By Michael Kaelber, Esq., Coordinator of Continuing Legal Education and Research, LEGAL ONE
School districts must annually conduct a re-evaluation, reassessment, and review of their policy on harassment, intimidation and bullying (HIB), and make any necessary revisions and additions. For school districts to engage in an informed HIB policy review, it is important to be aware of recent HIB case law developments, particularly appeals of HIB decisions to the Commissioner of Education. This article highlights certain trends in recent HIB case law. For a full summary of all Commissioner of Education decisions on HIB appeals in 2024 and through May of 2025, click here.
Key Takeaways From the 2024 and 2025 Commissioner of Education HIB Decisions
After reviewing the 17 Commissioner decisions of 2024 and the 13 Commissioner decisions issued to date in 2025, there are certain key HIB takeaways that can inform school administrators to assist them in their decision making and planning.
TAKEAWAY: For an action to be deemed to be an act of HIB, the board of education must determine that all three elements of the definition have been satisfied. If one part of the definition has not been satisfied, there is no HIB.
The HIB Definition
In deciding on an HIB appeal, the Commissioner reviews the statutory HIB definition to be sure that all elements of the definition have been appropriately addressed by the board. As discussed below, when a required element, such as the actual or perceived distinguishing characteristic, is missing, there cannot be a finding that HIB has occurred.
N.J.S.A. 18A:37-14 defines HIB as:
- any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic,
- that takes place on school property, at any school-sponsored function, on a school bus, or off school grounds;
- that substantially disrupts or interferes with the orderly operation of the school or the rights of other students; and
- that satisfies at least one of the following conditions:
- 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; OR
- has the effect of insulting or demeaning any student or group of students; OR
- 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.
TAKEAWAY: In reviewing the board of education HIB decision, the Administrative Law Judge (ALJ) and Commissioner will give deference to the investigation and decision making of the board of education.
The board decision will not be overturned unless the Commissioner determines that the board acted in an arbitrary, capricious or unreasonable manner, without rational basis, or induced by improper motives. That does not mean that the Commissioner agrees with the board decision; it just means that the board has not gone so off the rails that the Commissioner must overturn the decision.
The following 2024/2025 Commissioner decisions are three of the nine examples of where the board of education found that an act of HIB had occurred and its finding was upheld by the Commissioner.
- K.W. and S.W. o/b/o A.W. v. BOE of the School District of the Chathams, 3/15/2024 – BOE determined that student committed an act of HIB by posting the word “N…Rs” to a SnapChat chat group multiple times using a Chat Bot artificial intelligence app that could create words; other members of the group posted the word “N…A.” Chat group consisted of several ninth grade boys, one of whom was black. Although the student contended that he quickly deleted the post, a few of the other boys screenshot the post, thereby preserving its content. ALJ determined that the posting of the word “N…Rs” was an intentional act that could not be accidently generated; was directed at victim based upon his race, harmed the victim and disrupted school functions.
- H.P. o/b/o R.S. v. BOE of the Borough of Tenafly, 3/26/2024 – BOE determined that student committed an act of HIB when he made antisemitic comments and threats of physical harm on Instagram with a Jewish student. Comments and threats followed text exchanges between the students which included back-and-forth insults regarding the other’s perceived soccer skills. Student statements were specifically targeted at the victim’s religion, a distinguishing characteristic. Messages threatened physical harm on the victim with comparisons to Adolph Hitler and the Holocaust. Comments and threats were not just “trash talk,” but escalated into hate speech.
- J.G. o/b/o S.G. v. BOE of the Borough of Bergenfield, 3/31/2025 – BOE determined that student committed an act of HIB when she was intentionally verbally abusive to another student based on her appearance, causing her to cry and be fearful of attending school. Incident, a dispute over a toy magnifying glass in a LEGO house, took place between four seven-year-old second graders. The dispute escalated to name calling, “stealer” and “fat,” eventually causing the victim and her friend to cry. ABS found that an incident of HIB had occurred, that punishment was not warranted and recommended student counseling and periodic check-ins.
TAKEAWAY: Not all aggressive, harmful and demeaning conduct constitutes HIB. Schools generally address these issues through the code of conduct.
The following 2024/2025 Commissioner decisions are three of the twelve examples of where the board of education found that no act of HIB had occurred and its finding was upheld by the Commissioner. In most cases no distinguishing characteristic was found to have motivated the bad behavior; that portion of the HIB definition was not met.
- C.S. o/b/o C.S. v. BOE of the Borough of the Bridgewater-Raritan Reg. Sch. Dist., 4/29/2024 – BOE found no act of HIB occurred when several students teased a middle school classified student, by referring to him as a “school shooter” on six different occasions. The student had been suspended for violating the school’s code of conduct when he brought a nerf gun to school. BOE conducted a code of conduct investigation as the name-calling at issue was not based upon any distinguishing characteristic; not related to the student’s disability. Students’ conduct was inappropriate and hurtful, and discipline was warranted, but not HIB.
- H.R. o/b/o N.R. v. BOE of the Township of Long Hill, 3/7/2025 – BOE determined that music teacher had not committed an act of HIB when he grabbed a sixth grade student by her arm and asked if she had “lost her mind.” ABS determined no HIB occurred as matter was not reasonably perceived as being motivated by any actual or distinguishing characteristic. While not HIB, teacher’s actions were unacceptable, and proper consequences were administered.
- D.M. o/b/o Z.E. v. BOE Of City of Ventnor, 5/8/2025 – BOE determined that there was no HIB by either of two students against the other, but that there were ongoing interactions of conflict between the students which resulted in code of conduct discipline. Neither student reported that the other made any comments or gestures when the bump and punch exchange occurred to indicate either student was motivated by a racial characteristic of the other. Even the “ugly animals” comment had no other context other than the first student stating the name of the book with the intention of inflicting harm to second student. No distinguishing characteristic found.
TAKEAWAY: Intent to harm by the alleged bully is not required, only that a reasonable person should know that there would be a harmful effect, not that the actor knows there would be such an effect or intended such an effect. The pertinent inquiry is whether the victim reasonably perceived the conduct was motivated by a distinguishing characteristic.
The following are 2024/2025 Commissioner decisions where the concept of intent to harm was addressed.
- S.P. o/b/o E.P. v. BOE of the Township of Montgomery, 2/7/2025 – BOE determined that student committed an act of HIB when he called his fifth-grade classmate, who received special services through a 504 plan, a “retard” in front of the language arts class and again the next day while standing in line for recess. Name calling was in response to misconduct suffered by the alleged bully; being poked in the leg with a pencil. Actual intent or motivation is not necessary. Pertinent inquiry is whether victim reasonably perceived the conduct was motivated by a distinguishing characteristic, in this case, student’s disability.
- See also S.H. and J.H. o/b/o G.H. v. BOE of the West Essex Reg. Sch. Dist., 3/24/2025 (student called another student “retard”, no need to prove intent, comment reasonably perceived as related to victim’s disability).
TAKEAWAY: A student may be a victim of HIB even if they are not the intended target of the comment or action or part of the conversation. A matter may be reported by a third-party bystander to a school administrator who may determine that an act of HIB has occurred.
The following is a 2024 Commissioner decision where the victim was not present when the act of HIB occurred.
- J.R. o/b/o T.R. v. BOE of the Township of Long Hill, 12/9/2024 – BOE determined that eighth grade student committed an act of HIB, when, as part of a group of seven middle school students, made numerous demeaning comments about another middle school student on an approximately 20 person Snapchat thread; thread involved not only students in the middle school but students from outside the school district as well. Comments were vulgar and attacked victim’s appearance, weight, and sexual orientation.
Victim was not a direct participant in the Snapchat thread. Snapchat comments were made known by a participant to the school counselor, who referred the matter to the principal. The reporting student was very concerned about retaliation. Her parents signed her out of school, and she was home schooled for the rest of the school year.
Principal and ABS found that the student had also committed an act of HIB. In addition to the six-day OSS, ABS recommended additional remedial measures, including meeting with a school counselor, a reflective writing assignment, and an in-home risk assessment supplemented by an additional parent meeting.
TAKEAWAY: If accused of an act of HIB, teachers, counselors, coaches and school administrators are entitled to the same HIB due process guarantees as students.
The following is a 2025 Commissioner decision where an accused teacher’s due process was violated and the board of education decision was reversed.
- Obasi v. BOE of the South Orange-Maplewood School District, 3/3/2025- BOE determined that teacher committed an act of HIB when she raised her voice and threatened physical harm to a student with a disability. Teacher told student that she was a “bad child” and that she would “take her earrings off and beat her.” BOE determined that threat was an act of corporal punishment, met the standard for HIB and was motivated by the fact that teacher considered the student a “bad child.” ABS’s conclusion did not reference teacher’s comment that “student should spend a week in the hood because she wouldn’t make it because she is the only white kid in her class.” (Student was black and had been adopted by two British parents.) The racial comment was relied upon by BOE at the hearing and in the decision as evidence of “ongoing harassment motivated by race” and a violation of the HIB policy.
ALJ and Commissioner determined that finding a HIB violation based upon a previously unreported and uninvestigated allegation is contrary to the requirements of the ABRA as it would negate the protections, including notice and due process, afforded to those accused of HIB. BOE decision that the teacher committed an act of HIB was arbitrary, capricious and unreasonable and was reversed.
Conclusion
For school districts to make an informed decision on the annual HIB policy review, it is important to be aware of recent HIB case law developments. A review of the information set forth in this article will go a long way to informing school administrators how to best improve the school districts HIB policy and implementation to provide the best school climate possible for their students.