By Michael Kaelber, Esq., Coordinator of Continuing Legal Education and Research, LEGAL ONE
The Anti-Bullying Bill of Rights Act (ABRA), enacted in 2011, is designed to create a safe and civil learning environment for all students free from harassment, intimidation or bullying. To facilitate that safe environment, ABRA created due process protections and procedures for students, parents and staff, be they accused aggressors or victims. Those procedures include:
When a HIB complaint is filed, the principal informs the parents/guardians of all students involved, and may discuss, as appropriate, the availability of counseling and other intervention services. The principal keeps a written record of the date, time, and manner of notification to the parents/guardians.
• The principal, within one day of receiving the complaint, forwards the complaint to the Anti-Bullying Specialist (ABS) for investigation, who completes the investigation within 10 school days. The results of the investigation are reported to the superintendent of schools within two school days of completion.
• The superintendent reports the results of each investigation along with information on services provided, training established, discipline imposed or other action taken or recommended by the superintendent no later than the BOE meeting following the completion of each investigation.
• The parent/guardian is provided, within five school days of superintendent’s report to the board of education, written information regarding the nature of the investigation, whether the district found evidence of HIB; and whether discipline was imposed or services provided.
• The parent/guardian may request a hearing before the board of education within 60 calendar days after receipt of written information. If requested, the hearing must be held within 10 calendar days of the request, in executive session. At the hearing, the BOE may hear from the ABS about the incident, recommendations for discipline or services and any programs to be instituted.
• At the next BOE meeting following receipt of the superintendent report, the BOE issues a decision, in writing, to affirm, reject, or modify the superintendent’s decision.
• The BOE’s decision may be appealed to the Commissioner of Education, no later than 90 days after the BOE’s decision. If the HIB complaint is based on protected class status, a complaint may be filed with the Division of Civil Rights within 180 days of the incident.
ABRA Due Process Rights for Students, Parents/Guardians and Staff – A Case Law Update
It has been 15 years since the passage of the ABRA. Much has happened in case law from the Commissioner and the courts to clarify what ABRA due process requires.
Student First Amendment Rights
Case law has consistently found no first amendment freedom of speech violations through enforcement of the ABRA, findings of HIB and imposition of discipline. In addition, case law has held that first amendment standards permit school districts to address off campus speech when necessary to prevent substantial disruption of learning-related activities or the protection of those who make up a school community. Cases on point include:
• Dunkley v. Bd. of Ed. of the Greater Egg Harbor Regional School District, 216 F. Supp. 3d 485 (D.N.J. 2016).
• H. and M.H., o/b/o A.H. v. BOE of the Borough of Sayreville, Commissioner 9/23/21
• R. o/b/o T.R. v. BOE of the Township of Long Hill, Commissioner 12/9/2024 – Full first amendment analysis, citing the U.S. Supreme Court decision in Tinker v. Des Moines and Mahanoy Area Sch. Dist. v. B.L.
HIB Interviews
When students are being interviewed regarding an alleged HIB incident, parents may object to not being notified in advance, and/or may demand to be present for interviews. The U.S. Supreme Court addressed this issue in the case of Goss v. Lopez, 419 U.S. 565 (1975), holding that students are entitled to basic due process, including an opportunity for the student to tell their side of the story and at least oral notice of the allegations against them (with greater protections for long-term suspensions). The Supreme Court held that those rights could be satisfied through an informal hearing that essentially takes place when the student is questioned by a school official. The Court held that such a hearing could take place immediately, and that there was no requirement for prior parent notice, permission or for parents or legal representation to be present. The NJDOE has reiterated in its guidance that parents do not have the right to be present when their child is interviewed. See page 11 of the NJDOE Q & A on HIB Document.
For staff members who are witnesses to an alleged HIB incident, they may be questioned without prior notice or representation. However, if the staff member is accused of HIB, or may otherwise be subject to adverse employment action (e.g. for failing to report an HIB incident), then the staff member has Weingarten rights (if they are in a bargaining unit) and is entitled to have representation during an investigatory interview.
Student, Parent and Staff Rights to HIB Investigation Information
ABRA requires that parents and guardians of students receive, within five school days of the superintendent’s report to the board of education, written information regarding the nature of the investigation, whether the district found evidence of HIB; and whether discipline was imposed or services provided. The N.J.S.A. 18A:37-15 requirement of written information to parents and guardians has been extended by case law to staff members and volunteers who are implicated in a bullying investigation.
The Appellate Division has expanded the statutory right of parents to receive information prior to a BOE hearing to include “the full record of the HIB allegations … including the underlying investigative report, [and] any additional written reports or summaries, and the letter from [the victim’s] parents to the superintendent.”
When it comes to discovery in an appeal to the Commissioner, student records should be released to petitioners including, when relevant, 504 plan, emails and other documentation related to the plan, identities of witnesses and their statements. It would be unfair to deny access to petitioners when the BOE has access to this information.
Cases on point include:
• Sadloch, Manzo, Gogertz, Weber and Sinisi v. Bd of Ed of the Twp of Cedar Grove Commissioner 6/23/15 – football coaches accused of bullying.
• L. o/b/o A.L. v. Bridgewater-Raritan BOE, Commissioner 12/9/16, App. Div. 10/16/18, cert. den. Sup Ct. 3/8/19 – Seven-year-old student on bus made fun of classmate with speech disability; parent gets full record of HIB allegations to prepare for BOE hearing.
• Ruth Young-Edri v. Bd. Of Ed. of City of Elizabeth, Commissioner 7/8/19 – staff member right to full record of HIB allegations.
• James Mosser v. BOE of the City of Union, Commissioner 12/2/2021, decision on remand 10/3/25 – staff members have same ABRA access rights as parents/guardians.
• Eric Fitzke Grey v. BOE of the West Essex Reg. Sch. Dist., Commissioner 1/23/23 – discovery request by teacher in Commissioner appeal.
Student, Parent and Staff Rights in HIB Appeal – Board of Education Hearing
Courts and the Commissioner have upheld the ABRA appeal and hearing procedures as satisfying constitutional due process requirements. The Commissioner has consistently held that ABRA does not require that a board of education HIB hearing be a trial-type adversarial proceeding; requirements imposed for long-term suspensions such as the right to cross-examine witnesses could have been included by the Legislature but were not. At a minimum, the hearing should provide the appellant with the opportunity to be heard, and to review why they believe the decision reached should be rejected. The BOE may hear from the ABS about the incident, recommendations for discipline or services and any programs to be instituted. The BOE could also choose to hear from the parent who agrees with the decision at the same hearing.
The ABRA right to a BOE hearing has been extended to apply to staff members as well. If the matter involves a staff member, the staff member must have an opportunity to fully understand the evidence against her and to present testimony and documents to the BOE for its consideration.
The Appellate Division, in one decision, has held that, for staff, the “hearing should be meaningful and should be consistent with the procedures for hearings involving students. See N.J.S.A. 18A:37-15(b)(6)(d).” (HIB hearings for parents and students).
The Appellate Division, in another decision, rejected parents’ argument that an HIB hearing should have the same due process requirements as a long-term suspension including the right to confront and cross-examine witnesses at a school board hearing. The Appellate Division declined to substitute its will for the Legislature, which could have included the due process protections set forth for long-term suspensions but chose not to do so. See L.K. and T.K. o/b/o A.K. v. Bd. Of Ed. of Twp. of Mansfield – Comm. 4/22/19, rev’d and remanded, App. Div. 11/2/2020 cert. denied, NJ Supreme Ct. 5/21/2021, decision on remand 12/9/2021, aff’d App. Div. 10/17/23.
Cases on point include:
• Sadloch, Manzo, Gogertz, Weber and Sinisi v. Bd of Ed of the Twp of Cedar Grove Commissioner 6/23/15 – football coaches entitled to BOE hearing.
• Gibble v. Hunterdon Central Reg. Bd. Of Ed. Commissioner 7/13/16, App. Div. 3/1/18 – wrestling coach, meaningful BOE hearing consistent with HIB hearings for students.
• Ruth Young-Edri v. Bd. Of Ed. of City of Elizabeth, Commissioner 7/8/19 – teacher, entitled to hearing, no trial-type adversarial proceeding required.
• Tamaika DeFalco v. Bd. Of Ed. of Twp. of Hamilton, Commissioner 7/26/19 – teacher, entitled to hearing, no trial-type adversarial proceeding required.
• M. o/b/o minor child v. Board of Education of the Township of Lafayette, Commissioner 11/5/2020 – student, no trial-type adversarial proceeding required.
• Melanie Sohl v. Bd. of Ed. of the Town of Boonton, Commissioner 5/18/2021 – teacher, entitled to hearing, no trial-type adversarial proceeding required.
Student, Parent/Guardian and Staff Remedies for BOE Procedural Violations
Case law has determined that where a board of education has made procedural errors in the HIB process, the matter is generally remanded back to the board of education to address the procedural errors, usually in the form of a new hearing before the board. While an early Commissioner decision resulted in a dismissal of the case, case dismissal and removal of HIB references from student/staff records is no longer an acceptable remedy.
Cases on point include:
• Gibble v. Hunterdon Central Reg. Bd. Of Ed., Commissioner 7/13/16, aff’d App. Div. 3/1/18, den. N.J. Supreme Court 6/1/18 – remand
• L. o/b/o A.L. v. Bridgewater-Raritan Bd. of Ed., Commissioner 12/9/16, aff’d App. Div. 10/16/18, cert. den. NJ Supreme Court 3/8/19 – remand
• K. and M.K. o/b/o M.K v. Voorhees BOE (CCOE), Commissioner 3/23/17 – remand
• B. o/b/o M.B. v. Bd. of Ed. of the Borough of Haddonfield, Commissioner 6/4/18
• Ruth Young-Edri v. Bd. Of Ed. of City of Elizabeth, Commissioner 7/8/19 – remand
• James Mosser v. BOE of the City of Union, Commissioner 12/2/2021- remand
• C. and B.C. o/b/o A.C. v. BOE of the Twp. of Galloway, Commissioner 6/23/2022, 7/8/2022 – remand
• H and S.H o/b/o A.H v. BOE Of Twp. of West Orange, Commissioner 6/9/2025 – argument for Sadloch-type dismissal unsuccessful – remand
In certain Commissioner decisions, where the board of education has made procedural errors, the matter was not remanded back to the board of education. In those cases, the Office of Administrative Law evidentiary hearing or the board of education HIB hearing cured the violations.
Cases on point include:
• B. o/b/o A.S. v. BOE of the Borough of Paulsboro, Commissioner 2/6/2023
• C. obo D.C. v BOE of Twp of West Deptford, Commissioner 10/31/25 – good ALJ analysis, cites Tenafly, Gibble and Young-Edri.
• S/ obo T.S. v. BOE of Borough of Woodcliff Lake, Commissioner 11/17/25
Conclusion
ABRA has created due process procedures designed to protect the rights of students, parents and staff members. The structure is designed to establish a safe and secure learning environment for all students so they can be respected, valued and successful. Case law over the last 15 years has clarified ABRA due process rights; expanding them in some areas and providing consistent remedies in others. A review of this article will provide a better understanding of ABRA due process and assist principals, assistant principals and supervisors in carrying out their day-to-day responsibilities under the ABRA.