New Jersey Law

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School Law: Five Suggestions for Five Years: How to Improve the Anti-Bullying Bill of Rights

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The New Jersey Anti-Bullying Bill of Rights Act, (“ABR”) celebrates its fifth birthday this year. This is an ideal time to reflect upon how the law works for school districts, and how the ABR can be improved.

The ABR is ubiquitous. Students, educators, school staff, parents/guardians and board members give consideration to harassment, intimidation and bullying (also referred to as “HIB”) on an almost-daily basis. The ABR’s architects deserve much credit for enacting amendments to the anti-bullying law that affect every building in every school district.

The institutionalization of the ABR, however, cannot mask the law’s unwieldy and confusing language and procedures. Conduct that one may consider bullying as a matter of common sense, can nev- ertheless be declared “no HIB” because of the labyrinthian statutory definition of bullying in the ABR.

The New Jersey Department of Education (NJDOE) has proposed several amendments to the HIB regulations (N.J.A.C. 6A:16-7.7). Those proposed changes can be found at www.state.nj.us/ education/code/proposed/, and contain regulatory amendments worthy of much discussion. This article, however, attempts to supplement the NJDOE’s regulatory amendments with suggestions for some statutory change.

The five suggestions presented attempt to build on the ABR’s strengths and minimize its weaknesses. It bears emphasis that the ABR explicitly invites school districts to adopt their own antibullying policies, as long as such policies “are more stringent” than the current ABR requirements. Readers may wish to take the suggestions below to their respective districts with an eye towards provoking discussion and brainstorming how the ABR may be improved. As always, a board should consult with its board attorney before considering any changes to existing anti-bullying practices.

1. Simplify the law’s definition of bullying.
Einstein said, “If you can’t explain it simply, you don’t understand it well enough.” Ask any school anti-bullying specialist how the ABR defines “harassment, intimidation and bullying.” You will hear no simple explanations.

The ABR’s definition of harassment, intimidation and bullying (N.J.S.A. 18A:37-14) symbolizes an ambitious attempt to codify anti-bullying, antidiscrimination and suicide prevention concepts. That definition, as follows, states:

“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 schoolsponsored 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.

In practice, the definition set forth above is so complicated as to render it unworkable.

We should question why the terms “harassment” and “intimidation” are combined with the definition of “bullying,” when each term has its own unique meaning. Harassment is not necessarily bullying. If we want our children to attend safe schools that are free of bullying, then we should center upon that single term – “bullying.” Under the ABR, HIB should become, simply, “B.”

In May of this year, the National Academies of Sciences, Engineering and Medicine published a paper entitled,“Preventing Bullying Through Science, Policy and Practice,” in which one primary recommendation was to “foster use of a consistent definition of bullying.” (Chapter 7, at recommendation 7.1). The paper recommended the uniform adoption of the definition of bullying drafted by the Centers for Disease Control, which states:

“Bullying is any unwanted aggressive behavior(s) by another youth or group of youths who are not siblings or current dating partners that involves an observed or perceived power imbalance and is repeated multiple times or is highly likely to be repeated. Bullying may inflict harm or distress on the targeted youth including physical, psychological, social, or educational harm.”

While this definition may require some modification, such as inclusion of different types of bullying behaviors (cyberbullying, relational bullying, physical bullying) it is nevertheless concise and capable of widespread utilization by anti-bullying staff. The Centers for Disease Control definition of bullying would pass Einstein’s test of simple explanation.

2. Clarify the board’s participation in the process.
One of the ABR’s strengths is its all-inclusive process – every member of a public school community is statutorily required to participate in some fashion in minimizing bullying behavior. The board of education’s role in an anti-bullying investigation, however, is murky.

Under the ABR, investigations are to be reported to the board no later than the next meeting following completion of the anti-bullying investigation. Then, at the board’s next meeting, it is required to “affirm, reject or modify” the investigation’s findings, as sanctioned by the superintendent of schools. Somewhere in this process, and placed awkwardly in the ABR, is the parent/guardian’s right to request a hearing before the board if they are dissatisfied with the result of a particular bullying investigation.

Under the current statutory construction, the board of education could conceivably “affirm, reject or modify” an anti-bullying investigation prior to the time in which a parent/ guardian requests a hearing. Assuming a parent/guardian requests a hearing after the board has “affirmed, rejected or modified” an investigation, the board would be an appellate tribunal over a matter it has already acted upon. Such an appeal process casts serious doubt upon the fairness and objectivity of such a proceeding.

Once again, the simple answer is to keep it simple. Rather than engaging in “accepting, rejecting or modifying” any anti-bullying investigations, the board should simply “accept receipt” of a monthly anti-bullying report. Such a process would preserve the board’s objectivity in the event of a hearing request, and, at the same time, ensure that the board has placed its imprimatur upon an important investigation.

3. Diversify the law’s reporting and investigative processes: One size does not fit all.
The ABR implicitly prohibits discrimination by including, in its definition, actual or perceived characteristics derived from our New Jersey Law Against Discrimination: “Race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability…” The ABR procedures aimed to protect lesbian, gay, bisexual and transsexual (“LGBT”) students can backfire, however, because students and/or their families may not want to discuss or be ready to confront LGBT issues. The ABR creates a disincentive to report for those students who may be targets of LGBT bullying, for fear that the investigative process will “out” them to the school and the home, before they are ready for such public knowledge.

School staff must find methods of respecting the privacy and dignity of LGBT students who experience bullying behaviors by creating safe, trusting methods of reporting and investigating allegations. This would require different methods of reporting and investigation than those currently in the ABR, and would require amendments to boards’ policies against bullying. Staff well-versed in LGBT issues should play major roles in developing such procedures.

4. Confirm that the ABR was enacted only for student-on-student bullying.
The ABR was written only for studenton- student bullying. Guidance from the NJDOE that any person can be accused of bullying a student is certainly true, but should not be part of the procedures set forth in the ABR.

The ABR is codified in statute in N.J.S.A. 18A:37, entitled, “Discipline of Pupils.” The regulations promulgated pursuant to the ABR are found in N.J.A.C. 6A:16-7.1, titled, “Student Conduct” and subtitled, “Code of Student Conduct.” The procedures outlined in the ABR unquestionably pertain only to students – not adults.

By lumping adults into the universe of potential violators of the ABR, we minimize the importance of adult-on-student bullying, and ignore important rights that should be afforded such different bullying situations. Adults do bully students in our schools. We should care about adult-onstudent bullying enough to address the issue with the same care and attention that the drafters of the ABR took in its deliberations some five years ago, when they wrote anti-bullying legislation premised upon student-on-student bullying.

A cogent argument can be made to enact new legislation for adult-on-student bullying that would be appropriately placed in Chapter 6 of Title 18A – “Provisions Relating to Educational Institutions and System.”

5. Eliminate the shaming aspects of the law.
When parents/guardians receive the statutorily- required letter from the superintendent of schools, proclaiming their child has been found to have been performing bullying behavior, they are experiencing one of the many shaming aspects of the ABR. Shame means that the person themselves is wrong – the person is a bully. On the other hand, guilt means that the person did something wrong. Those who are shamed want to ignore the issue, while those who are found guilty of something generally want to make the situation better. The primary response from families who receive the aforementioned letter of bullying is often a request to expunge the letter, for fear the label will follow the student through their educational career. The response from home, however, should be how the home and the school can work together to eliminate bullying behaviors. Shaming will not accomplish this goal. The ABR shames people who exhibit bullying behavior by labeling them as bullies.

The ABR shames school districts as they attempt to deal with the complexities of bullying by grading the district, and then requiring the district to publish the grade on its website. The irony of the ABR – an anti-bullying statute – is that many of its practices and procedures are, in and of themselves, shaming, and even bullying.

These processes do not do the ABR justice. The ABR exists in the context of institutions of learning. Students, by their very nature, display conduct that is in need of correction, modeling and improvement, including bullying conduct. Such behavior does not make them bullies, but instead, individuals who have exhibited bullying behavior. Similarly, educators widely accept that children should never be labeled as “bad,” but, instead, as having engaged in “bad conduct.” The ABR should be amended to rid itself of any procedures that lend themselves to shaming people or institutions, and replace those procedures with requirements for learning, accepting responsibility for actions, and improvement.

Changing school districts is very hard work. The ABR’s challenge is highly laudable, as it seeks to do hard work. But the law should be simplified and reconstructed in order to facilitate school climates and cultures that better provide for safe learning environments, free from bullying behavior.

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