Harassment, Intimidation and Bullying (HIB) in New Jersey Schools – A Data and Case Law Update

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By Michael Kaelber, Esq., Coordinator of Continuing Legal Education and Research, LEGAL ONE

New Jersey’s Anti-Bullying Bill of Rights Act (ABRA) requires each school district to have a policy prohibiting harassment, intimidation or bullying (HIB) on school property, at a school-sponsored function or on a school bus. The ABRA requires school districts to identify, investigate and report on alleged acts of HIB including consequences and appropriate remedial action for a person who commits an act of HIB. School districts must annually conduct a re-evaluation, reassessment, and review of its policy, making any necessary revisions and additions, including input from the school districts anti-bullying specialists and school safety/school climate teams in conducting its re-evaluation, reassessment, and review. 

For school districts to make an informed decision on the annual HIB policy review, it is important to be aware of recent HIB data trends and case law developments. This article provides an update of that information.

Commissioner of Education Annual Report – The New Jersey Department of Education recently issued the Commissioner’s Annual Report to the Education Committee of the Senate and General Assembly; Student Safety and Discipline in New Jersey Public Schools School Year 2023-24. This report includes information from school districts on disciplinary infractions and their consequences, including statewide information on incidents in the categories of harassment, intimidation, and bullying (HIB), substance, vandalism, violence, and weapons. With respect to statewide HIB data, the report stated:

Reporting Year      HIB Investigations      Confirmed Acts of HIB

2021 – 2022           17,331                              7,672

2022 – 2023           22,022                            9,011

2023 – 2024           21,189                             8,494

Except for the COVID years of 2019-2020 and 2020-2021, these numbers have been consistent since 2012-2013. The numbers should also be viewed in the context of the fact that there are approximately 2500 school buildings in the state of New Jersey. That means that on average, there are about 7-9 HIB investigations and 3-4 confirmed acts of HIB per school annually. That seems like a relatively low number of incidents and may be attributable to several factors including excellent anti-bullying policies, welcoming school climate and programming and in some cases underreporting. 

It should be noted that the Commissioner’s Annual Report did not address any data on preliminary determinations, made under the school district’s policy, by building principals, that a reported incident or complaint is outside the scope of the definition of HIB. Every school district has that data locally and should take it into account in its annual review. 

Commissioner of Education Case Law Update

Final decisions of the board of education regarding matters of HIB may be appealed to the Commissioner of Education, no later than 90 days after the issuance of the board’s decision. In addition, a parent, student, guardian, or organization may file a complaint with the Division on Civil Rights within 180 days of the occurrence of any incident of HIB based on protected class status as set forth in the NJ LAD. This article will examine decisions by the Commissioner of Education over the calendar years 2024 and 2025.

While thousands of investigated and confirmed acts of HIB occur in school districts every year, a much smaller number are appealed to and decided by the Commissioner of Education. The number of HIB cases decided by the Commissioner in recent years are:

  • 2020 – 9
  • 2021 – 12
  • 2022 – 6
  • 2023 – 14
  • 2024 – 17
  • 2025 – 13 to date

The relatively small numbers may reflect satisfaction with the outcome at the board of education level, an understanding that decisions from the Commissioner of Education do not provide for damages or attorneys’ fees or perhaps just an unwillingness to spend the time, energy and expense of an appeal. Clearly, people who appeal their HIB case to the Commissioner are serious about the matter. 

Standard of Review

When the Commissioner of Education reviews a board of education decision, be it HIB or any other decision, the board decision is given great deference. The decision will not be overturned unless the Commissioner determines that the board of education 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 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 satisfied. 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 conditionsw:
    • 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.

For an action to be determined to be an act of HIB, all three elements of the definition must be satisfied. Most Commissioner decisions go through each step of the definition in determining to affirm or reverse a board of education decision. 

Commissioner Decisions that Upheld the Board of Education Decision

  • S.G. o/b/o B.H. v. BOE of the Twp of Montvale, 1/26/2024 – BOE determined that cheerleader was not the victim of HIB by coach. Alleged misconduct by cheerleading team members and their parents including being excluded by team members during trip to national cheer competition. Alleged victim did not sit with other seniors on the plane flight and other parents were critical of mother on social media. No distinguishing characteristic found. 
  • D.H. o/b/o O.H. v. BOE of the Township of Gloucester, 3/1/2024 – BOE determined that three aggressive, unprovoked incidents by classified student, with recognized impulse control difficulties, were not HIB. Student’s aggression and threatening language (jumping on and threatening to kill victim) violated the school’s code of conduct, for which student was appropriately disciplined. No distinguishing characteristic found.
  • R.R. o/b/o A.R. v. BOE of the Borough of Ramsey, 3/8/2024 – BOE determined that student committed an act of HIB when he made racially motivated, insulting, or demeaning comments to the victim at recess (you’re black and “black is bad”) which upset victim, made her cry and created a hostile educational environment. HIB finding upheld. 
  • 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 student contended that he quickly deleted the post, a few of the other boys screenshot the post, thereby preserving its content. The electronic communication occurred on school property during school hours, disrupted the orderly operation of the school and triggered the HIB investigation. 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. 
  • 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, along with other harassing and threatening comments. 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 rather than a HIB investigation. Name-calling at issue was not based upon any distinguishing characteristic. Nothing in the record suggested that student’s decision to bring a nerf gun to school was related to any mental disability or that the students taunting him because of his poor choice were making such a connection. Students’ conduct was inappropriate and hurtful, and discipline was warranted, but no distinguishing characteristic and no HIB. “Cruel words will not be tolerated in a school environment.” 
  • E.H. and B.H. o/b/o J.H. v. BOE of the Twp. of Jefferson, 5/30/2024 – BOE determined that fifth grade student committed an act of HIB against a female classmate when he placed his hands in her lap. Parents contended that student did not fully understand his conduct because of behavioral dysregulation and other disabilities. Incident took place on school grounds and was recorded on a video camera in the school hallway. Female victim could reasonably perceive student’s actions, i.e. touching the area of her “private parts”, to be motivated by her gender; victim reported being scared and uncomfortable. Victim was reluctant to attend school the next day and asked to be excused from a group activity, which interfered with her rights and education. Alleged bully’s reactions, upon observing his conduct on video, demonstrated that he recognized the nature of his behavior, and he apologized. Discipline for the HIB action was student counseling and a one-day suspension. 
  • A.P. o/b/o A.P. v. BOE of the City of Burlington, 8/23/2024 – BOE determined that lunchroom aide’s actions were not an act of HIB as her behavior was not motivated by an actual or perceived distinguishing characteristic. Allegations were that on separate occasions, the lunchroom aide made student sit by herself at lunch, miss recess for doing nothing wrong, and cry; there was an acrimonious personal history. Student was disciplined (reprimand) for not following school rules. ABS recommended that lunchroom aide not interact with student at lunch or recess. Lunchroom aide was reassigned to a different lunch period. Disputes about relationships or aggressive conduct without identifiable motivation, does not come within the statutory definition of bullying. 
  • R.F. o/b/o O.F. v. BOE of the Township of Montclair, 10/10/2024 – BOE determined that no HIB occurred regarding allegations that fifth-grade child had, in a series of incidents, been taunted and kicked by classmates as a result of perceived gender identity, which interfered with his ability to learn. BOE could not substantiate any verbal or physical act occurred in the school bathroom, nor could it substantiate that alleged victim was ever physically assaulted by the alleged offenders. BOE determined that the incidents were unsubstantiated and did not constitute HIB. ABS recognized that a social conflict existed between the boys— likely due to the alleged victim being new to the school. Administrators implemented mediation sessions and a safety plan so that alleged victim could utilize a private bathroom near the nurse and the main office.
  • 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.

    Seven students were found to have violated the Code of Conduct and received varying levels of discipline depending on the frequency and significance of the comments. The lead student received the highest level of discipline (six-day OSS) and was not the only student to receive that level of discipline.

    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. Student’s Snapchat comments included, among others, that the target student “looks like medusa with her new hair”; “her and [another student] probably weigh as much as our whole friend group combined”; “nobody can ever say she wakes up on the wrong side of the bed because she wakes up on both”; “she takes up more storage than my PC has”; and “why would she even take mirror pics like you can’t even see part of her cause it goes past the mirror.” Comments were physically and emotionally harmful, insulting and demeaning and created a hostile educational environment.

    Commissioner held that BOE’s finding of HIB and the six-day OSS discipline did not violate student’s first amendment rights; decision contained a detailed First Amendment analysis, citing Tinker v. Des Moines and Mahanoy Area Sch. Dist. v. B.L.

  • R.M. and J.M. o/b/o O.M. v. BOE of the Borough of Mountain Lakes, 12/9/2024 – BOE determined that ninth grade student committed an act of HIB against an African-American student when he made a comment directed at the student that included the “N-word.” Student denied using the N-word and stated he said “move, move, move” or “move Nikki move.” ABS investigators concluded that an act of HIB had occurred; victim was targeted based on her race and color and feared being verbally harassed by the alleged offenders inside of school. Student was given 3 days OSS and counseling was provided to the victim.

    BOE, after hearing, vacated HIB finding and remanded to administration. The second investigation concluded that an act of HIB had occurred. Superintendent found the complainant to be credible and noted her visceral reaction caught on surveillance camera, indicating her displeasure with the use of the N-word. Use of the N-word towards victim, who is African-American; was reasonably perceived to have been motivated by the complainant’s race; interfered with the victim’s rights, emotionally harmed the student, placed the student in reasonable fear of physical or emotional harm, was insulting and demeaning and created a “hostile educational environment for the student.”

  • G.W. and K.W. o/b/o M.W. v. BOE of the Borough of Ringwood, 12/19/2024 – On remand, BOE determined that student was not the victim of HIB. Allegation was that sixth-grade teacher had committed an act of HIB against student, who had ADHD, stemming from a three-page assignment. Nothing in the record indicated that student was adversely affected by the assignment. Nothing in the record indicates that any other student was adversely affected by the assignment and the alleged HIB, nor was the orderly operation of the school affected. In fact, the record was entirely devoid of evidence supporting any of the elements of a charge of HIB. It is of note that parents did not allow the school district’s HIB investigators to interview student about the alleged HIB.
  • R.F. o/b/o O.F. v. BOE of the Township of Montclair, 1/10/2025 – First incident – BOE determined that no HIB occurred when two classmates refused to play Jenga with a third classmate during indoor recess. No distinguishing characteristic was found. No proof that students knew or should have known that refusal to play would harm third classmate.

    Second incident – BOE determined that no HIB occurred when third classmate antagonized first classmate, made inappropriate comments, pinched and scratched him and threw Jenga pieces at students’ Jenga tower, trying to knock it down when they refused to let him play. No distinguishing characteristic found.

  • J.R. o/b/o P.R. v. BOE of the Township of Westampton, 1/21/2025 – BOE found no HIB in 2019-20 physical assault of second grade child by special education classmate with emotional regulation impairment. No distinguishing characteristic found. Alleged bully was moved to an out of district placement but returned to an in district school placement in 2022-23. Alleged bully made several comments to student which were perceived as threatening, leading to two HIB complaints. BOE found no HIB in either case; no distinguishing characteristic found.

    Parent appealed to the Commissioner seeking a finding of HIB, and programs and services for the alleged victim, including out of district placement. ALJ concluded case was moot because parent could not obtain an out-of-district placement for her child under the ABRA and all other relief that is available under the ABRA – such as counseling, teacher aides, monitors, supervision, and therapy – were already being provided to her. Commissioner – matter was not moot. ABRA entitles a petitioner to a determination of whether BOE’s finding that child was not the victim of HIB was arbitrary, capricious, or unreasonable. No evidence in the record that the conduct of the alleged bully, who was once again moved to an out of district placement, could be reasonably perceived as being motivated by an actual or perceived distinguishing characteristic. Alleged bully’s belief that victim was the cause of his disciplinary issues was not a distinguishing characteristic, but a personal dispute.

  • 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. Parent argued that student was not motivated by any actual or perceived characteristic and did not intend to harass, intimidate or bully the victim classmate. Name calling was in response to misconduct suffered by the alleged bully; being poked in the leg with a pencil. BOE determined that all aspects of the HIB definition were met. 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 Wehbeh.
  • 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 HIB against student because the incident was not motivated by a distinguishing characteristic. Sixth-grader had played several wrong notes on the recorder. Music teacher expressed frustration, adding that he was trying not to lose his temper. Student later heard music teacher call another student by a name other than his given name and insisted that music teacher call the student by his real name. Student said she was trying not to lose her temper. Music teacher grabbed student by her arm and asked if she had “lost her mind.” Both were speaking in raised voices. ABS determined no HIB occurred as matter was not reasonably perceived as being motivated by any actual or distinguishing characteristic.

    Music teacher did not know that student had ADHD or was on medication. Student did not have an IEP or 504 plan. While not HIB, teacher’s actions were unacceptable, and proper consequences were administered.

    BOE contacted DCF to report the incident. Institutional Abuse Investigation Unit (IAIU) stated that the matter did not warrant an investigation. Parent also contacted DCF which concluded that the allegation of physical abuse was not established.

  • M.A.T. o/b/o M.T. v. BOE of the Township of Holland, 3/17/2025 – BOE found that fifth-grade student committed an act of HIB when he used the word “garbage” in the vicinity of another fifth-grade student, knowing that student was sensitive to that word. BOE also found that the alleged bully was not the victim of HIB when alleged victim repeatedly sat next to him despite being admonished to keep her distance.

    Second incident – BOE correctly found that no HIB occurred when alleged victim repeatedly sat next to alleged bully on the “buddy bench.” No actual or perceived motivating distinguishing characteristic. Alleged victim acted in a manner that sought to distress alleged bully, which was successful; not appropriate but not HIB.

  • S.H. and J.H. o/b/o G.H. v. BOE of the West Essex Reg. Sch. Dist., 3/24/2025 – BOE determined that child committed an act of HIB when he called a black student a “monkey” in the hallway in front of a classroom. While admitting that the child “used a racial epithet” toward the victim, parent claimed it was in response to victim calling the child a “terrorist.” Actual intent or motivation is not a necessary component of HIB. Entirely reasonable for victim, who is black, to perceive that child calling her a “monkey” was racially motivated — regardless of actual intent. See Wehbeh

    Commissioner rejected parents’ hearsay objections. Hearsay evidence is admissible at the OAL, subject to the residuum rule. Critical evidence in this case is child’s own admission. Parent’s claims of procedural irregularities and alleged bias were unfounded and unsupported by the record.

    • 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 investigated the incident, confirmed the name-calling and found that an incident of HIB had occurred. ABS determined that punishment was not warranted and recommended student counseling and periodic check-ins. Victim confirmed that the counseling and check-ins helped and the environment at school has improved. 
  • R.Z. and L.D. o/b/o L.Z. v. BOE of Northern Valley Regional HS District, 4/28/2025 – BOE determined that head coach of the varsity boys’ basketball team’s alleged pattern and practice of abusive and retaliatory behavior against student and other members in the basketball program did not constitute HIB. Student was allegedly targeted based on his status as a special education student (ADHD). ABS determined that while a number of the allegations were found to be credible and that the evidence “did reasonably substantiate that there was evidence of a substantial disruption, hostile/harmful environment or an interference to the rights of the alleged victim,” no HIB occurred as “the investigation did not reasonably substantiate a distinguishing characteristic served as the motivating factor in this case.” Coach’s behavior towards student was motivated by multiple other factors, both personal to student (but not due to his learning disability) and his family, as well as his coaching style. No distinguishing characteristic found; no HIB. Coach received undisclosed disciplinary action.
  • 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. No distinguishing characteristic found.

    In the incident when one student bumped into the other while in line and second student responded by punching first student, nothing in the record demonstrated that the first student was motivated by second student’s racial or color characteristic to bump into her. 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.

Commissioner Decisions that Reversed the Board of Education Decision

  • Chercio v. BOE of the Scotch-Plains Fanwood Reg. School District, 3/15/2024 – BOE determined that H.S. gymnastics coach, no longer employed by the BOE, committed an act of HIB when, during an awards banquet, coach singled out a tenth-grade member of the gymnastics practice team, for not returning her gymnastics leotard in a timely fashion. Coach gave leotard back to the tenth-grade team member and told her to return it to the athletic director.

    Coach had directed team members to drop off team leotards in a box on her porch for reconditioning; gave them two weeks to do so; student missed the deadline. Student had dropped off leotard after coach had returned the leotards to the school.

    No evidence that conduct could have been reasonably perceived as being motivated by any distinguishing characteristic possessed by student, including an alleged lack of gymnastics ability; No evidence that coach’s conduct substantially disrupted or interfered with the orderly operation of the school or the rights of other students.

    Commissioner found that the Board’s HIB determination was arbitrary, capricious, and unreasonable. Coach’s actions at the awards banquet regarding the leotard— while clearly inappropriate and unprofessional—did not constitute HIB.

  • 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 one of her students, 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 an alleged racial 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.) BOE substituted race as a distinguishing characteristic at the BOE hearing. The alleged 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.

  • M.A.T. o/b/o M.T. v. BOE of the Township of Holland, 3/17/2025 – BOE found that fifth-grade student committed an act of HIB when he used the word “garbage” in the vicinity of another fifth-grade student, knowing that student was sensitive to that word. BOE also found that alleged bully was not the victim of HIB when alleged victim repeatedly sat next to him despite being admonished to keep her distance.

    First incident – BOE determined that the motivating characteristic for HIB was victim’s personality and her sensitivity to the word “garbage.” ALJ disagreed – victim’s personality and alleged sensitivity to the word “garbage” are not distinguishing characteristics; her sensitivity and her personality differed based on the person she encountered and her perception of them. A distinguishing characteristic cannot be fluid. Commissioner concurred with ALJ. While a broad range of characteristics may constitute a distinguishing characteristic under the Act, BOE was arbitrary, capricious, and unreasonable in determining that victim’s sensitivity to a specific term was a distinguishing characteristic. BOE decision was reversed.

  • M.D. o/b/o N.D. v. BOE of the Town of Westfield, 4/28/2025 – BOE determined that student with disabilities committed an act of HIB when he followed the ninth-grade female victim, who was walking home from school, told her that she was pretty, repeatedly asked her for hugs, and asked if he could lift up her backpack from behind to see how heavy it was, which she refused. Victim reported that she became fearful and repeatedly told the student to stop following her. She was too afraid to stop at home because she did not want the student to know where she lived. His actions made her feel uncomfortable and fearful of harm.

    N.J.A.C. 6A:16-7.7(a)2 requires that the consequences stemming from an HIB reflect the nature of the actions and the perpetrator’s disabilities, if any. Here, the discipline imposed was student counseling, a student conference, and IEP services review. BOE imposed no suspension and was aware of student’s disabilities, calling for an IEP services review following the HIB determination.

    Commissioner disagreed with ALJ’s conclusion that the BOE’s HIB determination was not arbitrary, capricious, or unreasonable. ABS HIB investigation concluded that the incident did not substantially affect the operation of the school or the rights of other students. BOE’s decision failed to provide any explanation for why it disagreed or disregarded the findings contained in the ABS investigation report or how student’s conduct met the statutory criteria. BOE’s decision lacked a rational basis. Student’s actions were clearly inappropriate, but not all such inappropriate behaviors constitute HIB. Record is devoid of any evidence that the incident, although understandably distressing, caused the victim to be so upset that she was “not fully available for learning.” The incident occurred after the school day ended. Victim attended school the next day. No substantial disruption, no hostile educational environment. BOE finding of HIB reversed.

Retaliation

N.J.S.A. 18A:37-15 states that the BOE HIB policy must contain “a statement that prohibits reprisal or retaliation against any person who reports an act of harassment, intimidation or bullying and the consequence and appropriate remedial action for a person who engages in reprisal or retaliation;” and “consequences and appropriate remedial action for a person found to have falsely accused another as a means of retaliation or as a means of harassment, intimidation or bullying”

N.J.S.A. 18A:37-16 states that “A member of a board of education, school employee, student or volunteer shall not engage in reprisal, retaliation or false accusation against a victim, witness or one with reliable information about an act of harassment, intimidation or bullying.”

  • P.P. o/b/o S.P. v. BOE of the City of Camden County Technical Schools, 11/13/2024 – BOE determined that an unfounded HIB complaint was not filed for retaliatory reasons. BOE determined that, while not meeting the statutory definition of HIB, the complaint against the student was legitimate, warranted investigation, was not retaliatory and was not arbitrary, capricious or unreasonable. The school principal and a member of the HIB investigation team provided “a reasonable, plausible, and sound justification why” the HIB complaint did not constitute retaliation. Record lacks evidence of retaliation. 
  • R.F. o/b/o O.F. v. BOE of the Township of Montclair, Commissioner 1/10/2025 – BOE determination of retaliation was not arbitrary, capricious or unreasonable. BOE determined that the student violated the district’s HIB policy, specifically, retaliation and false accusation, finding that the student targeted alleged victims and instigated conflicts, then reported that he was the victim. BOE found that student’s HIB allegations were unfounded and that student substantially interfered with the victim’s rights by making repeated allegations against him.
    While the Commissioner disagrees that being the subject of a prior unfounded HIB complaint constitutes a distinguishing characteristic, a distinguishing characteristic is not required for a finding that levying false HIB accusations against a student as a means of retaliation violated the BOE’s HIB Policy, as provided for by N.J.S.A. 18A: 37-15(b)(9). 

Procedural Issues – 90 Day Rule, Untimely Filing 

    • R.P. o/b/o S.P. v. BOE of the Borough of Westwood Reg. Sch. Dist. et. als., 5/6/2024 – Parent appealed 5/2/23 BOE decision confirming HIB. Appeal, to be timely, was required to be filed by July 31, 2023. Appeal was deemed filed 11/6/23; violated the 90 day rule; The petition was mailed on 7/28/23, received in Office of Controversies and Disputes 8/9/23, proof of service perfected on 11/6/23. Insufficient evidence to relax the 90 day rule.
  • A.B. o/b/o L.B. v. BOE of the Township of Pittsgrove, Commissioner 1/29/2025 – Commissioner concurs with ALJ that appeal was not timely filed pursuant to N.J.A.C. 6A:3-1.3(i), the 90-day rule. Circumstances do not present substantial constitutional issue or matter of significant public interest to justify relaxation of the statute of limitations as per N.J.A.C. 6A:3-1.16.

    Parent received letter notifying that student had committed an act of HIB on 10/31/23. Petition of Appeal was required to be filed by 1/29/2024; 90 days after receipt of the BOE decision. Petition deemed filed 2/26/24. Untimely.

Conclusion

For school districts to make an informed decision on the annual HIB policy review, it is important to be aware of recent HIB data trends and case law developments. A review of the information set forth in this article will go a long way to informing the HIB policy and implementation decision-makers how to best improve the school districts HIB policy and implementation to provide the best school climate possible for the students of the school district.