The Volokh Conspiracy
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[UPDATED] Is Sixth-Grader Telling Classmate His Hairstyle Makes Him Look Like Trump "Harassment, Intimidation, or Bullying"?
UPDATE: But wait! It turns out the decision was overturned on appeal, see below. (I've changed the title to a question; it originally said such a statement was indeed "harassment, intimidation, or bullying," summarizing the initial decision.)
From N.U. v. Bd. of Ed., decided June 27 by Administrative Law Judge Jeffrey Wilson but just posted on Westlaw a few days ago:
[I]n December 2017, M.U. was eleven years old and in the sixth grade. At that time, he approached a fellow classmate, while at school, who had gotten a haircut and bleached a portion of his hair. M.U. told his classmate that he looked like Donald Trump. The classmate took offense to the comment and the incident was reported. A HIB [Harassment, Intimidation, or Bullying] investigation was conducted, and it was determined that M.U.'s conduct towards his classmate constituted HIB….
Glenn Kershner has been employed by the Mansfield Township Board of Education for thirteen years as the building principal for the grade three through grade six building. He holds a principal certificate, teaching certificate, and school safety specialist certification.
Mr. Kershner stated he first became familiar with M.U. in the fifth grade when M.U. first enrolled in the District. He identified the letter he sent to N.U. regarding the bullying investigation that took place. Mr. Kershner testified he received a phone call from the victim's parents stating the student was being bullied in school and they wanted to meet with him and Julie Katz, the school anti-bullying specialist, to discuss the situation.
Mr. Kershner and Ms. Katz met with the parents of the victim during the 2017-2018 school year. At the meeting, the student's parents and the student identified M.U. as specifically targeting the student in a myriad of ways, including referring to the student as "Donald Trump" as a result of his hair color and style. Mr. Kershner was told the student went home the night that M.U. called him Donald Trump and shaved the blond hair off his head because he was so insulted by the remark.
Mr. Kershner testified there was a list of nine things that M.U was alleged to have done to the other student, one of which was calling the student "Donald Trump" as a result of his hair color. He spoke to M.U with regard to each allegation, but only investigated the "Donald Trump" incident as HIB….
New Jersey enacted the Anti-Bullying Bill of Rights Act (Act) to "strengthen the standards and procedures for preventing, reporting, investigating, and responding to incidents of harassment, intimidation, and bullying" occurring both on and off of school grounds. Definitions relative to adoption of harassment and bullying prevention policies are found in N.J.S.A. 18A:37-14, which states in part:
["]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;
(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, the investigation revealed that the single incident of M.U. stating to another student that the student's new hair color and style made him look like Donald Trump, occurred on school property. The distinguishing characteristic in this case was the student's recent change to his hair color and style. This incident interfered with the student's right to be free from negative, verbal attacks. A reasonable [person] should know, under these circumstances, that such a verbal attack would have the effect of emotionally harming the student. Clearly this incident had the effect of insulting or demeaning any student as is evidenced by him cutting his hair and wanting to avoid returning to school….
The Commissioner of Education will not overturn the decision of a local board in the absence of a finding that the action below was arbitrary, capricious or unreasonable. Further, the Commissioner will not substitute his judgment for that of the board of education, whose exercise of its discretion may not be disturbed unless shown to be "patently arbitrary, without rational basis or induced by improper motives." New Jersey courts have held that "[w]here there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." …
Here, based on the whole of the credible evidence presented, I CONCLUDE that all elements required to establish an act of HIB under the HIB Act have been satisfied. I CONCLUDE that petitioner has not met her burden of proof that the Board acted in an arbitrary, capricious or unreasonable manner in concluding that M.U.'s actions constituted harassment, intimidation or bullying under the Act. Furthermore, I CONCLUDE that the petitioner failed to demonstrate that the Board acted in bad faith, or in utter disregard of the circumstances before it….
The opinion does not note the penalty imposed on M.U. Congratulations to Marc G. Mucciolo, who represented the Board.
UPDATE 10/20/22, 3:22 pm Eastern: Thanks to commenter Anony262, I learned that the decision was reversed by Acting Commissioner of Education Angelica Allen-McMillan on Aug. 10, 2022. (Only the original decision is posted on Westlaw, with no notation that it was reversed, as would usually be done for a reversed court decision; in the future, I'll try to figure out how I can search for possible reversals through the administrative agency's internal search systems, if that's possible.) My apologies for the error, and I much appreciate the opportunity to correct it; here's the heart of the Commissioner's decision:
[In the decision below,] there is no documentation of any kind addressing the second criteria [required for liability under the HIB statute] – that M.U.'s conduct substantially disrupted or interfered with the rights of other students or the orderly operation of the school. While two of the Board's witnesses testified that the alleged victim shaved his head and felt reluctant to return to school, there is no documentary support for that information or indication that that information was presented to the Board. The victim statement included in the HIB report does not reference either the head shaving or any reluctance to return to school, or any other information that demonstrates that M.U.'s comments substantially disrupted or interfered with the rights of other students or the orderly operation of the school. The Commissioner therefore concludes that the Board's decision was arbitrary, capricious, and unreasonable because there is no evidence that the Board considered all of the factors required to prove an element of HIB.
I don't know if there was a lawyer on appeal, but at the original hearing M.U. was represented by M.U.'s mother, N.U., so congratulations to her.