                        NOT FOR PUBLICATION WITHOUT THE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-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
