In a recent decision, the New Jersey Commissioner of Education determined that a board of education did not act in an arbitrary or capricious manner when it determined that a student’s comments about his classmate’s vegetarian lifestyle constituted an act of harassment, intimidation and bullying (HIB).

The student was disciplined by the assignment of five lunchtime detentions during which he was given the opportunity to speak with district staff regarding his actions, with the intention of preventing future instances of such conduct.

The incident in question occurred in a middle school cafeteria between two 11-year-old sixth grade students. Comments were made regarding the victim’s decision not to eat meat including “it’s not good to not eat meat”; “he should eat meat because he’d be smarter and have bigger brains” and “vegetarians are idiots.” The anti-bullying specialist determined that the comments constituted verbal communications that were reasonably perceived to be motivated by a distinguishing characteristic, vegetarianism, which substantially interfered with the rights of the victim and had the effect of insulting and demeaning him. The comments constituted an act of HIB.

The superintendent referred the findings of the anti-bullying specialist to the board of education and the parents of the student accused of bullying. The parents requested a board-level hearing; after the hearing, the board affirmed the superintendent’s initial finding of HIB. The parents appealed the board decision to the education commissioner, who referred the matter to an administrative law judge (ALJ) for a hearing.

The sole issue in dispute at hearing before the ALJ was whether the state of being a vegetarian could constitute a “distinguishing characteristic” so as to support a finding of HIB. The ALJ found that being a vegetarian was an identifiable motivation for the comments in question; being a vegetarian was a distinguishing characteristic. The parents failed to meet their burden of proof that the board of education acted in an arbitrary, capricious or unreasonable manner when it concluded that the student’s comments constituted HIB under the New Jersey Anti-Bullying Bill of Rights Act. The Commissioner concurred with the ALJ’s findings and upheld the actions of the board of education.