With a new school year comes new challenges. Unfortunately, for many students, one of those challenges will be bullying. Though no student should be subjected to harassment, intimidation, or bullying, (“HIB”), the truth is that HIB is a widespread problem. The New Jersey legislature has taken a hard stance on HIB with its comprehensive anti-bullying statute, the 2010 Anti-Bullying Bill of Rights; however, enforcement of the law at individual schools can be weak. If you are faced with a situation where your child’s school is not taking HIB seriously, you should consult an attorney. Michael Poreda is an education lawyer in Somerville, New Jersey who has been working with the Anti-Bullying Bill of Rights since 2011.
The New Jersey Anti-Bullying Bill of Rights sets forth a specific procedure when students, parents, or teachers report that a student is being bullied. The school’s designated HIB specialist must immediately investigate and report back to the principal and the superintendent, and the superintendent must report the investigation to the State. Investigations must occur in any circumstance where a child faces hostility due to any characteristic or perceived characteristic such that the hostility interferes with the educational process. The law protects students against HIB that occurs at the hands of both students and staff. It protects students against on-campus, off-campus, and online bullying.
School officials sometimes avoid their responsibilities under the Anti-Bullying Bill of Rights when the victim of HIB lashes out against a bully. Where HIB results in a verbal or physical confrontation between the victim and the perpetrator, some school officials will react only to the fight and not to the HIB. In cases where HIB results in a fight, the correct action may in fact be to punish both the victim and the perpetrator, for example when the victim lashes out against verbal assaults with physical violence; nevertheless the verbal HIB still needs to be investigated pursuant to the Anti-Bullying Bill of Rights, and corrective action must be taken.
Student perpetrators of HIB are often aware of the protections under the Anti-Bullying Bill of Rights and may exploit them in ways that confuse school officials. For example, a student who is bullied for being overweight may lash out and call the perpetrator a “retard.” The perpetrator may then continue the bullying by filing a countercomplaint against the victim for using discriminatory language. Officials who do not do a thorough or thoughtful investigation may take an ambivalent stance in such situations and not take the appropriate corrective actions.
School officials may become the perpetrators of HIB in badly executed efforts to de-escalate tensions between victims and perpetrators. This may happen, for example, where a school official shares the same characteristic as the bullied student. The official may feel that he or she has triumphed over the adversity presented by the characteristic and counsels the student to “get tough” or “let it slide.” Such advice can leave a student feeling unsafe, especially if the official offers the de-escalating advice in lieu of reporting or investigating the underlying complaint.
Outright cultural insensitivity or bigotry can also be the cause of HIB perpetrated by school officials. For example, many transgender and non-binary students find that school officials treat their requests to use restrooms, pronouns, or names that correspond with their gender identity as willful, mischievous, or mere cries for attention, thereby creating a hostile educational environment for the student.
An attorney might be especially necessary when the perpetrator is engaging in HIB activity that the perpetrator could claim is protected free speech. Such problems are especially relevant in the current political climate. Schools do have an obligation to respect students’ free speech rights. At the same time, students can easily use political speech or materials to make other students feel targeted and unwelcome. In such cases where politics and HIB have become intertangled, parents will need a strong advocate to make the case for their child, as the school may become worried about liability for silencing speech that the perpetrator claims is protected.
Another situation which may require a lawyer is cross-district bullying. The Anti-Bullying Bill of Rights does not explain what should occur if a student in School District A is being bullied online or out-of-school by a student in School District B. In such a situation, you may need an attorney to coordinate a cross-district anti-bullying plan.
Private schools are not subject to the Anti-Bullying Bill of Rights, which means HIB at a private school often requires a lawyer to resolve. Even though private schools do not have to answer to the State for HIB, many private schools have their own anti-bullying policies. In such situations, failure to abide by the internal policy could result in a breach of contract lawsuit against the school.
The Anti-Bullying Bill of Rights does not provide for a legal cause of action where the school has failed in its obligation to investigate and remediate HIB. If the HIB has involved a characteristic, such as race, religion, disability, gender identity, or sexual orientation, which is protected under New Jersey’s Law Against Discrimination (“LAD”), a lawsuit may be appropriate. Where the HIB has resulted in physical or serious psychological injury, tort lawsuits may also be viable options to discuss with your lawyer. Outside of the LAD and tort, recourse against a public school that fails to address HIB is administrative. Schools that have failed to meet their obligations under the Anti-Bullying Bill of Rights should be reported to the County Superintendent. Having a bullying specialist write your complaint can help your complaint get prompt attention.