C.S., on behalf of minor child, J.S. V. Lacey Township Board of Education, 10/16/19, (#270-19)

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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

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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