NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5074-17T3
S.A. AND C.A., on behalf
of minor child, G.A.,
Petitioners-Appellants,
v.
BOARD OF EDUCATION
OF THE TOWNSHIP OF
MOORESTOWN,
BURLINGTON COUNTY,
Respondents-Respondents.
_______________________________
Submitted September 11, 2019 – Decided October 15, 2019
Before Judges Koblitz and Whipple.
On appeal from the New Jersey Commissioner of
Education, Docket No. 161-6/16.
Craig Anthony Ambrose, attorney for appellants.
Comegno Law Group, PC, attorneys for respondent
Board of Education of the Township of Moorestown,
Burlington County (John B. Comegno, II and
Alexandra Anne Stulpin, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Commissioner of Education (Lauren Amy
Jensen, Deputy Attorney General, on the statement in
lieu of brief).
PER CURIAM
S.A. and C.A., petitioners, are the parents of G.A. 1 On her behalf, they
appeal the April 23, 2018 Final Decision of the Commissioner of Education
(Commissioner) adopting the decision of the Administrative Law Judge (ALJ)
finding G.A. was not subject to harassment, intimidation, and bullying (HIB)
pursuant to the New Jersey Anti-Bullying Bill of Rights Act, N.J.S.A. 18A:37-
13.1 to -32, at her school in Moorestown. We affirm for the following reasons.
In 2015 to 2016, G.A. was a sixth grade student in the Moorestown School
District eligible for special education services because of her Attention Deficit
Hyperactivity Disorder (ADHD). She had an Individualized Education Plan
(IEP), and was placed on a team with R.L., a special education teacher.
Petitioners alleged that from September to December 2015, G.A. was
repeatedly harassed, intimidated, and bullied by R.L. because she hovered over
G.A.'s desk, asked to see her test scores in front of other children, and called
attention to her in ways that made G.A. feel embarrassed and uncomfortable.
1
We use initials throughout this opinion to ensure the privacy of the minor.
A-5074-17T3
2
Despite frequent requests by petitioners to school officials and to R.L. that she
stop, R.L.'s behavior persisted. On December 16, 2015, when R.L. once again
asked to see G.A.'s work during class, G.A. responded "no thank you" and asked
R.L. if she had spoken with G.A.'s mother. According to petitioners, R.L. then
pulled the paper from G.A., threw it on the teacher's desk, and stormed out of
the room.
G.A.'s mother, S.A., filed an HIB form with the school, asserting R.L.
keeps asking [G.A.] to show her work to her and keeps
asking [G.A.] to see her scores after several meetings,
a telephone conversation and instruction by [G.A.]'s
case manager, [B.S.]. She is harassing and
embarrassing [G.A.] in the classroom. She is disrupting
[G.A.]'s learning experience. She has created a hostile
learning environment for [G.A.] which [G.A.] finds …
to be extremely frustrating causing her anxiety.
Students that are in the class with [G.A.] are aware of
these negative interactions, questioning her which add
to her anxiety and discomfort in this increasingly
hostile learning environment.
On December 18, 2015, G.A.'s case manager and the school principal met
with S.A. and agreed G.A. would have a new schedule. On December 22, 2015,
the school commenced its investigation of the HIB charge. The following day,
the investigators concluded the incident in question was not HIB, and presented
their findings to the Board of Education (Board) executive session. The
A-5074-17T3
3
investigation report was sent to petitioners two days later. Petitioners appealed
to the Board, and the Board affirmed the finding of no HIB.
Petitioners filed a Petition of Appeal to the Commissioner challenging the
Board's determination, and the matter was transferred to the Office of
Administrative Law. The parties submitted cross-motions for summary
judgment. After argument the petitioners were granted leave to file a
supplemental certification. The ALJ issued an initial decision granting the
Board's motion for summary judgment after determining the alleged conduct
failed to meet every element required for a finding of HIB, and could not have
been reasonably perceived as having been motivated by G.A.'s disability or other
characteristics. The ALJ also found the alleged conduct did not substantially
disrupt or interfere with the orderly operation of the school or the rights of G.A.
under N.J.S.A. 18A:37-14.
The Commissioner adopted the ALJ's initial decision. This appeal
followed.
"[We] have 'a limited role' in the review of [agency] decisions." In re
Stallworth, 208 N.J. 182, 194 (2011) (citation omitted). "[A] 'strong
presumption of reasonableness attaches to [an agency decision].'" In re Carroll,
339 N.J. Super. 429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J. Super.
A-5074-17T3
4
199, 205 (App. Div. 1993)). "In order to reverse an agency's judgment, [we]
must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or
[] not supported by substantial credible evidence in the record as a whole. '"
Stallworth, 208 N.J. at 194 (quoting Henry v. Rahway State Prison, 81 N.J. 571,
580 (1980)); In re Proposed Quest Acad. Charter Sch. of Montclair Founders
Grp., 216 N.J. 370, 385 (2013).
In determining whether agency action is arbitrary,
capricious, or unreasonable, [we] must examine:
(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.
[Stallworth, 208 N.J. at 194 (quoting In re Carter, 191
N.J. 474, 482-83 (2007)).]
We "may not substitute [our] own judgment for the agency's, even though
[we] might have reached a different result." Ibid. (quoting Carter, 191 N.J. at
483). "This is particularly true when the issue under review is directed to the
agency's special 'expertise and superior knowledge of a particular field.'" Id. at
A-5074-17T3
5
195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)). Furthermore, "[i]t is
settled that '[a]n administrative agency's interpretation of statutes and
regulations within its implementing and enforcing responsibility is ordinarily
entitled to our deference.'" E.S v. Div. of Med. Assistance & Health Servs., 412
N.J. Super. 340, 355 (App. Div. 2010) (second alteration in original) (quoting
Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001)).
"Nevertheless, 'we are not bound by the agency's legal opinions.'" A.B. v. Div.
of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009)
(quoting Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div.
2001)). "Statutory and regulatory construction is a purely legal issue subject t o
de novo review." Ibid.
The burden of proving that an agency action is arbitrary, capricious, or
unreasonable is on the challenger. Bueno v. Bd. of Trs., 422 N.J. Super. 227,
234 (App. Div. 2011) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super.
544, 563 (App. Div. 2002)).
Here, that burden was not met because the petitioners have not overcome
the presumptive validity of the Commissioner's final decision and have not
established the determination of the Board was arbitrary, unreasonable or
capricious. In reaching this conclusion, it is not our intention to minimize or
A-5074-17T3
6
downplay the feelings of a child in a classroom. We recognize the imbalance of
power a child may legitimately experience in a classroom when she or he is
singled out.
However, when we examine the record to find the elements necessary to
establish a claim under N.J.S.A. 18A:37-13.1, we do not discern sufficient facts
to support a conclusion that any actions by R.L. were motivated by G.A.'s
ADHD or other personal characteristics. N.J.S.A. 18A:37-14 states:
“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 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;
A-5074-17T3
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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.
Here, R.L. had an obligation as G.A.'s special education teacher to oversee
G.A.'s work consistent with the parameters of her IEP, and even if we presume
R.L. was insensitive or even unkind, there is no evidence R.L. was prompted 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. Moreover, the record does not support the conclusion the alleged
conduct substantially disrupted or interfered with the orderly operation of the
school or the rights of G.A.
We have carefully reviewed the record regarding all remaining arguments
and have determined they are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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