                                NOT FOR PUBLICATION WITHOUT THE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
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                                                         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



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                                       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
                                          7
            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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