I wholeheartedly support New Jersey’s Harassment, Intimidation, and Bullying law, instigated by the tragic suicide of Rutgers student Tyler Clementi who jumped from the George Washington Bridge into the Hudson River after his roommate secretly taped him kissing a man and posted it on social media. The 2011 law requires all public schools to discipline students who bully another student based on characteristics like race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or disability.

Yet is there a point at which protections for vulnerable students cross the line from moral imperative to virtue-signaling? What happens circumstances are unclear, like when a young child asks a peer a lot of questions?

This sounds abstract. It’s not, as the story of Gina and Avery shows. It also says something about what happens when good intentions, like those that triggered the HIB law, devolve into  political, performative acts that do nothing for young people like Tyler Clementi.  We see this through a larger lens with public education’s obsession,  especially in this  election cycle, with gender ideology and book-bans instead of focusing on learning recovery. We see it in State Board of Education meetings where far more time is spent debating whether “equity” requires lower standards instead of figuring out why our kids can’t read. We see it in school districts when hiring a DEI Director somehow ameliorates racist cultures.

And sometimes what economist Tyler Cowen calls the “fallacy of mood affiliation” victimizes both the victim and the alleged bully. 

In September 2015 two seven-year-olds were riding on the school bus to  John Hydock Elementary School in Burlington County, part of the Mansfield Public Schools district. On the bus, one student—let’s call her “Gina“—who, according to court documents, “likes to dress up in fancy, nice clothes,”  asked her friend Avery (not her real name) why she was wearing a dress. Gina was curious because Avery is biologically male and was transitioning to a girl, recently wearing girl clothes. During the bus ride they both got upset, Avery because Gina kept asking her questions—it was picture day and wearing a dress was important to her— and Gina because she was afraid Avery would “tell on her.” 

A guidance counselor at the girls’ school called Gina’s mother (identified in court as T.K.) and said there was a “little incident” on the bus but not to worry. When Gina got home, her mother told her not to ask Avery about her clothing  and to call her by her preferred name. Gina was confused and asked her mom lots of questions. (She tends to “perseverate about anything in life she does not understand,” her mother testified.)  Gina also told her mom she wants to be friends with Avery because she “likes American Girl dolls as much as she does and he [sic] likes to shop at Justice like she does.”

The next day something happened at lunch (accounts are conflicting and no formal documentation was ever produced) so Gina spent a day in detention in the principal’s office. Avery was offered counseling and told she could choose to  bring a friend. She chose Gina.

Should the discipline and support for Gina and Avery have ended there? The administration at Mansfield didn’t think so; it decided Gina’s behavior warranted a formal HIB investigation and the HIB team concluded that, indeed, Gina had bullied Avery. Gina’s parents were summoned to a school board hearing where they were told the Board was filing the necessary paperwork to notify the state that Gina had violated the HIB law, a violation that would go into her public record. The parents also discovered the superintendent had told board members to disregard Gina’s age. (I should note, as a former school board member, that districts and school boards take HIB investigations very seriously because the results are collated on School Performance Reports. In 2022-23 Mansfield reported no HIB violations.)

Parents have the right to due process and in January 2019 Gina’s case was heard by an Administrative Law Judge (ALJ). Her parents asked the ALJ to find that the school board’s decision was “arbitrary, capricious, or unreasonable,” primarily due to Gina’s age at the time of the incident and the district’s lack of evidence.  

Here’s a section from the ALJ’s ruling:

“[E]ven under the actual wording of the statute, the only corroborated finding from the investigation was that [Gina] asked questions about why [Avery]  dressed like a girl even though [Avery] asked her to stop. Therefore, the age of [Gina] was relevant to whether [Gina’s] conduct was motivated by the perceived characteristic or because a seven-year-old would be curious about why a student she knew as a boy was dressing like a girl. The investigators had the time to find and interview someone in the cafeteria who may have heard [Gina] continue the “harassment,” but they did not. 

I CONCLUDE that the misstatement of the law that age was not to be a factor in the Board’s determination was a major factor in the Board’s decision and it made the Board’s decision arbitrary, capricious, or unreasonable. I ORDER that the decision of the Mansfield Township Board of Education be REVERSED, and that the finding of harassment, intimidation, or bullying be removed from [Gina’s] student file.”

The next stop for Gina’s case was to the Commissioner of Education, the agency that certifies ALJ HIB decisions, and put in the hands of Lamont Repollet, Gov. Murphy’s first commissioner. Commissioners rarely overturn these types of cases but on April 19th, 2019 Repollet did just that, finding Gina’s remarks were “motivated by [Avery’s] gender identity and expression” and Gina “should have known she was causing emotional harm.”

The parents represented by their lawyer David Giles, appealed the ruling to the Appellate Division of the Superior Court in September 2020, now a full five years after the incident. Did the Court bow to the wisdom of the Commissioner?

Hardly: The Court remanded the case back to Repollet because he “failed to explain” why he “rejected the ALJ”s assessment of “”the credibility of the evidence presented by the Board,” as required by administrative procedures. Repollet also failed to note the ALJ’s “thorough analysis of the evidence” and the district’s “specific errors” made in “investigating the cafeteria incident.”

From this ruling: 

“We therefore are constrained to remand the matter to the Commissioner to make explicit findings as to whether the ALJ’s assessment of the testimony regarding [Gina’s] allegedly persistent conduct was arbitrary, capricious, or unreasonable, or was not supported by sufficient, competent, and credible evidence in the record. Accordingly, when an agency head [Repollet] strays from the factual findings of an ALJ, we need not accord the agency head the level of deference we ordinarily recognize in reviewing final administrative decisions. The Commissioner failed to follow the decision-making framework spelled out in the APA.”

Gina’s case was remanded back to now-Acting Commissioner Angelica Allen-McMillan who, in a ruling dated December 9, 2021, concurred with Repollet (now president of Kean University), writing, the ALJ’s finding was “insufficient to overturn the Board’s decision” and doing so “would require the Commissioner to substitute her judgment for the Board’s.” Sure, Gina was only seven but “age is irrelevant to whether an act of HIB was committed. The Act does not establish an age range for students who may be HIB victims or offenders.” Also, Gina’s questioning of Avery about her dress was “motivated by the distinguishing characteristic of gender identity” and that conduct was “insulting or demeaning, and created a hostile educational environment.”

Yesterday, October 17th, the Appellate Division of the Superior Court said it was “satisfied” with Allen-McMillan’s reasoning and seven-year-old Gina is a bully, harasser, and intimidator.

Phew! That’s a lot. I could go on about the ridiculous amount of taxpayer money and staff effort exerted because two second-graders had a tiff. I could note the DOE has a full plate— falling student achievement, failing tutoring programs, no doubt burning the candle at both ends to let the public know how students did on standardized tests taken last seven months ago

Yet what’s most disturbing for this writer is how the devastating harassment of students like Tyler Clementi, Adriana Olivia Kuch, and Teresa Kinney becomes trivialized when school districts and state agencies disregard developmentally-appropriate childhood behavior in a misguided mission for social justice.  Did Gina’s questions about Avery’s dress really rise to the level of “insulting,” “demeaning,” and “hostile” behavior that remains on her permanent school record?  Have we gone too far when we exchange doing good for appearing good, when inanity supplants common sense?

I think this case proves we have.