Board attorney outlines duties, timelines under Anti‑Bullying Bill of Rights

Steven Fogarty, the Montgomery Township School District’s board attorney, gave the board its annual training on harassment, intimidation and bullying (HIB), focusing on the board’s role under New Jersey’s Anti‑Bullying Bill of Rights and the investigative and appeal procedures the district must follow.

Fogarty told board members that HIB investigations must be completed within a 10‑school‑day window and that anyone who sees or is told about alleged discriminatory conduct — teachers, paraprofessionals, contractors and board members — must report it to the principal on the same day. He said the principal must create a written memorialization of the report within two days and use the Commissioner’s complaint form (the “3‑38 form”) when initiating an HIB investigation.

“The legislature in its infinite wisdom determined that the Board of Education should be the final arbiter in these cases,” Fogarty said, adding that the board reviews the superintendent’s decision at the next regularly scheduled meeting after the investigation concludes. He stressed that the board’s first review is advisory; if parents request a hearing, the board must provide it within 10 days or convene a special meeting.

Fogarty emphasized legal standards the board must apply when deciding whether conduct qualifies as HIB. He said the inquiry centers on the victim’s perception: whether the victim reasonably perceived the conduct as targeting a protected characteristic such as race, religion, ancestry, national origin, gender identity, sexual orientation, disability or “other distinguishing characteristics.” He said intent by an alleged offender is not required to find HIB and that mitigation (age, cognitive disability, contrition) bears on consequences, not the initial finding.

Fogarty reviewed the “three‑strike” provision in statute: an affirmative HIB finding three times for a student triggers a required individualized student intervention plan and parent training. He also explained when off‑campus conduct can produce school discipline, saying discipline for off‑campus acts is permissible only when necessary to restore school health and safety — a high legal threshold that, in his experience, is rarely met.

Several board members asked about practical issues. When asked whether a board member who reports an allegation must later recuse, Fogarty said yes: a reporting board member becomes a witness and must recuse. On parents who refuse statutorily required training after a third HIB finding, Fogarty said the district might have to assess whether the refusal rises to the level of abuse or neglect and therefore becomes a reportable matter to child protective services. On social media and artificial intelligence, Fogarty said electronic evidence is frequently ephemeral (deleted posts, AirDrop, disappearing messages) and that courts and the Commissioner have rejected AI‑generation as an automatic defense where clearly discriminatory content was produced.

Fogarty reviewed appeal paths: families can appeal the board’s final decision to the Commissioner of Education (administrative law judge review) and victims may pursue the Division on Civil Rights. He said the commissioner’s standard is whether the board’s decision was arbitrary, capricious or unreasonable given the record, not whether the commissioner would have reached the same outcome.

Fogarty closed by reminding board members of mandated duties: annual review of district HIB policy (which must be filed with the Executive County Superintendent within 30 days if changed), the board’s reporting obligations, and the requirement to ensure principals and anti‑bullying specialists follow the timelines and documentation standards.

Board members said they would take the training’s guidance into account in upcoming reviews of local HIB procedures and in enforcement of timelines.