The opinion
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0161-16T4
L.P. AND H.P., on behalf of
minor child, L.P.,
Petitioners-Appellants,
v.
BOARD OF EDUCATION OF THE
WEST MORRIS REGIONAL HIGH
SCHOOL DISTRICT, MORRIS COUNTY,
Respondent-Respondent.
_________________________________
Argued January 18, 2018 – Decided August 15, 2018
Before Judges Simonelli, Rothstadt and Gooden
Brown.
On appeal from the New Jersey Commissioner of
Education, Agency Docket No. 80-3/16.
L.P. and H.P., appellants, argued the cause
pro se.
Jodi S. Howlett argued the cause for
respondent Board of Education of the West
Morris Regional School District, Morris County
(Cleary Giacobbe Alfieri Jacobs, LLC,
attorneys; Jodi S. Howlett and Jaclyn M.
Kavendek, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for New Jersey Commissioner of Education (Beth
N. Shore, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Appellants L.P. and H.P are the parents of L.P., who was a
student at the West Morris Central High School. Appellants filed
a complaint with the Board of Education of the West Morris Regional
School District (Board), alleging L.P. was the victim of
harassment, intimidation, or bullying (HIB) under the New Jersey
Anti-Bullying Bill of Rights Act (Act), N.J.S.A. 18A:37-13 to -
21. They appeal from the July 25, 2016 final agency decision of
the Commissioner of Education (Commissioner), adopting the initial
decision of an Administrative Law Judge (ALJ) that the Board's
determination that the complained-of conduct did not constitute
HIB within the meaning of the Act was not arbitrary, capricious
or unreasonable. We affirm.
The Act defines HIB as follows:
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
2 A-0161-16T4
a school bus, or off school grounds as
provided for in [N.J.S.A. 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.]
In November 2015, appellants filed a complaint with the
District alleging that beginning in November 2014, L.P., then a
freshman and member of the girls' fencing team, was a victim of
HIB by B.S., then a junior and captain of the fencing team (the
HIB complaint). The HIB complaint alleged the following acts of
HIB by B.S.:
At fencing practice in November 2014, L.P.
accidentally caused a teammate, K.M., to
suffer a concussion, which ultimately led to
K.M. sitting out the remainder of the season.
B.S. announced to the entire team that L.P.
gave K.M. a concussion, and "[u]nder [B.S.'s]
guidance, [L.P.] would come to believe that
she would be kicked off the team or subject
3 A-0161-16T4
to [a] lawsuit if the coach ever found out
what [L.P.] had done [to K.M.]."
At a tournament in December 2014, the coach
praised L.P. for winning all of her fencing
bouts; however, B.S. pointed out that L.P. had
lost one bout.
At a tournament on January 17, 2015, B.S. told
L.P. that a teammate, D.H., was "such a cry
baby and [was] bringing the entire team
down[,]" and D.H. was "so fat. How can she
fence well when she is totally out of breath."
B.S. also told L.P. that she "'felt really
bad' that [K.M.] had to sit out the entire
season, 'because [] [L.P.] gave her a
concussion.'" B.S. said L.P. "was 'lucky she
didn't get kicked off the team' [for causing
K.M.'s concussion]."
At a tournament on January 24, 2015, B.S.
"pointed out [K.M.] and reminded [L.P.] of
what she had done [to K.M.]" B.S.'s comments
caused L.P. to claim illness for the next two
tournaments.
At a tournament on February 23, 2015,
appellants learned about K.M.'s concussion.
They confronted L.P., who "cried and admitted
that she was afraid to be kicked off the team"
for giving K.M. a concussion and "was afraid
that K.M. would sue her," even though B.S.
"did not suggest this to her." L.P. said
"[s]he was sick of listening to [B.S.] blaming
and shaming other fencers who happened to be
her friends, calling [U.K.], a freshman fencer
'stupid', 'slow' or 'can't fence[.]'" L.P.
also said "[B.S.] preferred to trash talk.
[L.P.] didn't want to hear [B.S.'s] constant
bragging about what she did with her current
and former boyfriends." L.P. "was also fed up
with [B.S.] finding her in the [high school]
hallways, bragging about forging teacher
signatures to cut classes[.]"
4 A-0161-16T4
At a private fencing meet in May 2015, B.S.
told L.P she should have "stayed away [from
the tournament] so that . . . [another] fencer
could earn an E rating" and L.P. "should be
ashamed 'to steal another fencer's E rating.'"
As the next season approached, B.S. called a
team meeting without the coach's authorization
and despite the school's decision to eliminate
meetings without the coach and "declared that
fencers should volunteer to host pre-season
parties at their homes." B.S. also
"continue[d] to speak of '[L.P.'s] A
strip[,]'" and "[L.P.] viewe[d] [B.S.'s] claim
to A strip as evidence that the game is already
rigged against her. No strip has been
assigned and yet [B.S.] already consider[ed]
A strip to be hers." L.P. "indicated that she
will not feel safe on the team if [B.S.]
retains both A strip and a [c]aptain's
authority."
Appellants concluded that "[L.P.]'s status as a new and younger
member of the [high school] fencing team with better fencing skills
in comparison to [B.S.]" motivated B.S. to bully L.P.
In a November 28, 2015 addendum to the HIB complaint,
appellants alleged that "[B.S.] finds reason to speak to and
interact with [L.P.] or direct [L.P.]'s activities at every
practice and needlessly chooses to sit next to [L.P.] when they
do not speak."
Following receipt of the HIB complaint, the high school's
assistant principal, Anne Meagher, and the anti-bullying
specialist, Catherine Cartier, immediately commenced an
investigation. They interviewed fourteen witnesses identified as
5 A-0161-16T4
having information about the alleged HIB, and reviewed written
statements from L.P. and appellants, B.S. and her parents, the
coach of the girls' fencing team, and members of the girls' and
boys' fencing teams.
Cartier found L.P.'s claim that B.S. announced to the team
that L.P. caused K.M.'s injury was unsubstantiated, as no other
teammate corroborated this alleged statement. Cartier also found
L.P.'s claim that B.S. accused L.P. of stealing another fencer's
rating was unsubstantiated, as the witnesses L.P. identified as
having heard B.S. say this gave a different account of the
interaction.
Cartier concluded there was no evidence supporting L.P.'s
claim that she "had been the target of HIB, or that B.S. otherwise
used her 'power' as captain of the girls' fencing team to make
demeaning statements or take advantage [of] or mistreat L.P."
Cartier emphasized that "[t]here were no witnesses who
substantiated that [B.S.] . . . treated [L.P.] . . . in a negative,
demeaning or hostile manner. In fact, witnesses provided
statements to the contrary, indicating that [B.S.] . . . was highly
supportive of the team, including . . . [L.P.]."
Meagher also found that none of the witnesses corroborated
B.S.'s alleged HIB of L.P. She found that "[t]o the contrary,
many of the witnesses were surprised by the allegations and stated
6 A-0161-16T4
that [B.S.] was supportive of all of her teammates, including
L.P." Meagher also found "there was no evidence that B.S. had
used her authority as captain of the fencing team to in any way
harass or mistreat L.P."
On December 8, 2015, Cartier advised appellants the District
did not find evidence that L.P. was the target of HIB. The
superintendent affirmed that decision, and the Board affirmed the
superintendent's decision. On December 16, 2015, the Board advised
appellants that the superintendent and Board had accepted
Cartier's findings.
Appellants requested a hearing before the Board. Following
a hearing, the Board unanimously affirmed the superintendent's
decision. On January 7, 2016, the Board notified appellants that
it accepted the superintendent's decision.
Appellants filed an appeal with the Commissioner, raising
facts and allegations outside the scope of the HIB complaint, and
seeking relief outside the scope of the HIB complaint and the
Commissioner's authority. They argued, in part, they established
that the distinguishing characteristics that motivated the HIB
were L.P.'s age and the fact that she "was demonstrably a more
skilled athlete than [B.S.] and consequently a threat to [B.S.]."
Following transmission of the matter to the Office of
Administrative Law, the Board filed a motion pursuant to N.J.A.C.
7 A-0161-16T4
6A:3-1.5(g) to dismiss in lieu of filing an answer for failure to
state a claim upon which relief can be granted under the Act. The
Board argued, in part, the HIB complaint did not allege that a
distinguishing characteristic of L.P., either actual or perceived,
motivated the alleged HIB.
In opposition, appellants maintained that L.P.'s age and
better fencing skills than B.S. were distinguishing
characteristics that motivated the HIB, and asserted B.S. used her
power as captain of the girls' fencing team to harass, intimidate,
and bully L.P. L.P. submitted an affidavit, wherein she primarily
attacked Cartier's investigation, but did not verify the specific
acts of HIB alleged in the HIB complaint.
In her initial decision, the ALJ set forth the standard for
determining a motion to dismiss for failure to state a claim upon
which relief can be granted, made findings of undisputed material
facts based on the allegations in the HIB complaint and facts
presented, and found as follows:
Based on these facts presented on the pending
motion, and even giving [appellants] the
benefit of any reasonable inferences that
could be drawn from their papers or initial
petition, I FIND that L.P. cannot prove that
the alleged incidents reported as HIB to the
school can be sustained. L.P. has interpreted
and is now complaining that the HIB
investigation has caused her stress, caused
her friends to be "punished," for her to be
labeled a "liar," and for her to be locked up
8 A-0161-16T4
at [Children's Crisis Intervention Services].
None of this is probative of the question as
to whether B.S. bullied L.P. about the
accidental concussion incident or a fencing
rating prior to the HIB investigation.
[(Emphasis added).]
The ALJ explained that in K.L. v. Evasham Township Board of
Education, 423 N.J. Super. 337, 350-51 (App. Div. 2011), we held
the complained-of conduct for purposes of HIB must be motivated
by a distinguishing characteristic and the statutory definition
of HIB consistently required that the perceived motivation be a
distinguishing characteristic. We also held that "harmful or
demeaning conduct motivated only by another reason, for example,
a dispute about relationships or personal belongings, or
aggressive conduct without identifiable motivation, does not come
within the statutory definition of bullying." Ibid.
The ALJ then analogized the allegations in the HIB complaint
regarding B.S.'s conduct to the facts in L.B.T. v. Board of
Education of the Freehold Regional School District, EDU 7894-12,
initial decision, (Jan. 24, 2013),
http://njlaw.rutgers.edu/collections/oal/html/initial/edu07894-
12_1.html, which involved a "dispute between two students [over]
their respective roles on the swim team." In L.B.T., the ALJ
held, and the Commissioner affirmed, that if a victim was targeted
because of a dispute between the two people involved, such as a
9 A-0161-16T4
personal vendetta of one against the other, that conduct would not
be based on a distinguishing characteristic of the victim and
would not constitute a violation of the Act. Ibid.
The ALJ found the acts of HIB alleged in the HIB complaint
were "not even alleged to have been '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.'" The
ALJ concluded:
It was reasonable for the Board to conclude
that the circumstances, which certainly showed
a conflict between L.P. and . . . [B.S.], did
not rise to the level of bullying under the
Act, even to the extent that any of the
incidents had been corroborated, which they
were not. . . . I understand and appreciate
that [appellants] might be viewing the matters
as constituting "bullying" under a more common
place or lay meaning of that term, and there
might have even been a clear demonstration of
poor sportsmanship, but the Act sets forth a
specific legislative definition and
regulatory response.
The Board has demonstrated that there are
no facts in dispute and that it is entitled
to dismissal as a matter of law. [Appellants]
have not demonstrated entitlement to the
relief sought as a matter of law. The Board
applied the standard in the law and did so
after a thorough and timely investigation,
which the Act intends to be undertaken
quickly, including interviews of the alleged
10 A-0161-16T4
victim, alleged perpetrator, alleged
witnesses, and supervising adults.
The ALJ held the Board's HIB decision was not arbitrary,
capricious, unreasonable, or against the weight of the evidence,
and the Board was entitled to dismissal as a matter of law.
Following a comprehensive review of the record,1 the
Commissioner "concur[red] with the ALJ's conclusion - for the
reasons stated in the Initial Decision - that the Board's HIB
determination was not arbitrary, capricious or unreasonable."
The Commissioner agreed the complained-of conduct was not based
on a distinguishing characteristic of L.P., actual or perceived.
Citing K.L. and L.B.T.,2 the Commissioner noted it was "well
established that conduct . . . motivated by a personal dispute[,]
such as specific roles on a sports team, albeit potentially
1
The record included appellants' fifty-six-page appeal petition,
an approximately ninety-page appendix, appellants' and L.P.'s
affidavits with additional documents, and affidavits and documents
submitted by the Board.
2
The Commissioner also cited to R.A., on behalf of a minor child,
B.A. v. Board of Education of the Township of Hamilton, Mercer
County, EDU 10485-15, final decision,
http://njlaw.rutgers.edu/collections/oal/html/initial/edu10485-
15_1.html (June 22, 2016), and K.T. v. Board of Education of the
Freehold Regional School District, Monmouth County, EDU 7894-23,
final decision, (Mar. 7, 2013).
11 A-0161-16T4
harmful, does not fall within the definition of [HIB] under the
Act." The Commissioner concluded:
Based on the circumstances in this case, it
was reasonable for the Board to determine that
the conduct of B.S. was motivated by the
relationship between the two team members and
the dynamics of the fencing team, not a
distinguishing characteristic protected by
the Act. Additionally, despite the
[appellants'] assertions to the contrary,
there is no evidence in the record to suggest
that the Board's decision was induced by
improper motives or based on doctored
evidence.[3]
The Commissioner adopted the ALJ's decision "for the reasons stated
therein," and dismissed the appeal.
On appeal, appellants contend the Commissioner made and
failed to correct multiple errors of law and procedure. They
argue the Commissioner and ALJ improperly assumed the Board's
assertions were true on a motion to dismiss rather than accept
their allegations as true and afford them all reasonable inferences
therefrom. They argue the "ALJ erroneously applied the summary
decision standard on a motion to dismiss," and even if this was
proper, "the ALJ erred by ignoring multiple material facts." They
also argue the "Commissioner failed to consider whether the Board's
[HIB decision] was arbitrary, capricious and unreasonable." They
3
Appellants claimed the HIB investigation was tainted by lies
and falsified evidence.
12 A-0161-16T4
further argue that the Commissioner's and ALJ's decisions rested
on a finding the Board never made -- that the complained-of conduct
was not motivated by a distinguishing characteristic.
Appellants contend the Commissioner and ALJ misapplied the
Act. They argue L.P.'s age and "sports proficiency" were
distinguishing characteristics that motivated the HIB; the
Commissioner and ALJ wrongly considered the petition to allege a
personal dispute; and the Commissioner ignored the Act's
"reasonably perceived" language.
Our review of an agency's decision is limited. Lavezzi v.
State, 219 N.J. 163, 171-72 (2014). We will uphold the agency's
decision unless it is arbitrary, capricious, or unreasonable or
not supported by substantial credible evidence in the record as a
whole. Dennery v. Bd. of Educ. of the Passaic Cty. Reg'l High
Sch. Dist., 131 N.J. 626, 641 (1993). Our review of an agency's
final decision is limited to determining:
(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law; (2) whether
the record contains substantial evidence to
support the findings on which the agency based
its action; and (3) whether in applying the
legislative policies to the facts, the agency
clearly erred in reaching a conclusion that
could not reasonably have been made on a
showing of the relevant factors.
[Lavezzi, 219 N.J. at 171-72 (citation
omitted).]
13 A-0161-16T4
"[I]f substantial evidence supports the agency's decision, 'a
court may not substitute its own judgment for the agency's even
though the court might have reached a different result[.]'" In
re Carter, 191 N.J. 474, 483 (2007) (quoting Greenwood v. State
Police Training Ctr., 127 N.J. 500, 513 (1992)).
Moreover, we "should give considerable weight to a state
agency's interpretation of a statutory scheme that the legislature
has entrusted to the agency to administer." In re Election Law
Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010).
"We will defer to an agency's interpretation of both a statute and
implementing regulation, within the sphere of the agency's
authority, unless the interpretation is 'plainly unreasonable.'"
Ibid. (citation omitted). However, we are not bound by an agency's
determination of a strictly legal issue. Lavezzi, 219 N.J. at 172
(citation omitted). "Thus, to the extent that [the agency's]
determination constitutes a legal conclusion, we review it de
novo." Ibid.
Regarding a motion to dismiss for failure to state a claim,
the law is clear that the complaint must state "the facts on which
the claim is based," R. 4:5-2, rather than relying on conclusory
allegations." Printing-Mart Morristown v. Sharp Elecs. Corp., 116
N.J. 739, 746, 768 (1989); R. 4:5-2. "Dismissal is the appropriate
remedy where the pleading does not establish a colorable claim and
14 A-0161-16T4
discovery would not develop one." State v. Cherry Hill Mitsubishi,
439 N.J. Super. 462, 467 (App. Div. 2015). "[A] court must dismiss
the plaintiff's complaint if it has failed to articulate a legal
basis entitling plaintiff to relief." Sickles v. Cabot Corp., 379
N.J. Super. 100, 106 (App. Div. 2005).
In the administrative context, the motion to dismiss should
be granted when "the petitioner has advanced no cause of action
even if the petitioner's factual allegations are accepted as true
or for lack of jurisdiction, failure to prosecute or other good
reason." N.J.A.C. 6A:3-1.10. The review "is limited to examining
the legal sufficiency of the facts alleged on the face of the
complaint." Tanner v. Cmty. Charter Sch. of Paterson, Passaic
Cty., EDU 14408-15, initial decision, (Mar. 23, 2016),
http://njlaw.rutgers.edu/collections/oal/html/initial/edu14408-
15_1.html. The motion should be granted when the complaint on its
face fails to set forth a basis for relief, and also when the
petitioner fails to provide any factual support for the general
allegations of the complaint. Sloan ex rel. Sloan v. Klagholtz,
342 N.J. Super. 385, 394 (App. Div. 2001). Even affording the
petitioner's allegations deference, the motion must be granted
when the allegations are "palpably insufficient to support a claim
upon which relief can be granted . . . and where the petition sets
15 A-0161-16T4
forth no legal basis for the relief sought." Tanner, EDU 14408-
15, initial decision, (Mar. 23, 2016).
Applying the above standards, we discern no reason to reverse
the Commissioner's decision. The ALJ's initial decision, which
the Commissioner adopted, confirms the ALJ applied the motion to
dismiss standard, not the summary decision standard. As required,
the ALJ limited her review to the legal sufficiency of the facts
alleged on the face of the HIB complaint, considered the
allegations as true, and afforded appellants all reasonable
inferences that could be drawn therefrom.
In addition, the Commissioner's decision confirms he
considered whether the Board's HIB decision was arbitrary,
capricious and unreasonable, and concurred with the ALJ's
conclusion on this issue. Further, appellants raised the
"distinguishing characteristics" issue in their appeal to the
Commissioner, and posited they had properly asserted in the HIB
complaint that L.P.'s age and "sports proficiency" were
distinguishing characteristics that motivated the HIB. Thus, the
ALJ and Commissioner properly considered this issue. We are
satisfied that the Commissioner and ALJ made no error of law or
procedure in this case.
We have considered appellants' remaining argument that the
Commissioner and ALJ misapplied the Act in light of the record and
16 A-0161-16T4
applicable legal principles and conclude it is without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). We affirm substantially for the reasons the
Commissioner expressed in his July 25, 2016 final decision. We
are satisfied there was sufficient credible evidence in the record
as a whole supporting the Commissioner's and ALJ's decisions, R.
2:11-3(e)(1)(D), and the Commissioner's decision was not
arbitrary, capricious or unreasonable. The record is devoid of
evidence that the acts of HIB alleged in the complaint constituted
HIB or were motivated by a distinguishing characteristic of L.P.,
actual, perceived, or reasonably perceived.
Affirmed.
17 A-0161-16T4