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Personal Conflict Without Distinguishing Characteristic Not HIB

By on July 19, 2016 in Students with 0 Comments

School districts frequently grapple with determining whether a student’s conduct constitutes harassment, intimidation, or bullying (“HIB”) under the New Jersey Anti-Bullying Bill of Rights Act (“ABBR”). On June 22, 2016, the Commissioner of Education (“Commissioner”) in R.A. o/b/o B.A. v. Hamilton Township Board of Education affirmed the Administrative Law Judge’s (“ALJ”) decision that personal conflict not based on any distinguishing characteristic among students who were previously friends did not rise to the level of HIB.

The alleged target was a middle school female student who claimed that her former friends bullied her over the course of two years. She alleged that in 2013 the group of friends threw a blown-up paper bag in her face and called her names after she was invited to a party and her friends were not. The alleged target and other girls had a strained relationship during 2014. In January 2015, the student submitted a HIB complaint to the school stating that three students from the group stomped and kicked her lunch. She also alleged that she was subject to name-calling in the hallway during lunch. The student argued that there was a power differential among the students since 2013.

The school district completed a HIB investigation and ultimately found that the conduct complained of did not constitute HIB. The Hamilton Township Board of Education (“Board”) affirmed the school district’s determination. The student appealed the Board’s decision.

The Commissioner and ALJ both upheld the Board’s decision. A finding of HIB requires, among other criteria, that the conduct in question is based on a distinguishing characteristic of the targeted student, such as race, gender, or religion. A distinguishing characteristic has been interpreted broadly and could include hair color, size, strength, etc. of a student. In this case, the Commissioner and ALJ agreed with the Board that the alleged actions in 2013 and 2015 were not based on any distinguishable characteristic. They rejected the student’s argument that being invited to a party to which the other girls were not does not constitute a distinguishable characteristic. Moreover, with regard to the lunch incident, the targeted student’s allegations were unsubstantiated – she did not actually witness the lunch bag being kicked into the hallway because she was in the lavatory and no other students corroborated that the alleged aggressors kicked the lunch bag purposefully. The allegations regarding name-calling were also unfounded.

Interestingly, the Commissioner and ALJ pointed out that under the current ABBR, a perceived power imbalance absent any distinguishable characteristic cannot constitute HIB. However, the New Jersey Department of Education has proposed to amend the ABBR regulations to include in the definition of HIB “unwanted, aggressive behavior that may involve a real or perceived power imbalance.” This revision, if adopted, will likely change the analysis of determining whether an act constitutes HIB.


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About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.


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