bullying Act intentionally included a very open- ended phrase, ‘any other distinguishing characteristic,’ to signal that the Act would apply to a broad, unlimited range of distinguishing characteristics, so long as the distinguishing characteristic motivated the bully to harass the targeted student.” L.P. and H.P. o/b/o. L.P., EDU 04462-16, Initial Decision (June 10, 2016), adopted, Comm’r (July 25, 2016), http://njlaw.rutgers.edu/collections/oal/. However, the Appellate Division has made clear that “harmful or demeaning conduct motivated only by another reason, for example, a dispute about relationships or personal belongings, or aggressive conduct without identifiable motivation, does not come within the statutory definition of bullying.” K.L., 423 N.J. Super. at 351. Here, the Board found that J.S.’s conduct while C.H. was singing—a gesture (placing her fingers in her ears) and comment (“I’m going to need ear plugs to get through this part of the concert”)—constituted an act of HIB. It is undisputed that J.S. obstructed at least one of her ears. The Committee found that she placed fingers in both of her ears. She maintains, however, that she covered (not plugged) only one ear. Either way, the effect was the same. The comment, however, is disputed. In the Discipline Report and HIB Report, both completed the day after the incident, Faille did not mention this comment. Neither is there a reference to this comment in the HIB Investigation Report. It is documented for the first time in an e-mail three days after the HIB Investigation Report was completed and submitted to the Superintendent. Thus, the girls and the third-party witness were not asked about this comment in their interviews. Further, at the hearing before the Committee, J.S.’s father disputed that she made such a comment. And J.S. continues to maintain that she did not say anything derogatory about C.H. In any event, even accepting the Board’s finding as true, its ultimate HIB finding must nevertheless be overturned. To satisfy the “threshold requirement,” J.S.’s conduct must be “reasonably perceived as being motivated either by any actual or perceived characteristic.” C.K. and M.K. o/b/o M.K. v. Voorhees Twp. Bd. of Edu., EDU 20510-15, 11 Comm’r (March 23, 2017), https://njlaw.rutgers.edu/collections/oal/. “Absence of this factor, alone, is sufficient to render a finding of no HIB.” Ibid. In this matter the HIB Investigation Report did not identify a distinguishing characteristic that motivated J.S.’s conduct. In its report, however, the Committee found that J.S. had “a perception of a characteristic of [C.H.] relating to sexual orientation.” While sexual orientation is an enumerated characteristic under N.J.S.A. 18A:37-14, the Board then went on to discount it stating that it was “unknown if the perception is accurate and . . .such determination is not necessary”. Simply put, the finding was unclear the characteristic upon which the Board was basing its HIB finding. While referencing sexual orientation, it appeared to base its finding on its characterization of C.H. as a weaker and vulnerable female. However, there was insufficient evidence presented in the record as set forth by Lacey to even determine whether the alleged characteristic of “a weaker and emotionally vulnerable female” applied to C.H. Yet even granting that the Board based its HIB determination on either sexual orientation or C.H. being a weak and vulnerable female, there was no factual showing that either characteristic motivated J.S.’ denigration of her singing. The fact that C.H. had a distinguishing characteristic is not, by itself, enough to support a finding that demeaning conduct directed at her was motivated by that characteristic. There must be something more linking the conduct to the characteristic, and that link is notably absent here. Nothing in J.S.’ alleged conduct during the chorus class at issue raised the issue of sexual orientation or “a perception related to a sexual characteristic”, nor were the alleged words or actions tied to C.H.’s purported status as a weaker and emotionally vulnerable female. Rather the conduct complained of here related to C.H.’s singing. While J.S.’ alleged conduct may have been rude or inappropriate and may have warranted some form of censure or discipline, nothing in her alleged words or actions in that particular instance tied it to sexual orientation or status as a weaker female. Rather, the conduct complained of here appears to have arisen out of the girls’ past personal relationship. It is undisputed that they were close personal friends, with the Committee characterizing it as a “relationship of some kind with some form of undetailed intimate characteristics. The record was replete with the ups and downs of the girls’ 12 relationship which arguably was the real motivating factor in the conduct complained of in the HIB complaint. However, as noted by the Court in K.L., conduct arising out of a dispute over something such as a relationship, does not without more rise to the level of an HIB violation. CONCLUSION Based on the above, the Board’s motion for summary decision is denied. petitioner’s cross-motion for summary decision is granted. ORDER Petitioner’s cross motion for summary decision is GRANTED and respondent’s motion for summary decision is DENIED. It is hereby ORDERED that respondent’s finding of HIB against petitioner J.S. is REVERSED. I hereby FILE this initial decision with the COMMISSIONER OF THE DEPARTMENT OF EDUCATION for consideration. This recommended decision may be adopted, modified or rejected by the COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized to make a final decision in this matter. If the Commissioner of the Department of Education does not adopt, modify or reject this decision within forty-five days and unless such time limit is otherwise extended, this recommended decision shall become a final decision in accordance with N.J.S.A. 52:14B-10. Within thirteen days from the date on which this recommended decision was mailed to the parties, any party may file written exceptions with the COMMISSIONER OF THE DEPARTMENT OF EDUCATION, ATTN: BUREAU OF CONTROVERSIES AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625- 13 0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to the judge and to the other parties. September 5, 2019 DATE PATRICIA M. KERINS, ALJ Date Received at Agency: September 5, 2019 (emailed) Date Mailed to Parties: /mel
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