A.J., on behalf of minor child, J.J. v. Board of Education of the Town of Boonton, Morris County, 7/10/2020, (#145-20)

145-20
New Jersey Commissioner of Education
Final Decision
A.J., on behalf of minor child, J.J.,
Petitioner,
v.
Board of Education of the Town of
Boonton, Morris County,
Respondent.
Synopsis
Petitioner appealed the respondent Board’s determination that J.J. committed an act of harassment,
intimidation and bullying (HIB) in violation of New Jersey’s Anti-Bullying Bill of Rights Act (Act),
N.J.S.A. 18A:37-13 et seq., when he said the “n” word to some classmates and was overheard by another
student, who complained to one of the school guidance counselors; 	an HIB investigation subsequently
ensued and concluded that an act of HIB had occurred; J.J. denied using the “n” word on the morning in
question but noted a distinction between two forms of the word, one ending in “er” and the other with “a”;
J.J. admitted that he sometimes used the “a” form of the word among close friends, as a term of
familiarity or endearment. A hearing in the matter was held at the Office of Administrative Law (OAL)
on January 13, 2020.
The ALJ found, inter alia, that: the Act defines HIB as any gesture, written, verbal or physical act, or
electronic communication 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, and must also substantially
disrupt or interfere with the orderly operation of the school; while the Act does not limit “distinguishing
characteristic” to those specified in the statute, it has consistently required such a perceived motivation;
here, the Board acknowledged that the comment in question, regardless of who said it, was not directed at
the complainant, and the complainant did not initially know the identity of the person who she claimed
uttered the “n” word, until she identified him through photographs. The ALJ concluded that the Board
failed to establish that J.J. said the “n” word on the morning in question; accordingly, any resulting HIB
violation and/or code of conduct violation in this matter must be overturned.
Upon review, the Commissioner reversed the Initial Decision of the OAL and affirmed the Board’s
determination of HIB. 	In so doing, the Commissioner found, inter alia, that: the record contains
sufficient credible evidence to support the Board’s decision that J.J. said the “n” word; 	while the
evidence may leave room for two opinions regarding whether J.J. made the statement, it is insufficient to
overturn 	the 	Board’s 	decision, 	which 	was 	not 	arbitrary, 	capricious 	or 	unreasonable; 	and 	the
Commissioner is not permitted to substitute his judgment for that of the Board.
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.
July 10, 2020

OAL Dkt. No. EDU 10470-19
Agency Dkt. No. 158-7/19
New Jersey Commissioner of Education
Decision
A.J., on behalf of minor child, J.J.,
Petitioner,
v.
Board of Education of the Town of
Boonton, Morris County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law
(OAL), the exceptions filed by respondent pursuant to N.J.A.C. 1:1-18.4, and petitioner’s reply thereto,
have been reviewed.
This matter concerns an alleged act of harassment, intimidation, and bullying (HIB) by
J.J. 	The Board found that J.J. had committed an act of HIB when he said the “n” word to some
classmates and it was overheard by another student (complainant). The Administrative Law Judge found
that J.J. did not say the word on the morning in question and overturned the Board’s finding that J.J. had
committed an act of HIB.
In its exceptions, the Board argues that the ALJ applied the incorrect legal standard when
he concluded that the Board failed to establish that an act of HIB took place. The Board cites to case law
establishing that its decision should not be overturned unless it is arbitrary or capricious. The Board also
recounts its evidence demonstrating that the act did occur, such that it meets even the ALJ’s improperly
applied preponderance of the evidence standard. The Board further contends that the ALJ was factually
incorrect when he found that J.J. denied making the statement during his initial interview with the
district’s HIB investigator, pointing to the investigation report which listed J.J.’s attempts to explain his

2
behavior. Moreover, the Board argues that J.J. was not a credible witness when he denied making the
statement during the OAL hearing, as that testimony conflicted with prior statements.
In reply, petitioner argues that J.J. did not say the “n” word and never admitted to saying
it. Petitioner notes that the Investigation Report indicates that the statement was made without malicious
intent. 	Petitioner takes issue with the investigator’s techniques while interviewing J.J. and subsequent
procedures of the district in addressing the complaint.
Upon review, the Commissioner disagrees with the ALJ’s conclusion that J.J. did not say
the “n” word. 	When a local board of education acts within its discretionary authority, its decision is
entitled to a presumption of correctness and will not be disturbed unless there is an affirmative showing
that the decision was “patently arbitrary, without rational basis or induced by improper motives.” Kopera
v. W. Orange Bd. of Educ., 60 N.J. Super. 288, 294 (App. Div. 1960). 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., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff’d, 131 N.J. Super.
37 (App. Div. 1974). Based on the evidence in the record, the Commissioner finds that petitioner did not
meet his burden of demonstrating that the Board’s decision was arbitrary, capricious, or unreasonable.
The record contains sufficient credible evidence to support the Board’s decision that J.J. said the “n”
word, including the complainant’s statements and the staff’s review of corroborating video evidence.
While petitioner presented evidence showing that J.J. did not make the statement, including his denials
and the denials of his friends who were interviewed, at best this evidence balances the evidence that he
did make the statement.1 While the evidence may leave room for two opinions regarding whether J.J.
made the statement, it is insufficient to overturn the Board’s decision, because it does not demonstrate
1 The ALJ did not make specific credibility findings regarding the witnesses’ testimony, which makes the precise
weight of each party’s evidence difficult to determine. For purposes of this decision, the Commissioner assumes
that the ALJ found petitioner’s witnesses credible, but nonetheless reaches the same legal conclusion regarding the
standard of review.

3
that the decision was arbitrary, capricious, or unreasonable. 	To overturn the Board’s decision would
require the Commissioner to substitute his judgment for the Board’s, which is impermissible.
The Anti-Bullying Bill of Rights Act (the Act) defines HIB as follows:
[A]ny gesture, any written, verbal or physical act, or any electronic
communication, whether it be a single incident or a series of incidents,
that is reasonably perceived as being motivated either by any actual or
perceived characteristic, such as race, color, religion, ancestry, national
origin, gender, sexual orientation, gender identity and expression, or a
mental, physical or sensory disability, or by any other distinguishing
characteristic, that takes place on school property, at any school-
sponsored function, on a school bus, or off school grounds as provided
for in section 16 of P.L. 2010, c.122 (C.18A:37-15.3), that substantially
disrupts or 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.
Therefore, a finding of HIB requires three elements.2 First, the conduct must be reasonably perceived as
motivated by any actual or perceived enumerated characteristic or other distinguishing characteristic and,
second, the conduct must substantially disrupt or interfere with the rights of other students or the orderly
operation of the school. 	The third condition is that one of the three criteria enumerated in the Act
regarding the effect of the conduct must also be satisfied. Wehbeh v. Bd. of Educ. of the Twp. of Verona,
Essex County, Commissioner Decision No. 51-20 (decided February 4, 2020).
Regarding the first element, in defining HIB as an action “that is reasonably perceived
as being motivated either by any actual or perceived characteristic . . .”, N.J.S.A. 18A:37-14 (emphasis
added), the statute requires an analysis of how the actor’s motivation is perceived and whether that
2 The statute also requires that the conduct take place on school property, at a school-sponsored function, on a school
bus, or off school grounds as provided for in N.J.S.A. 18A:37-15.3. The parties do not contest that this requirement
has been met.

4
perception is reasonable. It does not require an analysis of the actual motivation of the actor. Wehbeh,
supra. Certainly, evidence that the actor was motivated by a distinguishing characteristic would meet the
standard of this section of the Act, but evidence that the actor was not so motivated does not end the
analysis. 	Here, it was not arbitrary, capricious, or unreasonable for the Board to conclude that the
complainant reasonably perceived J.J.’s use of a racial slur as being motivated by the distinguishing
characteristic of race. 3
Regarding the second element, the complainant told school staff that she did not want to
come to school because the “school is racist.”. 	(Initial Decision at 5) 	The school’s anti-bullying
specialist testified that the complainant’s statement demonstrated a substantial disruption of the student’s
rights, and the district’s superintendent agreed, testifying that the district does not want the children to
come to a school “where they feel that they will be discriminated against on any level.” (Initial Decision
at 8) 	The Commissioner finds that it was not arbitrary, capricious, or unreasonable for the Board to
conclude that the use of a racial slur interferes with the rights of other students to attend school in a bias-
free setting, and that J.J.’s comment substantially disrupted the complainant’s rights.
Regarding the third element, an act of HIB is one that “a reasonable person should know,
under the circumstances, will have the effect of physically or emotionally harming a student,” “has the
effect of insulting or demeaning a student,” or “creates a hostile educational environment . . .”. N.J.S.A.
18A:37-14(a) (emphasis added). None of these criteria require the actor to have actual knowledge of the
effect that his actions will have, or to specifically intend to bring about that effect. The first requires only
that a reasonable person should know there would be a harmful effect, not that the actor knows there
would be such an effect. The second two criteria address only the actual effect of the act, without any
reference to what either the actor or a reasonable person does or should know. Wehbeh, supra. As such,
a board of education can find that an individual committed an act of HIB even if the individual did not
3 Petitioner has argued both that he did not say anything on the morning in question, and that if he did say anything,
there is a distinction between two variations of the “n” word, one ending in “a” and one ending in “er.” The Board
has argued that the word is offensive in either form, and two of its witnesses testified that they have informed
students that the district considers both forms to be inappropriate. J.J. himself indicated on cross-examination that
some African-American students would object to either form of the word. The Commissioner agrees that either
form of the word can be the basis for a finding of HIB.

5
intend to cause harm. Here, the Board found that J.J.’s use of the “n” word was insulting or demeaning,
satisfying N.J.S.A. 18A:37-14 of the Act. The Commissioner finds that it was not arbitrary, capricious, or
unreasonable for the Board to conclude that J.J.’s use of a racial slur was insulting or demeaning.
Accordingly, the Initial Decision is reversed, and the Board’s determination that J.J.
committed an act of HIB is affirmed.
IT IS SO ORDERED. 4
INTERIM COMMISSIONER OF EDUCATION
Date of Decision: 7/10/2020
Date of Mailing: 	7/13/2020
4 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).

New Jersey Is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 10470-19
AGENCY DKT. NO. 158-7/19
A.J. ON BEHALF OF MINOR CHILD, J.J.,
Petitioner,
v.
BOARD OF EDUCATION OF THE TOWN OF
BOONTON, MORRIS COUNTY,
Respondent.
_________________________________
A.J. o/b/o J.J., petitioner pro se
James L. Plosia, Jr., Esq., for respondent (Plosia Cohen, attorneys)
Record Closed: March 19, 2020 	Decided: 	April 9, 2020
BEFORE JUDE-ANTHONY TISCORNIA, ALJ:
STATEMENT OF THE CASE
Petitioner, A.J., disputes respondent Boonton Board of Education’s harassment,
intimidation, or 	bullying 	(HIB) investigation 	regarding 	his 	minor 	son, 	J.J., 	and the
Board’s subsequent finding that an HIB violation occurred. 	Petitioner also disputes

OAL DKT. NO. EDU 10470-19
2
any corresponding code-of-conduct violation. The child, J.J., is accused of uttering the
“n” word to a group of two or three friends during a conversation. 	A third-party minor
child (“target”) who is African-American overheard the utterance, became incensed, and
complained to the administration. The target did not see which one of the youths in the
group uttered the “n” word, but she was subsequently able to identify J.J. as the bad
actor after a school district employee provided her with a copy of the yearbook, which
contained pictures of the target’s schoolmates for her to select from.
ISSUE
Do the facts here constitute an HIB violation under the Anti-Bullying Bill of Rights
Act (ABRA), N.J.S.A. 18A:37-13?
PROCEDURAL HISTORY
Petitioner 	filed 	the 	instant 	petition 	with 	the 	New 	Jersey 	Commissioner 	of
Education, where it was received on July 2, 2019, by the Office of Controversies and
Disputes.
The matter was transmitted as a contested case to the Office of Administrative
Law (OAL), where it was received on July 31, 2019.
The matter was set down for a hearing on January 13, 2020. Final submissions
were received on March 19, 2020, at which point the record was closed.
SUMMARY OF TESTIMONY
J.J.
J.J. is the minor child of petitioner A.J. On the morning of February 6, 2019, J.J.
was dropped off at school by A.J. a few minutes before the bell rang. J.J. approached a
small group of students he knew (two or three youths), greeted them, and waited with

OAL DKT. NO. EDU 10470-19
3
them for the bell to ring. J.J. testified that these youths were already in the middle of a
conversation and that he had little verbal interaction with them that morning aside from
the initial greeting.
Two 	days 	later, on 	Friday, 	February 8, 	2019, 	J.J. 	was 	summoned 	into 	the
school’s 	main 	office, 	where 	he 	was 	met 	by 	Principal Nosal and 	Ms. Maier, 	the
school anti-bullying specialist. 	J.J. testified that, at the time, he did not know what
he had been called there for. Upon questioning, he denied having said the “n” word on
the morning of February 6, 2019.
J.J. further 	testified 	that he 	has 	been an active Boy Scout for nine 	years, a
member 	of 	the town drum 	core for 	five years, and has 	played in local 	soccer 	and
baseball leagues for nine years. 	He has also performed over 260 lifetime hours of
community service through his various activities.
On cross-examination, J.J. testified that there is a difference between the “n”
word spoken 	and 	written as “nigger” 	and 	that spoken 	and written as “niggah.” 	He
further testified that he never uses the “nigger” form, because he knows it to be
disrespectful. He does, sometimes, use the “niggah” form among close friends, but only
as a term of familiarity or endearment. He further testified that he used neither term on
the morning in question.
Mrs. J.
Mrs. J. is 	J.J.’s 	mother. Mrs. 	J. testified 	that J.J. has 	had 	an individualized
education 	program since 	preschool for attention 	deficit 	disorder, 	attention 	deficit
hyperactivity disorder, and sensory issues.
Mrs. J. testified that J.J. had been disciplined by the school once before for
saying the “f” word. She testified that J.J. received a one-day out-of-school suspension
and a fourteen-day in-school suspension. 	She testified that for each of the fourteen

OAL DKT. NO. EDU 10470-19
4
days 	of 	in-school 	suspension, J.J. would start 	the 	day 	reporting 	to 	the 	principal’s
office along with his mother, Mrs. J., and would be asked by the principal at the time, Dr.
Caruso, if J.J. was ready to return to school. 	Each day J.J. would respond that he was
ready, and each day Dr. Caruso would direct him to complete another day of in-school
suspension until the total fifteen days was served. Mrs. J. then testified that based on
her past experiences with the school, she believes her son is routinely targeted by
the administration.
Mrs. 	J. 	testified 	that 	on Friday, 	February 	8, 	2019, she 	was 	contacted by
Principal Nosal, and was informed that there had been an HIB complaint against her
son, that it had been substantiated, and that J.J. would be receiving a suspension. She
was given no 	further 	information. 	When 	she 	inquired 	about 	the basis for 	the 	HIB
violation 	and 	corresponding 	code-of-conduct 	violation, 	she 	was 	informed 	by
the principal that he could not provide her with any such information due to privacy
concerns, and that for 	further 	detail she would have 	to ask 	her 	son, 	J.J. Mrs.
J. requested that Principal Nosal stay the suspension until she and her husband could
arrive 	at 	the 	school 	to review 	and 	discuss 	the 	incident 	with 	the
administration, but Nosal declined the request and affirmed the immediate suspension
of the child. No issue involving any racial slur was conveyed to Mrs. J. at the time.
Christine Maier
Christine 	Maier 	(Maier) 	testified 	on 	behalf 	of 	the 	school 	board. 	She
is a guidance counselor at J.J.’s school and also the anti-bullying specialist (ABS). She
has been employed for thirteen years as a guidance counselor and for more than two
years as an ABS. She testified that there is no specific training to be an ABS.
Maier 	testified 	that 	the incident at issue was 	first 	reported 	by
the complaining student (the 	target) to Mrs. 	Brady (Brady), who 	is 	another 	guidance
counselor at the school, on February 6, 2019. Maier testified that she became aware of
the incident the next morning, February 7, 2019, after Brady had reported the target’s

OAL DKT. NO. EDU 10470-19
5
complaint to Principal Nosal. Maier did not initially interview the target, but based on
her review of the incident report, she understood that the target, who is an African-
American student, reported to Brady that she overheard someone say the “n” word
earlier in the day, while the target was standing just outside the school, waiting for the
bell to ring. 	Maier testified that the target did not know who the individual was that
made 	the 	comment. Based on 	the 	report, Maier 	testified that Brady then 	showed
a yearbook to the target and asked her to look at the pictures of the students in order
to identify the individual who 	said 	the 	“n” 	word. The 	target 	identified 	J.J. 	as 	the
individual who uttered the “n” word.
Maier then 	read into 	the 	record the 	following 	statement from the 	target as
recorded by Brady from the incident report: “This school is racist; I don’t want to come
here.” The report went on to say that the target overheard another student say the “n”
word to some other students and the target was upset.
Maier 	then testified 	to 	the factors she 	uses to determine if 	an HIB 	complaint
exists, and 	applied 	them 	to 	the 	facts 	at hand: 1) identifying 	characteristic—in 	this
case, she found that there was one, race; 2) substantial interference—in this case she
found that there was 	substantial interference because 	the 	target 	became very
upset and went to her guidance counselor and stated that she felt that the climate of the
school was racist; and 3) violation of rights. 	With regard to this last category, Maier
testified that there had been much debate about this among her colleagues, but she felt
that anyone 	who belonged to a 	protected 	category 	has 	a 	right 	to 	enter into 	the
“school climate” 	free 	from harassment, intimidation, and 	bullying. Thus, 	due 	to 	the
racial nature of the word the target overheard, Maier found that the target’s rights in this
case were violated. Maier testified that the target in this instance did not know J.J.,
even after identifying his picture in the yearbook to Brady. Maier testified that she felt
that 	the 	target’s 	rights 	were 	violated even 	though the 	statement in 	question was
not directed at the target and the target did not know the alleged bully.

OAL DKT. NO. EDU 10470-19
6
Maier then testified that she viewed the closed-circuit video surveillance from
the schoolyard on the morning in question, and that the events appeared to play out as
J.J. 	described 	them 	during 	his 	testimony. J.J. 	is 	standing 	in 	a 	small 	group 	of
students and the target is standing a few feet away with her back to them. At some
point, 	the 	target 	turns 	around, sees 	J.J., and then 	turns 	to 	her friend 	and says
something. The recording did not include sound, and Maier testified that one could not
ascertain who, if anyone, uttered the “n” word.
On 	February 	7, 	2019, Maier interviewed four student witnesses, 	including 	the
target. None of the witnesses confirmed that J.J. made the statement in question. One
of the witnesses interviewed, B., who was among the small group of friends J.J. was
with on the morning in question, told Maier that nothing offensive at all was uttered by
anyone in the group on the morning in question.
Maier 	then 	interviewed 	J.J., on 	February 	8, 	2019. Maier 	stated 	that
J.J. said he didn’t 	remember anything in 	particular happening 	on 	the 	morning 	in
question. Maier stated that she believed him. She then testified that J.J. admitted after
questioning that he had, from time to time, used the word “niggah” informally in private
conversations, and never with the intent to insult anyone. He noted that that version of
the word could be heard used by his schoolmates hundreds of times a day, and
noted, “that’s how people talk.” J.J. added that if someone were to be offended by
eavesdropping on 	a 	private 	conversation, 	then 	that would 	be 	“their
problem.” Maier then testified that she took this comment as a tacit admission that he
did, in fact, use the “n” word on the morning in question, though, she noted, not with the
intent to offend anyone. She noted that this usage was “not ok.”
On 	cross-examination, 	Maier 	testified that 	she 	called 	J.J.’s 	mother after
interviewing J.J. 	and 	informed 	her 	that 	there 	was 	an 	ongoing
HIB investigation regarding 	her 	son 	and that 	there was 	an
assumption that J.J. violated the code 	of 	conduct regarding foul language. Maier
testified, “We determined that we thought he said that.” She further testified that she

OAL DKT. NO. EDU 10470-19
7
provided no further details of the HIB investigation to Mrs. J. When Mrs. J. asked what
her son was accused of, Maier told her only that “we are investigating it as an HIB but
that the consequence was determined due to our assumption that he violated the code
of conduct,” and “the consequence was for offensive language because we determined
that we thought he said that.” Maier further testified that it is standard practice to have a
student 	serve 	a 	period 	of 	suspension before 	the 	parents 	receive
any information regarding the investigation, as long the district “believes there is a code-
of-conduct violation.” She noted that the punishment for the code-of-conduct violation
(the fifteen-day suspension) is separate and apart from the HIB investigation.
When questioned with regard to the “substantial disruption” aspect of the HIB
statute, Maier testified that she feels that any student that becomes incensed enough to
lodge a complaint with the administration has experienced a substantial disruption. She
added that the target here experienced a violation of her right to come to a school
where she does not hear “that word.”
Robert Presuto
Robert Presuto (Presuto) is the 	superintendent 	of schools 	for the 	Town 	of
Boonton, a position he has held for five years.
Presuto first became 	involved in 	the 	current 	matter when 	his 	office received
the HIB investigation report for review. He testified that the HIB statute is a law, and
that as 	superintendent he 	is 	charged 	with 	making 	sure all 	appropriate laws
and protocols, including 	those 	surrounding 	HIB, 	are 	followed. He 	testified
that he ultimately affirmed the HIB-violation finding, and that the Board also affirmed this
finding. Presuto explained that the Board is given the HIB investigation report after
he reviews 	it, and 	that he gives 	the Board 	a 	brief 	synopsis of 	the
report before it makes its determination. 	This 	synopsis is 	usually 	supplied 	by 	the
bullying specialist. 	The Board then votes 	on whether to affirm, 	overturn, 	or 	ask 	for
additional information. Presuto stated that these processes are statutorily prescribed.

OAL DKT. NO. EDU 10470-19
8
Presuto testified that, in this case, the parents followed an appeal process, which
occurs after the Board takes a second vote, this vote being at a public meeting, and the
parents are notified.
Presuto testified that Boonton is extremely diverse and is surrounded by much
less 	diverse 	communities. 	He 	stated 	that 	there 	are many 	languages
spoken in the district, and 	that, after 	Spanish, the next 	three most 	common 	second
languages are “Arabic in nature.” Presuto testified that he takes the idea very seriously
that the 	children “do 	not come 	to 	a 	school 	district 	where 	they 	feel discriminated
against on any level.”
Presuto then 	testified 	as 	to 	the distinction 	between a code-of-
conduct violation and 	an HIB 	violation. 	He 	affirmed 	that 	in 	this 	case, 	the penalty,
i.e., the fifteen-day suspension, was imposed for the code-of-conduct violation and not
for the HIB violation. Presuto noted that he felt that this aspect was one of the most
confusing aspects for parents to understand, that the code-of-conduct violation/penalty
is not necessarily connected to the HIB investigation. 	He went on to say that the HIB
statute specifically states that punishment for a code-of-conduct violation in the process
of an HIB investigation can be put into effect immediately, even before there is a
determination regarding the HIB investigation.
On cross-examination, Presuto testified that no information surrounding the HIB
investigation was provided 	to 	J.J.’s 	parents early 	on. 	He 	noted 	that 	this 	was
likely because the 	parents did not request any information, or they 	did not know that
they could request such information. Presuto went on to testify that it is common
practice for parents of a child accused of an HIB violation not to be provided with any
information regarding 	the 	investigation while 	it 	is 	ongoing, because 	it 	taints 	the
investigation. He explained that the parents of the accused HIB violator are provided
with no details about the HIB investigation until after the investigation is concluded,
a report 	is 	generated and 	reviewed by 	the superintendent, and a determination 	has

OAL DKT. NO. EDU 10470-19
9
been made by the 	superintendent and voted on by the Board. Presuto testified 	that
he was not intimately involved in the HIB investigation, and that his purpose was to
make sure the law was followed, and a proper determination was made.
FACTUAL DISCUSSION
On 	the morning 	of 	February 6, 	2019, J.J., a middle-school 	student within the
district, was dropped off in front of his school by his parent. Before entering the school,
he greeted a small group of classmates and waited with them for the school bell to ring.
The group engaged in light conversation. Another student, the target, was standing with
her back to the group and heard what she believed to be the “n” word uttered by
someone 	behind 	her. Though 	she 	did 	not 	know 	the 	identity 	of 	the individual,
she became upset and complained to her guidance consular, and an HIB investigation
ensued.
The district acknowledges that the utterance, regardless of who said it, was not
directed at the target. The district further admits that the target did not initially know the
identity of the bad actor. Yet, armed with this knowledge, the district decided to conduct
an HIB investigation anyway, and aided in this investigation by staging a line-up of sorts
by having the target flip through photos of students until she fingered a bully.
Upon questioning, J.J. denied having said the “n” word on the morning in
question, a position he reiterated under oath at the hearing. The district did not present
the target as a witness, nor any other individual that heard the alleged utterance on the
date 	in 	question. The 	only witness offered 	by 	the 	district 	that 	had 	any 	direct
involvement 	in 	the 	HIB 	investigation, 	Christine Maier, testified 	that, aside 	from 	the
target, all other students that were interviewed as part of the investigation deny that J.J.
uttered any such word. 	Further, Maier testified that the target’s back was to the group
of students when the word was uttered, and affirmed that the target did not actually
see any individual utter the word. Based on the foregoing, I FIND that J.J. did not utter
the “n” word on the morning in question.

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LEGAL DISCUSSION AND CONCLUSION
Under the ABRA, “harassment, intimidation or bullying” means any gesture, any
written, verbal, or physical act, or any electronic communication that is reasonably
perceived as being 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. See N.J.S.A. 18A:37-14. It must also substantially disrupt or
interfere with, among other things, the orderly operation of the school. Ibid. Although
the ABRA does not limit “distinguishing characteristic” to those specified in the statute, it
has consistently required such a perceived motivation. See K.L. v. Evesham Twp. Bd.
of Educ., 423 N.J. Super. 337, 351 (App. Div. 2011). 	“Thus, 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.” Ibid.
The definition of “harassment, intimidation, or bullying” is reproduced below in
full:
“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:

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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.]
Here, the respondent Board has failed to establish that J.J. even uttered the
“n” word on the morning in question. I, therefore, CONCLUDE that any resulting HIB
violation and/or code-of-conduct violation must be overturned.
ORDER
Given my findings of fact and conclusions of law, I ORDER that any finding of
an HIB 	violation 	and 	any 	corresponding 	code-of-conduct
violation are hereby OVERTURNED, and 	any 	allegations of 	an HIB violation against
J.J. are dismissed.
I 	hereby FILE this 	initial 	decision 	with 	the COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified, 	or 	rejected 	by
the COMMISSIONER 	OF 	THE 	DEPARTMENT 	OF 	EDUCATION, who 	by 	law 	is
authorized to make a final decision in this case. If the Commissioner of the Department
of Education does not adopt, modify, or reject this decision within fortyfive days, and

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unless such time limit is otherwise extended, this recommended decision shall become
a final decision under N.J.S.A. 52:14B10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to
the judge and to the other parties.
April 9, 2020
DATE 	JUDE-ANTHONY TISCORNIA, ALJ
Date Received at Agency: 	4/9/20 	__
Date Mailed to Parties: 	__
Id

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APPENDIX
LIST OF WITNESSES
For Petitioner:
J.J.
Mrs. J.
For Respondent:
Christine Maier
Robert Presuto
LIST OF EXHIBITS IN EVIDENCE
For Petitioner:
None
For Respondent:
None