Appellate Division Decision Clarifies Student Due Process Rights for HIB Violation

HIB Violation

In L.K. and T.K. v. Board of Education of Township of Mansfield, the New Jersey Appellate Division addressed the due process rights accorded to students alleged to have violated a school’s harassment, intimidation and bullying policy (HIB). The appeals court held that students facing an HIB violation are not entitled to the same due process rights as those facing more serious consequences, such as long-term suspension. 

Facts of the Case

L.K. and T.K. sought to overturn a final decision by the Commissioner of Education, affirming the determination by the Mansfield Township school board (Board) that their seven-year-old daughter, A.K., harassed, intimidated, or bullied a fellow second-grade classmate, N.V., who was born a male, was transitioning from expressing herself as male to female. The allegations of harassment, intimidation, and bullying (HIB) stemmed from A.K. asking N.V. inappropriate questions concerning N.V.’s gender expression as a female.

The parties agree that A.K. questioned N.V. about wearing a dress while riding together on the school bus. The Board determined that the following day, A.K. teased and intimidated N.V. in the school lunchroom despite having previously been told not to question N.V. about her clothing or appearance. Relying on this allegation of repeated conduct, the Board determined that A.K. engaged in HIB.

Petitioners filed a verified petition of appeal with the Commissioner challenging the Board’s decision and seeking to expunge the Board’s HIB determination from A.K.’s school files as well as from the files maintained by the State. Petitioners contend they were denied due process during the initial adjudicatory process before the Board. They assert they should have been afforded the same procedural rights that apply when a student faces a long-term suspension, including the right to cross-examine witnesses at the Board hearing.

The matter was submitted as a contested matter to an administrative law judge (ALJ), who rejected the Petitioners’ contention that they were not afforded adequate due process during the hearing before the Board. After determining that the school district’s investigation of the cafeteria incident was deficient, the ALJ further concluded the Board’s decision was arbitrary, capricious, and unreasonable. The Commissioner issued a final decision rejecting the ALJ’s initial decision in part and concluded that the Board’s determination that A.K. committed an act of HIB was not arbitrary, capricious, or unreasonable.

Appellate Division’s Decision

The Appellate Division rejected the Petitioners’ argument that A.K. was entitled to greater due process rights. “The framework for adjudicating HIB allegations is set forth in the Anti-Bullying Bill of Rights Act (ABR), N.J.S.A. 18A:37-13 to -47 and administrative code promulgated by the Commissioner of Education as authorized by the State Board of Education,” the court wrote. “We are satisfied those procedures meet constitutional requirements.”

In reaching its decision, the Appellate Division highlighted the distinctions between an HIB violation and a long-term suspension, concluding that students should be afforded greater due process rights when facing the latter.  “Petitioners posit that the consequences of an HIB finding are comparable to a long-term suspension, and students charged with HIB should accordingly be afforded comparable procedural rights,” the court wrote. “Specifically, students facing a long-term suspension are provided pre-hearing notice of the specific testimony and charges against the student and are afforded the right to confront and cross-examine the witnesses against them at a school board hearing. Petitioners ask us to engraft those additional procedural rights onto the process for adjudicating HIB allegations. We decline to do so.”

With regard to whether the Commissioner abused his discretion in affirming the Board’s determination that A.K. engaged in HIB, the Appellate Division concluded that the Board presented testimonial evidence that, if found credible, would establish that A.K. engaged in HIB based on N.V.’s gender identity and expression. However, it further noted that the ALJ discounted the credibility of some of the testimony, concluding that the Board relied heavily on uncorroborated evidence.

“Although a single wrongful act can constitute HIB, in this instance it is clear from the Commissioner’s final decision that the determination A.K. engaged in HIB was predicated on the finding that A.K. persisted in questioning N.V. about her gender identity after the initial school bus incident,” the court explained. “In other words, the Commissioner’s decision presupposed that A.K. engaged in repetitive conduct after being counseled to stop. However, that critical finding is contrary to the factual finding made by the ALJ.”

Because the final agency decision failed to explain why the Commissioner rejected the ALJ’s assessment of the credibility of the evidence presented by the Board, as required by the Administrative Procedures Act (APA), the Appellate Division found that it was “constrained to remand the matter to the Commissioner to make explicit findings as to whether the ALJ’s assessment of the testimony regarding A.K.’s allegedly persistent conduct was arbitrary, capricious, or unreasonable, or was not supported by sufficient, competent, and credible evidence in the record.”

Key Takeaway

Because student discipline proceedings can often result in legal challenges, it is imperative that school districts and boards of education understand their legal obligations. If you have questions about the Appellate Division’s decision in L.K. and T.K. v. Board of Education of Township of Mansfield, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group

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