J.P. on behalf of minor child, D.P. v. Board of Education of the Gloucester County Vocational-Technical School District, Gloucester County, 3/13/2020, (#97-20)

New Jersey Commissioner of Education
Final Decision
J.P. on behalf of minor child, D.P.,
Petitioner,
v.
Board of Education of the Gloucester County
Vocational-Technical School District,
Gloucester County,
Respondent.
Synopsis
Petitioner appealed the respondent Board’s determination that D.P. 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 called A.G., a fellow student, “gay”. Petitioner admitted to calling
A.G. “gay,” but contended that he used the term in a joking manner and did not intend it in a demeaning
way. 	The Board argued that D.P.’s actions constituted an act of HIB, and that its imposition of an in-
school suspension was appropriate discipline for the infraction. 	Petitioner sought a reversal of the
Board’s determination and the resulting discipline. A hearing in this matter was conducted at the Office
of Administrative Law (OAL) in December 2019.
The ALJ found, inter alia, that: the definition of HIB in the Board’s HIB policy does not mirror the
definition found in N.J.S.A. 18A:37-14; the statute requires a finding that the actor knew or should have
known that the conduct at issue would cause harm; the Board failed to consider whether D.P. knew or
should have known that his conduct would have the effect of harming A.G.; 	and the Board failed to
consider D.P.’s motivation in making the statement at issue here. 	The ALJ concluded that the Board
acted in an arbitrary, capricious and unreasonable manner when it determined that D.P. had committed an
act of HIB based upon his own admission, without considering his explanation of the circumstances
surrounding the comment and the fact that D.P.’s comments “were not motivated by any actual or
perceived characteristic, such as sexual orientation…” of the targeted student. 	Accordingly, the ALJ
reversed the Board’s determination that D.P. committed an act of HIB, and instead found that D.P.’s
conduct constituted a violation of the Student Code of Conduct.
Upon review, the Commissioner reversed the Initial Decision of the ALJ and affirmed the Board’s
determination of HIB. 	In so doing, the Commissioner found, inter alia, that: 	petitioner failed to
demonstrate that the Board’s actions were arbitrary, capricious or unreasonable; 	no evidence was
provided to overturn the Board’s finding of HIB other than D.P.’s alleged lack of subjective ill intent; the
record contained sufficient credible evidence to support the Board’s decision that commenting on or
misstating another student’s sexual orientation could reasonably be perceived as being motivated by that
characteristic; 	D.P.’s comments substantially disrupted A.G.’s education; and such comments were
reasonably considered to be insulting or demeaning. Accordingly, the petition was dismissed.
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.
March 13, 2020
97-20

OAL Dkt. No. EDU 15220-18
Agency Dkt. No. 241-9/18
New Jersey Commissioner of Education
Decision
J.P., on behalf of minor child, D.P.,
Petitioner,
v.
Board of Education of the Gloucester
County Vocational-Technical School
District, Gloucester County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law
(OAL), and the exceptions filed by the respondent pursuant to N.J.A.C. 1:1-18.4 have been
reviewed.1
This matter concerns an alleged act of harassment, intimidation, and bullying
(HIB) by D.P., who admitted to calling another student, A.G., “gay.” The Board found that D.P.
had committed an act of HIB and imposed an in-school suspension. 	Following a hearing, the
ALJ found that the Board’s decision should be overturned because the Board did not consider
D.P.’s motivation in making the statement or whether a reasonable person should have known
that calling a student “gay” would cause harm. The ALJ further found that the definition of HIB
in the Board’s HIB policy did not conform to N.J.S.A. 18A:37-14.
In its exceptions, the Board argues that its HIB policy is consistent with the Anti-
Bullying Bill of Rights Act (Act), N.J.S.A. 18A:37-13 et seq. 	The Board cites to case law
1 Petitioner did not file a reply to respondent’s exceptions.

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establishing that the subsections of the statute dealing with the effect of the alleged act of HIB
are alternate criteria and that any of the three alternatives are sufficient to satisfy the statute. The
Board disagrees that its decision finding that D.P. committed an act of HIB was arbitrary,
capricious, or unreasonable. 	The Board indicates that it is undisputed that A.G. suffered
emotional harm because of the comments made by D.P., pointing to testimony that A.G. was in
counseling and did not want to attend school due to the comments. Therefore, according to the
Board, two of the criteria regarding the effect of D.P.’s comments were met: 	1) they had the
effect of insulting or demeaning A.G., and 2) they created a hostile educational environment by
severely or pervasively causing emotional harm to A.G. 	The Board contends that it is not
necessary to establish that a reasonable person would know that the act would cause harm.
However, the Board also argues that a reasonable person should know that purposely misstating
another student’s sexual orientation would cause emotional harm or that the victim would
reasonably perceive the comment as insulting, and that D.P.’s subjective intent or motivation is
irrelevant to the analysis. Furthermore, the Board disputes the finding in the Initial Decision that
the comments could not have been construed by A.G. to be truthful because A.G. had a
girlfriend, since the comments were made in an open school setting – where anyone could have
heard them, including individuals who may not have known anything about A.G’s sexual
orientation.
Upon review, the Commissioner disagrees with the ALJ’s conclusions that the
Board’s policy did not conform to the Act and that the Board’s decision finding that D.P.
committed an act of HIB was arbitrary, capricious, or unreasonable. 	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,

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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).
The Initial Decision incorrectly views subsection (a) – that a reasonable person
should know the act will have a harmful effect – as the third requirement, with an additional
fourth requirement being a choice between subsections (b) and (c). 	As a matter of standard
statutory construction, the term “or” between subsections (b) and (c) also applies to subsection
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 dispute that this element has
been satisfied in this case.

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(a), such that a demonstration of any of these three criteria can support a finding of HIB. 	Ibid.
Accordingly, the Board’s use of the term “or” between subsections (a) and (b) in the definition of
HIB in its policy conforms entirely to the Act. The Commissioner therefore reverses the ALJ’s
conclusion on this issue.
Turning to the Board’s decision that D.P. committed an act of HIB, the ALJ found
that the Board’s decision was arbitrary, capricious, and unreasonable because the Board did not
consider whether D.P. knew or should have known under the circumstances that his conduct
would have the effect of harming A.G. 	However, the Board was not required to consider this
factor, because it is only one of three alternate criteria outlined in the statute, so its failure to do
so does not render its decision arbitrary or unreasonable. 3, 4
The Initial Decision also finds fault with the Board’s decision because D.P. stated
that he did not intend to harm A.G. 	This, too, is an incorrect interpretation of the Act.5 	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 perception is reasonable. It
does not require an analysis of the actual motivation of the actor.6 	Wehbeh, supra. 	Certainly,
3 The Board’s decision was instead based on the criteria outlined in subsection (b), because it found that the
comments were insulting and demeaning.
4 To the extent that the ALJ found the testimony of HIB specialist Edward Ferrari not credible regarding what a
reasonable person should have known, that finding is based on the ALJ’s erroneous legal interpretation of the Act.
Because the Board was not required to consider what D.P. knew or what a reasonable person should have known,
Mr. Ferrari’s credibility on this topic is irrelevant. 	Mr. Ferrari testified that D.P.’s comments were insulting or
demeaning – an appropriate basis for a finding of HIB – and the ALJ did not take issue with Mr. Ferrari’s credibility
in making this statement. 	Indeed, to the contrary, the ALJ also characterized the comments as insulting and
demeaning.
5 The ALJ found Mr. Ferrari not credible on the question of D.P.’s motivation but, again, this finding was based on
the ALJ’s erroneous legal interpretation of the Act. Mr. Ferrari testified that he considered A.G.’s perception of the
comments – which is appropriate, as explained herein – and the ALJ did not take issue with Mr. Ferrari’s credibility
in making this statement.
6 This conclusion does not make the Act a strict liability statute, as the ALJ opined it would. The statute is clear that
the perception must be reasonable.

5
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. 	Moreover, 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 intend to cause harm.
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 her burden of
demonstrating that the Board’s decision was arbitrary, capricious, or unreasonable. 	Petitioner
has provided no evidence to overturn the Board’s finding other than D.P.’s alleged lack of
subjective ill intent. 	On the other hand, the record contains sufficient credible evidence to

6
support the Board’s decision that commenting on or misstating another student’s sexual
orientation could reasonably be perceived as being motivated by that characteristic, that D.P.’s
comments substantially disrupted A.G.’s education, and that D.P.’s comments were insulting or
demeaning.7
Accordingly, the Initial Decision is hereby reversed and the Board’s decision
finding that D.P. committed an act of HIB is affirmed. The petition is dismissed.
IT IS SO ORDERED. 8
COMMISSIONER OF EDUCATION
Date of Decision: 	March 13, 2020
Date of Mailing: 	March 16, 2020
7 The petition of appeal raised procedural concerns about the Board’s decisions, but the Initial Decision did not
address those concerns. However, the Commissioner finds that the Board followed the procedures required by the
Act by making the petitioner aware of the charges and the evidence on which they are based and by offering the
petitioner the opportunity to present evidence to the Board – an opportunity of which she availed herself. Following
those procedures, the Board determined that the petitioner had committed an act of HIB. Nothing in the record
indicates that the Board, in making that determination, operated in an arbitrary, capricious, or unreasonable manner.
8 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).

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 15220-18
AGENCY DKT. NO. 241-9/18
J.P.,
Petitioner,
v.
BOARD OF EDUCATION OF THE
GLOUCESTER COUNTY VOCATIONAL-TECHNICAL
SCHOOL DISTRICT, GLOUCESTER COUNTY,
Respondent.
____________________________
J.P., petitioner, pro se
Jay Branderbit, Esq., on behalf of respondent (Kent McBride, P.C., attorneys)
Record Closed: January 13, 2020 	Decided: February 5, 2020
BEFORE CATHERINE A. TUOHY, ALJ:
STATEMENT OF THE CASE
Petitioner, J.P., on behalf of D.P., appeals the respondent, Gloucester County
Vocational-Technical School District’s Board of Education (the Board) determination
that D.P. committed an act of harassment, intimidation or bullying (HIB) in violation of
the New Jersey Anti-Bullying Law, N.J.S.A. 18A:37-13.2 et seq. and the resulting
discipline. At issue is whether D.P. committed an act of HIB.

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PROCEDURAL HISTORY
On September 19, 2018, petitioner, on behalf of her minor child, D.P., filed an
appeal with the Department of Education, Bureau of Controversies and Disputes,
seeking the reversal of respondent’s determination that D.P. had committed an act of
HIB and the withdrawal or reduction of the discipline imposed. 	On October 15, 2018
respondent filed an answer. 	The matter was transmitted to the Office of Administrative
Law (OAL), where it was filed on October 19, 2018 as a contested case pursuant to
N.J.A.C. 6A:3-1 et seq. and N.J.S.A. 52:14B-1 to -15. 	A pre-hearing telephone
conference was conducted on December 5, 2018 and the matter was scheduled for a
hearing on April 4, 2019.
Prior to the scheduled hearing date, respondent filed a motion for summary
decision on February 27, 2019. 	Petitioner filed opposition to respondent’s motion for
summary decision on April 2, 2019. 	Respondent filed a reply on April 16, 2019. By
Order dated May 15, 2019, respondent’s motion for summary decision was denied. 	A
hearing was conducted on December 5, 2019 and the record remained open to allow for
closing submissions. 	The record closed on January 13, 2020 following receipt of
closing statements.
FACTUAL DISCUSSIONS AND FINDINGS
.
Edward Ferrari testified on behalf of the respondent. He has a master’s degree
in 	educational 	school 	counselling 	and 	is 	employed 	by 	respondent 	as 	a 	school
counsellor. He has worked for respondent for ten years and was the HIB specialist for a
two-year period for the 2017-2018 and the 2018-2019 school years.
The HIB specialist works as part of a team and when a complaint is received,
they conduct an investigation and the group determines if a violation of HIB has
occurred. 	This complaint came in during Mr. Ferrari’s first year as the HIB specialist.
Other members of the team were Mrs. White, the school psychologist and Dr. Heicken,
Director of Special Education and the HIB Director. 	This was not Mr. Ferrari’s first HIB
investigation. 	Mr. Ferrari prepared a certification in support of respondent’s motion for

3
summary decision to which he was referred to refresh his recollection (R-X). 	In early
March 2018, Mr. Ruiz of School Based Youth Services approached Mr. Ferrari and
advised him that A.G. was having some problems with other students and that Mr. Ruiz
referred him to Robin’s Nest for crisis counselling. 	There was no mention of any
harassment comments at that time. Thereafter, on or about March 27, 2018, Mr. Ferrari
received an email from A.G.’s mother that read:
“Good 	Afternoon: 	A few 	weeks 	ago, 	several 	students 	went to
Guidance concerned with my son that he was not himself 	and
seemed down. 	He and I met with Mr. Ruiz and Ms. Glazer. 	I was
then advised to call Robin’s Nest for an evaluation. 	After a few days
A.G. finally opened up to me and Mr. Ruiz of what was going on. He
was being bullied by a boy in his electrical program and two - three
other boys would laugh and join in the comments that were being
made. 	For example, you’re “gay”, bowling is not a sport, you will
never get anywhere with that. 	No girl would like you rumors spread
to other kids that would comment in the halls that he doesn’t even
know etc. . . . He has been working with an in-home therapist named
Jenny. 	Mr. Ruiz as well who has suggested that A.G. and the boy
meet to discuss the issues which A.G. does not feel comfortable
doing and neither does Jenny his therapist. 	It was also brought up
again today and I do not feel comfortable with how this is being
handled. 	I clearly feel this is a case of bullying and should be
addressed in a different manner and Jenny the therapist agrees
along with A.G. 	If someone can get back to me in this regard that
would be great.”
The first page of exhibit R-V is the Initial Report of HIB with a copy of the March
27, 2018 email from A.G.’s mom attached. 	This was the first notice that there was an
HIB incident (R-V). 	Prior to this date there was no indication that A.G. was being
bullied. 	Based on this email an investigation was commenced. 	He was charged with
conducting the interviews for the investigation and interviewed A.G. 	Exhibit R-L is a
hand-written copy of the statement provided by A.G. The interview took no more than
ten to fifteen minutes. During the interview, A.G. said he did not want to go to shop
anymore, which Mr. Ferrari considered adverse to his educational experience since he
did not want to go to class. 	He continued to interview the other students involved,
including D.P. 	Exhibit R-J is a handwritten statement provided by D.P. during his
interview. 	D.P. admitted to calling A.G. gay but stated that he did not mean it in a
demeaning way but in a joking manner. 	Mr. Ferrari allowed the students to make
additions to their statement and on April 6, 2018 D.P. added to his original statement

4
taken on March 28, 2018. 	D.P. added that they had an inside joke and would say to
each other “Dude your gay”. 	Exhibit R-P contains written statements from three other
students, J.M., M.A. and G.C. 	Theses statements were given as a result of interviews
Mr. Ferrari conducted. J.M. admitted that D.P. called A.G. gay, but J.M. did not admit to
calling A.G. gay. J.M. also stated that he could not tell if D.P. was joking or not. This is
significant because he did not know what the intent was or could not tell the intent
based on the nature of the comments. J.M. said that G.C. also called A.G. gay.
M.A.’s statement does not admit to calling A.G. any names. G.C. did not admit in
his statement that he called A.G. gay. 	Mr. Ferrari interviewed two other students, A.U.
and A.R. who were also in the same class, but not in the same friend group, in order to
get another perspective from a neutral party. 	Neither heard nor saw anyone pick on
A.G. (R-Q).
Mr. Ferrari’s certification at paragraph 8 references a meeting held March 28,
2018, the day after A.G.’s mother sent the email. 	In attendance were the shop teacher
in the electrical program, Mr. McCoy, Mr. Ruiz, A.G., A.G.’s mother, Jenny the therapist
and Mr. Ferrari. Mr. McCoy had stated during the meeting that if he had heard students
making comments to A.G., he would have interceded and would have also reported the
students (R-X). Mr. Ferrari did not take a written statement from Mr. McCoy because he
knew from the meeting that Mr. McCoy did not witness anything, and Mr. Ferrari
believed the best witnesses would be the students involved. The fact that D.P. admitted
that he made the statements also effected Mr. Ferrari’s decision that it was not
necessary to take a statement from Mr. McCoy. 	Regardless of D.P.’s intent, he
admitted to making the statements. Also, one of the accused indicated he did not know
if D.P. was joking or not. 	Mr. Ferrari felt he did a thorough investigation. 	None of the
other members of the HIB team advised him to do anything further in his investigation.
As a result of the investigation, there was a finding that D.P. violated the HIB
policy. There was a report prepared by Mrs. White based on Mr. Ferrari’s investigation.
The results of his investigation were discussed with Ms. White and Dr. Heiken (R-F).
There were three separate findings:
1. No HIB finding against M.A. and J.M.

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2. G.C. did not commit a HIB violation, but violated the Student Code of Conduct
3. D.P. committed an act of HIB
The HIB behavior committed by D.P. was “insulting or demeaning comments”
based on his calling A.G. gay. The actual or perceived characteristic that motivated the
behavior was “Perceived Sexual Orientation”. The report indicated that this was a series
of incidents. The report also indicated that the students had not previously committed an
act of HIB and that A.G. had not previously been a target of HIB while attending school
in the district (R-F, page 2, paragraphs 3 - 6). Ms. White signed off on the report.
D.P. received an in-school suspension as a result of the HIB finding and G.C.
received an after-school detention from 3:00 – 6:00 p.m. (R-F, page 3). 	An in-school
suspension involves staying in a room all day in school and not attending any classes.
Discipline could have been more severe such as an out of school suspension or
expulsion. Mr. Ferrari does not impose discipline, the administrator does.
There have been no further issues involving D.P. or A.G. or any of the students
involved. Mr. Ferrari has interacted with D.P. as he is his guidance counsellor and they
have discussed classes and grades. 	At no time did D.P.’s parents request that Mr.
Ferrari be changed as D.P.’s guidance counsellor. 	He has had a normal relationship
with D.P. since the investigation. 	D.P.’s performance has been averaged since the
2017-2018 school year. 	D.P. has done well in shop but struggles with some of his
classes. 	Mr. Ferrari has not noticed any significant changes in his performance. 	D.P.
has not complained to him about any emotional problems. 	He has not said heard from
anyone that D.P. feels that he has been stigmatized by the HIB investigation.
On cross-examination, Mr. Ferrari was a shop teacher in the past and familiar
with how students talk to each other and has heard students call each other gay in the
past. 	After Mr. Ferrari spoke to A.G. his position was to move forward with the
investigation. 	When he first spoke with D.P. on March 28, 2018, he does not recall
being upset with D.P. but rather being disappointed with the whole group. 	Mr. Ferrari
did not refuse to extend a handshake to D.P. when he first met with him. When he met
with D.P. again on April 6, 2018, he advised D.P. to add to his statement because it
would help. 	When he met with all of the witnesses, he told them to write as much

6
information as possible to explain that if they were joking to write it all down because the
more information provided would help them. 	Initially, D.P. wrote down that he admitted
he called A.G. gay. 	Mr. Ferrari was his counsellor and wanted to make sure D.P. got a
fair shake. He did advise D.P. about the process and that if he felt strongly about it, his
parents should appeal the finding.
J.M.’s statement that he could not tell if they were joking or not could mean both,
that either they were joking, or they were not. Out of the four boys who were accused,
the fact that D.P. admitted to calling A.G. gay, was the basis for finding D.P. in violation
of the HIB policy and not the others.
Mr. Ferrari was not aware of a significant change in D.P.’s performance as far as
grades go from the 2017-2018 school year until now and that he actually failed two
classes last year when he has never even come close to failing, which J.P. claims was
as a direct result of him being falsely accused.
Mr. Ferrari’s recollection was that when they met as a team to discuss the case
none of the others involved admitted to saying the comments other than D.P. and that is
why they were not found in violation of the policy. 	Out of the four interviewed only D.P.
admitted to calling A.G. gay. 	Mr. McCoy is the shop teacher and had them every day
and did not notice anything. 	A statement should have been taken from him. 	Although
D.P.’s admission was used against him, his explanation that they were joking with each
other was not considered. 	Mr. Ferrari stated that students sometimes speak to each
other in ways they should not. 	It was not commonplace in Mr. Ferrari’s shop. 	He is
training students to go into the carpenters’ union and to go into peoples’ houses. 	He
cannot speak to what goes on in Mr. McCoy’s shop class because he is not there every
day. 	However, the language was not something he would accept in his class or as a
counsellor. 	He did not interview Mr. McCoy because at the meeting he said he did not
witness anything. After he conducted the investigations, he was not instructed by any of
his supervisors to go and interview Mr. McCoy. 	Mr. Ferrari has a decent relationship
with D.P. and as the HIB specialist and D.P.’s counsellor, Mr. Ferrari was never looking
to file a HIB charge on D.P. and being part of that was a very hard part of his job.

7
On redirect examination, Mr. Ferrari stated that if D.P. had not admitted making
the statements, the outcome would be different.
Mr. Ferrari was part of the group of three people discussing whether D.P.’s
conduct violated HIB. 	There was not enough evidence against the other students, but
D.P. admitted it although his intent was different. The Board believed they could defend
their 	decision 	in finding 	HIB 	against 	D.P. 	because 	of 	his 	admission. 	Mr. 	Ferrari
explained that they took into consideration D.P.’s explanation of the circumstances
surrounding the comments and D.P.’s intent, but it was perceived differently by A.G.
When they spoke to people during the course of the investigation, there seemed to be
an imbalance of power between D.P. and A.G., rather than a conflict. 	In his HIB
training, with no imbalance of power, you can go back and forth making comments to
the other person and that is considered a conflict. However, if comments are made and
the other person is perceiving them differently because one person has power over the
other and the comments are causing school avoidance, that is the reason the group
recommended the finding of a HIB violation to the Board. 	The imbalance of power is
the sexual orientation of the student. 	D.P. had more power over A.G. 	It was Mr.
Ferrari’s understanding that it was not a back and forth between D.P. and A.G. 	D.P.
just made comments to A.G. and A.G. did not respond.
They have HIB training in-district each year. 	He and Ms. White also went to an
additional one-day training for HIB at the firm of Strauss Esmay.
On re-cross examination, D.P.’s April 6, 2018 written statement stated:
“In the beginning of the year our shop class had an inside joke ‘Dude,
you’re gay’ and we all made sure no one would be offended by it.
We all said to each other all the time knowing that it was a joke. A.G.
would say it as much as everyone else. 	I don’t understand why
people would be offended if they are saying it too.” (R-J).
Although D.P. did say that in his statement, but Mr. Ferrari did not have any
evidence that that was going on.
The comment that he made, ‘Dude you’re gay’, disrupted A.G.’s education that
he did not want to come to school to the point that he went to crisis intervention. 	The

8
evidence was that it significantly disrupted A.G.’s educational process and he did not
want to come to school anymore. 	The outside therapist was working with A.G. and
revealed this information. Mr. Ferrari does not know A.G.’s sexual orientation and does
not care either way. 	Mr. Ferrari took D.P.’s admission that yes, D.P. called A.G. gay,
regardless of intent and that violates the policy. 	If D.P. did not admit it, then there
probably would have to have been more investigation and additional individuals brought
in.
Mr. Ferrari does not think D.P. believes A.G. is gay. However, it is the perception
of the person accusing D.P. 	Mr. Ferrari did not know and could not say whether D.P.,
under the circumstances of this case, knew or should have known that his comments
would cause harm to A.G. 	He thinks D.P. is a really nice kid and knows better than to
say those words to someone. 	Mr. Ferrari admitted that he really did not know how to
answer that question.
On re-direct, J.M. said G.C. also called A.G. gay. 	No one else corroborated
D.P.’s statements that A.G. also called D.P. gay.
On re-cross examination, Mr. Ferrari did not know that A.G. had a girlfriend. 	He
does not get involved in relationships. 	He admitted that sometime other students know
students better than staff.
In Mr. Ferrari’s opinion, if there was other evidence that there was a back and
forth between A.G. and D.P. saying “Dude, your gay”, as the HIB specialist at the time,
there would not have been an imbalance of power, it would have been a code of
conduct violation through the administration for them using inappropriate language
pursuant to the policy. The imbalance of power would have been D.P. calling A.G. gay.
It is only a HIB violation if it is reported as an imbalance of power by the person
targeted. It is the perception of the person being targeted. In Mr. Ferrari’s opinion, D.P.
is truthful. 	However, he has to have some corroboration. 	Even though he feels that
D.P. is a truthful kid, he has to go with what he was instructed to do.

9
D.P. should have known that the comments would have harmed A.G. 	He
believes D.P. made a mistake and this was a learning lesson and he would not do this
again.
According to Mr. Ferrari, it was A.G.’s perception that D.P.’s comments were
motivated by an actual or perceived characteristic of his and that was A.G.’s sexual
orientation.
Philip Nicastro testified on behalf of the respondent. 	He has a B.A. from
Glassboro 	State 	College; 	a 	Masters’ 	degree 	in 	educational 	administration 	from
Monmouth University; a doctorate in education from Temple University; and a Law
degree from Widener University School of Law. 	He is licensed to practice law in
Pennsylvania and New Jersey since 1994. 	He is a principal and employed by Strauss
Esmay Associates, a New Jersey School Policy and Regulation Consulting firm. 	They
work with about 480 public school districts in New Jersey; twenty-five charter schools
and forty private schools for students with disabilities. There are about 550 – 560 public
school districts in New Jersey and they have contracts with 480 of them to provide
school policy and regulation consulting services. 	The firm has been in existence since
1972, but his wife, a former school teacher acquired the firm in 2001. He has worked as
a legal consultant to Strauss Esmay since 1994. 	Usually a school district comes to the
firm realizing they need to update their policies and then they work with the school
district to develop a customized policy manual. Thereafter they have an annual contract
with school district to provide them updates as the statutes, code and decisions come
out that impact school policy. 	Mr. Nicastro retired after twenty years as a school
business 	administrator 	and 	five 	years 	as 	a 	superintendent. 	He 	retired 	as 	the
Superintendent of the Brick Township school district in 2003.
The current HIB law came into effect for the 2011 school year. 	The firm does
professional development programs on the HIB law. 	Since 2011 he has trained
ten-thousand people on the HIB law. They run training programs for HIB specialists and
teachers. One of the services they provide to their clients is if they have questions, they
can call them. Mr. Nicastro was accepted as an expert to address the respondent’s HIB
policy and whether it conforms to the New Jersey HIB statute. 	Strauss Esmay wrote

10
respondent’s HIB policy 5512. Strauss Esmay provides a policy guide to school districts
and it’s the school districts decision whether to adopt it or not.
Mr. Nicastro recalls Superintendent Dicken reaching out to him in May 2019
regarding a question involving the school’s HIB policy. Mr. Dicken had received the
order denying the Board’s motion for summary decision wherein it was pointed out that
the Board’s HIB policy was not consistent with the statute. 	Mr. McCastro sent an email
dated May 21, 2019 to Michael Dicken in response (R-Y).
Mr. Nicastro stated to have HIB you need four things: motivation; location; it has
to create substantial harm or effect the rights of other students; and there has to be
harm. 	There have been lots of cases that if there is no motivation, you may have a
code of conduct violation, but you do not have a HIB violation. 	There has to be
motivation, the conduct has to be motivated by an actual or perceived characteristic.
Location is an easy one. It has to affect the orderly operation of the school or the rights
of other students. The last component is harm and the harm components are three. 1.
that a reasonable person would know under the circumstances that whatever they did
would cause harm; 2. 	The act had the effect of insulting or demeaning; or 3. 	The act
created a hostile educational environment where the child did not want to come to
school anymore. 	Those three elements in everything he and his firm have read was
that only one of those items was required. 	In his opinion, you only need one of those
three items to satisfy the statute.
His firm publishes a monthly school law digest where they report all major
educational law decisions, eight a month for eleven months, eighty-eight a year. He has
read every one since 2011. 	There has never been a requirement that you need as a
threshold to find that a reasonable person would know under the circumstances that the
conduct would cause harm before you went to the other sections. 	It has always been
interpreted that you need any of the three – that is, a reasonable person would know
under the circumstances or has the effect of insulting or demeaning or creates a hostile
educational environment.
The New Jersey Department of Education has issued a publication entitled
“Guidance for School on Implementing the Ant-Bullying Bill of Rights Act (R-Y,3). 	This

11
document on page three supports Mr. Nicastro’s opinion that the statute was meant to
be read with an “or” between the three sections.
In Mr. Nicastro’s opinion, respondent’s HIB policy in March 2018 comported with
the statutory requirements and all the guidance put out by the Department of Education.
On cross-examination, Mr. Nicastro said they must have motivation. 	This is the
hardest part to determine what is the motivation. 	Two kids are in a playground playing
kickball and a disagreement breaks out on a call of an out on base. One of the children
says not only were you out but proceeds to use a racial epithet. 	The motivation for
using the racial epithet was not the race of the child, but the call out on base. 	It was a
conflict, not a HIB. 	In Mr. Nicastro’s opinion, the hardest thing for anti-bullying
specialists to determine is what was the motivating factor.
Looking on page two of R-Y,3 under HIB definition, Mr. Nicastro indicated if you
were required to meet all six bullet points, the number of HIB cases would be drastically
reduced. Although Mr. Nicastro was not here to discuss the facts of this case, he
indicated that in 90% of these cases, the ALJ and the Commissioner of Education have
deferred to the school districts. Any interpretation that would limit a finding of bullying
would be contrary to the policy of stopping the HIB conduct. Intent does not really
matter as it is whether a reasonable person would conclude it would be harmful.
Mr. Nicastro does agree that the statute N.J.S.A. 18A:37-14 does not contain an
or between sections (a) and (b). The statute as written demonstrates the legislative
intent and is controlling. He does not know why it has not been amended if it is
incorrect.
Michael Dicken testified on behalf of the respondent. 	He is the Superintendent
of the Gloucester County Vocational-Technical School District. 	He has a B.S. degree
from Westchester State College with a certificate in health and physical education; a
Masters’ degree from Rowan University in School Business Administration. 	He spent
five years working at Glen Mill School for Boys, which is a juvenile delinquent facility in
Pennsylvania as a teacher and a counsellor. He was a teacher and administrator at the
Yale school, which is a private school for the handicapped. 	He was employed in 1999

12
by 	the 	Gloucester 	County 	Special 	Services 	School 	District 	school 	as 	a 	program
manager. He later served as assistant principal and later principal of that program. He
has been the Assistant Superintendent of both school districts for three years. 	This is
his ninth year as Superintendent of both programs, the Gloucester County Special
Services School District and the Gloucester County Vocational and Technical School
District. 	As Superintendent he oversees all operations of both school districts including
finances, curriculum, students and faculty. 	He supervises all employees of the school
districts, including Mr. Ferrari.
Mr. Dicken is familiar with the HIB complaint filed by the mother of A.G. 	Mr.
Ferrari conducted the HIB investigation under the direction of Dr. Susan Heiken, the
Director of Clinical Services and the HIB Coordinator. 	Mr. Ferrari’s testimony was
accurate as far as processing and procedure. As Superintendent, he reviewed the final
HIB report after it was reviewed by the principal, Mr. James Dundee. 	He affirmed the
HIB finding and Mr. Dicken then approved the HIB finding. A letter from the principal to
D.P.’s parents regarding the HIB complaint involving their son was sent on March 29,
2018 (R-C). 	This was two days after the email sent by A.G.’s mother. 	Also, on March
29, 2018 a letter was sent to the parents of A.G. advising that A HIB investigation was
being conducted concerning their son being the target of an act of HIB (R-G). A letter of
April 20, 2018 was also sent to the parents of A.G. advising them of the results of the
investigation. 	The results of the investigation were that a violation of the schools’ code
of conduct had taken place and that interventions and remedial measures were put into
place (R-H). 	The final results of the investigation that Mr. Dicken signed off on were
contained in exhibit R-F which bears his signature.
Mr. Dicken approved the in-school suspension punishment for D.P. 	An April 23,
2018 letter was sent out to D.P.’s parents alerting them to the findings and advising
them of their rights to appeal (R-D). 	These are the standard letters the District uses
advising the parties of the investigation and outcome. 	D.P.’s parents requested a
hearing before the Board of Education and Mr. Dicken sent them a letter dated April 30,
2018 advising them that the hearing was scheduled for May 9, 2018 (R-B). 	The
minutes of the Executive Session of the Board of Education for May 9, 2018 reflect that
D.P.’s mother had a hearing in front of the Board regarding a HIB violation against her
son. 	J.P. had a written statement that she read to the Board. 	Some questions were

13
asked of her and she thanked the Board (R-N). 	After J.P. left the Board meeting, the
HIB team 	including Mr. Ferrari, Ms. White and Dr. Heiken spoke and answered
questions of the Board and Mr. Dicken reviewed the HIB policy with the Board as to
what qualified as HIB. 	He does not remember the discussion between the Board and
the HIB team, but it took a few minutes longer than J.P.’s presentation. A decision was
not reached by the Board at the May 9, 2018 meeting. 	The Board revisited the matter
at the June 20, 2018 meeting which was the next board of education meeting. 	The
Executive Session meetings for June 20, 2018 indicated that Mr. Dicken recommended
affirming the HIB determination for D.P.(R-W). Mr. Dicken sent a letter to D.P.’s parents
on June 25, 2018 advising them that the Board affirmed the results of the HIB
investigation and further advised them of their right to appeal to the Commissioner of
Education (R-E). The next thing Mr. Dicken received regarding this dispute was the due
process petition.
D.P. 	received 	an 	in-school 	suspension 	which 	was 	not 	the 	most 	severe
punishment. 	The fact that D.P. was found to have violated the school HIB policy and
received an in-school suspension does not become a part of his school record and
would not be provided to anyone requesting his school records including employers or
colleges.
On cross-examination, the Board voted on Mr. Dicken’s recommendation to find
a HIB violation. 	The Board was not provided with all of the witnesses’ statements. 	Mr.
Dicken briefly reviews the facts of the case in open session without identifying the
students. 	His recollection was that J.P. was asked questions by the Board when she
said she was not asked any questions by the Board. The Superintendent is the last one
to review the investigation and he reviewed it all. He was comfortable with the materials
presented to him and his discussions with the HIB team. He was okay with the teacher
not being interviewed based on what was presented to him.
D.P. testified on his own behalf. 	He admitted that he called A.G. and others in
his shop class ‘gay’. 	A.G. called D.P. and others ‘gay’ also. 	He did not think A.G. was
gay. 	A.G. had a girlfriend at the time. 	D.P. did not call A.G. ‘gay’ with intent to cause
him harm.

14
Discussion
Credibility contemplates an overall assessment of the story of a witness in light of
its rationality, internal consistency, and manner in which it “hangs together” with other
evidence. 	Carbo v. United States, 314 F.2d 718 (9 th Cir. 1963). 	A trier of fact may
reject testimony because it is inherently incredible, or because it is inconsistent with
other testimony or with common experience, or because it is overborne by other
testimony. 	Congleton v. Pura-Tex Stone Corp., 53 N.J. Super. 282, 287 (App Div.
1958).
In general, I believe all of the witnesses testified credibly, however Mr. Ferrari’s
testimony regarding the existence of an imbalance of power due to A.G.’s sexual
orientation was not supported by the record. 	A review of the record indicates that the
respondent basically found D.P. to have committed a HIB violation because D.P.
admitted that he called A.G. gay. There was no consideration given to D.P.’s motivation
in making the statement. 	He was not motivated to make the statement based on an
actual or perceived characteristic such as sexual orientation because D.P. knew A.G.
was straight. 	Mr. Ferrari admitted he did not think D.P. believed A.G. was gay. 	There
can be no HIB finding without the required motivation. Mr. Ferrari testified that had D.P.
not made the admission there would have been a different outcome. 	It is interesting to
note that G.C. who did not admit to calling A.G. gay, but was said to have called A.G.
gay by another witness J.M., was only found to have violated the Student Code of
Conduct. J.M. also stated in his written statement that he did not know if the statements
were made in jest. 	Mr. Ferrari also initially testified candidly that he did not know and
could not say whether D.P., under the circumstances, knew or should have known that
his comments would cause harm to A.G. and he really did not know how to answer that
question. Respondent’s HIB policy, as written, did not require an initial finding that D.P.
knew, or should have known, under the circumstances that his conduct would cause
harm to A.G.
Although Mr. Nicastro was called as an expert to defend respondent’s HIB policy
as conforming to the statute, I was not persuaded by his explanation, since he admitted
that the school policy does not mirror N.J.S.A. 18A:37-14 and that the statute controls
and is the best evidence of the legislative intent.

15
Based upon due consideration of the testimonial and documentary evidence
presented at this hearing, and having had the opportunity to observe the demeanor of
the witnesses and assess their credibility, I FIND the following as FACTS:
A.G., a classmate of D.P., had given a written statement dated March 27, 2018
indicating that in the last couple of months, students in his shop class had been making
rude remarks/comments to him, including D.P., G.C., J.M. and M.A. (R-L). 	Petitioner’s
son, D.P. gave a written statement dated March 28, 2018 to his guidance counsellor
and the schools HIB specialist, Edward Ferrari, wherein D.P. wrote,
“Yes, I called him gay but in a joking matter. 	We all know we are
straight and mess with each other. 	I never meant it to be in a
serious matter and truly apologize that it was taken the wrong
way.”
D.P. further added to his statement on April 6, 2018, following the suggestion of
Mr. Ferrari, that:
“In the beginning of the year, our shop class had an inside joke,
“Dude, you’re gay” and we all made sure no one would be offended
by it. 	We all said to each other all the time knowing it was a joke.
A.G. would say it as much as everyone else. 	I don’t understand
why people would get offended if they are saying it too.” (R-J).
Written statements were also taken from the other accused students G.C., J.M.
and M.A., none of whom admitted to making any rude comments to A.G. (R-P). 	J.M.’s
statement corroborated that G.C. also called A.G. gay. 	Other independent witnesses,
A.U. and A.R., were also interviewed and stated that they did not notice anyone picking
on A.G (R-Q). No statement was taken of the shop teacher, Mr. McCoy, in whose class
the incidents occurred because Mr. McCoy had advised Mr. Ferrari that he did not hear
or observe any HIB conduct in his classroom, or he would have prevented and reported
same.
J.M. and M.A. were exonerated. G.C. was found not to have committed an act of
HIB, but to have violated the Student Code of Conduct and received a 3:00 p.m. – 6:00

16
p.m. detention. 	D.P. was found to have committed an act of HIB by making insulting
and demeaning comments and received an in-school suspension (R-F).
Out of the four boys who were accused, the fact that D.P. admitted to calling A.G.
‘gay’ was the basis for respondent’s finding that D.P.’s conduct was in violation of
respondent’s HIB policy and not the others.
D.P. did not believe that A.G. was gay.
D.P.’s statements to A.G. that “Dude, you’re gay” were not motivated by any
actual or perceived characteristic such as sexual orientation. 	The statements were
motivated by D.P. and other students joking around with each other.
D.P. did not know, nor reasonably should have known that his comments would
cause harm to A.G. as they were made in jest and that D.P. knew A.G. was not gay and
had a girlfriend.
I further FIND as FACT that the Board’s HIB definition as set forth in its Policy
5512 B and also as set forth in its HIB Investigation Report (R-F) does not conform to
the HIB definition set forth in N.J.S.A. 18A:37-14. 	N.J.S.A. 18A:37-14 does not contain
an or between sections (a) and (b). The statute as written demonstrates the legislative
intent and is controlling.
LEGAL ANALYSIS AND CONCLUSION
New Jersey enacted the Anti-Bullying Bill of Rights Act (Act) to strengthen the
standards and procedures for preventing, reporting, investigating, and responding to
incidents of harassment, intimidation, and bullying of students that occur in school and
off 	school premises. 	N.J.S.A. 18A:37-13.1(f). 	Definitions relative to adoption of
harassment and bullying prevention policies are found in N.J.S.A. 18A:37-14, which
states in part:
“Harassment, intimidation or bullying” means any gesture,
any 	written, 	verbal 	or 	physical 	act, 	or 	any 	electronic
communication, whether it be a single incident or a series of

17
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.
The Commissioner of Education will not overturn the decision of a local board in
the 	absence 	of 	a 	finding 	that 	the 	action 	below 	was 	arbitrary, 	capricious 	or
unreasonable. 	T.B.M. v. Moorestown Bd. of Educ., EDU 2780-07, Initial Decision
(February 6, 2008) (citing Thomas v. Morris Twp. Bd. of Educ., 89 N.J. Super. 327, 332
(App. 	Div. 	1965), 	aff’d, 	46 	N.J. 	581(1966)), 	adopted, 	Comm’r 	(April 	7, 	2008),
<http://njlaw.rutgers.edu/collections/oal/>. 	Further, 	the 	Commissioner 	will 	not
substitute his judgment for that of the board of education, whose exercise of its
discretion may not be disturbed unless shown to be “patently arbitrary, without rational
basis or induced by improper motives.” 	Kopera v. W. Orange Bd. of Educ., 60 N.J.
Super. 288, 294 (App. Div. 1960). 	New Jersey courts have held that “[w]here there is
room for two opinions, action is not arbitrary or capricious when exercised honestly and
upon due consideration, even though it may be believed that an erroneous conclusion
has been reached.” 	Bayshore Sewage Co. v. Dep’t of Envtl. Prot., 122 N.J. Super.
184, 199–200 (Ch. Div. 1973), aff’d, 131 N.J. Super. 37 (App. Div. 1974). 	Thus, in
order to prevail, the petitioner must demonstrate that the Board acted in bad faith, or in
utter disregard of the circumstances before it. 	T.B.M., EDU 2780-07, Initial Decision

18
(February 6, 2008), <http://njlaw.rutgers.edu/collections/oal/>; See W.C.L. and A.L. ex
rel L.L. v. Tenafly Bd.
Petitioner 	bears 	the 	burden 	of 	proof 	by 	a 	preponderance 	of 	the 	credible.
Atkinson v. Parsekian, 37 N.J. 143, 149 (1962); DYFS v. M.R., 314 N.J. Super. 390,
414 (App. Div. 1998); In re Allegations of Sexual Abuse at E. Park High Sch., 314 N.J.
Super. 149, 168 (App. Div. 1998). 	This tribunal has the duty to decide in favor of the
party on whose side the weight of the evidence preponderates, and according to a
reasonable probability of truth. 	Jackson v. Del., Lackawanna and W. R.R., 111 N.J.L.
487, 490 	(E.&A. 1933). 	Evidence 	is said 	to preponderate 	“if 	it 	establishes 	‘the
reasonable probability of the fact.’” 	Jaeger v. Elizabethtown Consol. Gas Co., 124
N.J.L. 420, 423 (Sup. Ct. 1940) (citation omitted). 	The evidence must “be such as to
lead a reasonably cautious mind to the given conclusion.” 	Bornstein v. Metro. Bottling
Co., 26 N.J. 263, 275 (1958).
A close review of respondent’s HIB Policy 5512 B, “Harassment, Intimidation and
Bullying,” indicates that the Board’s definition of HIB does not mirror the New Jersey law
in that respondent’s policy contains an “or” between 3(a) and 3(b) whereas N.J.S.A.
18A:37-14(a) and (b) does not. 	The plain reading of the statute is that a reasonable
person should know, under the circumstances that the conduct will have the effect of
harming a student and the conduct has the effect of insulting or demeaning a student or
creates a hostile educational environment for the student. 	The legislature, in enacting
the statue, did not choose to insert an “or” between N.J.S.A. 18A:37-14(a) and N.J.S.A.
18A:37-14(b). 	Therefore, the statute should be read in the conjunctive which requires
an initial finding that a reasonable person knew or should have known that the conduct
would have the effect of harming a student. 	The statute was not written to be a strict
liability statute and first requires a finding that the actor knew or should have known that
the conduct would cause harm. 	To the extent that respondent has implemented HIB
Policy 5512 B which sets forth a broader definition of HIB than set forth in N.J.S.A.
18A:37-14, I CONCLUDE that respondent has acted in a manner that is arbitrary,
capricious and unreasonable.
It is clear that in determining whether a HIB violation took place, respondent did
not consider whether D.P. knew or should have known under the circumstances that his

19
conduct would have the effect of harming A.G. 	Mr. Ferrari initially indicated that he did
not know and that it was difficult for him to answer that question. Later in his testimony
he indicated that D.P. was a smart boy and should have known his comments would
cause harm. However, when finding a HIB violation according to their policy 5512 B as
written, the respondent only had to satisfy one of the three prongs, either 3(a) or 3(b) or
3(c). 	Their focus was that D.P. admitted to making the comments and that the
comments insulted, and demeaned A.G. 	Mr. Ferrari testified that the outcome would
have been different if D.P. had not admitted to calling A.G. gay.
D.P. admitted that he called A.G. gay, however explained that it was a joke and
that they all called each other gay, even though they all knew they were all straight.
D.P. did not know, or should he have known, under the circumstances, that his
comments to A.G. would have the effect of causing him harm, since he did not believe
him to be gay and the boys were all joking with each other. 	D.P. did not believe that
A.G. was gay and knew he had a girlfriend. 	D.P.’s comments were not motivated by
any actual or perceived characteristic, such as sexual orientation, because D.P. knew
A.G. was straight, had a girlfriend, was not gay and the boys were all joking with each
other in calling each other ‘gay’.
Since 	D.P.’s 	comments 	were 	not 	motivated 	by 	any 	actual 	or 	perceived
characteristic, such as sexual orientation, his conduct does not rise to the level of a HIB
violation. 	His comments, although certainly not condoned by this tribunal, at most
would be more appropriately characterized as constituting a violation of the school code
of conduct for making insulting and demeaning comments to A.G. D.P. was candid and
truthful 	in 	admitting 	to 	calling 	A.G. 	gay. 	He 	also 	explained 	the 	circumstances
surrounding the comments. I CONCLUDE that the respondent found D.P. in violation of
the HIB policy because of D.P.’s admission yet acted in utter disregard of the facts in
failing to consider D.P.’s explanation of the circumstances surrounding the comments
and the fact that D.P.’s comments were not motivated by any actual or perceived
characteristic, such as sexual orientation of A.G.
A.G. had accused three other students of making rude remarks to him. 	There
was corroboration by at least one other student, J.M., (in addition to A.G. and D.P.) that
G.C. also called A.G. ‘gay’ (R-P). 	G.C. was charged with a code of conduct violation

20
and received a 3:00 p.m. – 6:00 p.m. detention, whereas D.P. was found to have
committed a HIB violation and received a one day in-school suspension. 	I further
CONCLUDE that respondent’s disparate treatment of D.P. in sustaining a HIB violation
against him and imposing more severe punishment for the same conduct as G.C., is
arbitrary, capricious and unreasonable.
Based on the whole of the credible evidence presented, I CONCLUDE that
petitioner has met her burden of proof that the respondent acted in an arbitrary,
capricious and unreasonable manner in finding that D.P.’s conduct constituted an act of
HIB as set forth in N.J.S.A. 18A:37-14.
ORDER
Based on the foregoing, I ORDER that the petition be GRANTED. 	The Board’s
decision finding D.P. to have committed an act of HIB is REVERSED and AMENDED to
a finding that D.P.’s conduct constituted a violation of the Student Code of Conduct.
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.

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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.
February 5, 2020
DATE 	CATHERINE A. TUOHY, ALJ
Date Received at Agency: 	February 5, 2020 (emailed)
Date Mailed to Parties:
CAT/mel

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APPENDIX
LIST OF WITNESSES
For Complainant:
D.P.
For Respondent:
Edward Ferrari
Philip Nicastro
Michael Dicken
LIST OF EXHIBITS IN EVIDENCE
For Complainant:
None
For Respondent:
R-A 	GCIT Parent/Student Handbook Excerpt (two pages)
R-B 	April 30, 2018 letter from Superintendent to D.P.’s parents
R-C 	March 29, 2018 letter from Principal to D.P.’s parents (two pages)
R-D 	April 23, 2018 letter from Principal to D.P.’s parents
R-E 	June 28, 2018 letter from Superintendent to D.P.’s parents
R-F 	Respondent’s HIB Investigation Report Form (four pages)
R-G 	March 29, 2018 letter from Principal to A.G.’s parents (two pages)
R-H 	April 20, 2018 letter from Principal to A.G.’s parents
R-I 	Petition dated September 9, 2018 (two pages)

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R-J 	D.P.’s written statement
R-K 	Respondent’s HIB Policy 5512 (seventeen pages)
R-L 	A.G.’s written statement
R-M 	SSDS Incident Report Form (three pages)
R-N 	May 9, 2018 Executive Session Meeting Minutes
R-O 	N.J.S.A. 18A:37-14
R-P 	Written statements of J.M., M.A. and G.C. (three pages)
R-Q 	Written statements of A.U. and A.R.
R-R 	Consequences and Remedial Measures form (two pages)
R-S 	Certification of Michael Dicken (three pages)
R-T 	January 28, 2018 email from D.P.’s mother to Mr. Branderbit
R-U 	J.P.’s April 17, 2018 email to the Principal; D.P.’s parents April 30, 2018
letter to the Superintendent; and written statement read by J.P. to the
Board at meeting of May 9, 2018 (three pages)
R-V 	Initial Report of HIB and March 27, 2018 email from A.G.’s mother (two
pages)
R-W 	June 20, 2018 Executive Session Meeting Minutes
R-X 	Certification of Edward Ferrari (three pages)
R-Y 	May 21, 2019 email Opinion Letter from Strauss Esmay Associates to Mr.
Dicken with attachments (R-Y, 1 – 3) (seventeen pages)