• Michael Poreda

Accused of Unintentional Bullying

When we speak of “bullying” in everyday language, we think of someone who intentionally does something to harm another. But New Jersey’s Anti-Bullying Bill of Rights says nothing about intent. Consequently, it is not uncommon for parents to be notified by school districts that their students are under investigation for HIB (harassment, intimidation, or bullying) for making comments that they didn’t mean to be offensive. Teachers are also frequently accused of HIB for comments that they didn’t know would be offensive.

Imagine, for example, that a white sixth grader looks at the chocolate and vanilla ice cream in her dixie cup and tells her Black friend sitting next to her in the lunch room: “My ice cream is just like us: chocolate and vanilla.” The Black friend feels humiliated by this comment, reports the comment to her mother in tears, and the mother files a HIB report.

Under the Anti-Bullying Bill of Rights, the school’s anti-bullying specialist has to conduct an investigation and determine whether comment constitutes HIB. The definition of HIB that the specialist must work with is:

any gesture . . .act. . .or communication 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 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.

During the investigation it’s apparent that the white student meant for the comment to be endearing and didn’t think about the racial fetishization that her comment implied. The anti-bullying specialist might still reasonably conclude that the comment constituted HIB, as it was clearly motivated by race, disrupted the victim’s right to be free from humiliation based on race, and was a comment that would be demeaning to all Black students. The specialist recommends guided dialogue between the two students and an apology by the white student. Even though no one really “gets in trouble,” the HIB goes on the white student’s record pursuant to the district’s anti-bullying policy that states an adjudication of HIB goes on the student’s disciplinary record.

A case like this might be worth appealing if the spot on the disciplinary record makes you feel uncomfortable. In one appeal of a school district’s HIB adjudication, an Administrative Law Judge found that the Anti-Bullying Bill of Rights contains an implied element of intent. In Webeh v. Verona School District, a chemistry teacher was accused of HIB when she told a student who was struggling in honors chemistry that she didn’t think the student should take Advanced Placement Chemistry. The student was a classified special education student whose disability was rooted in anxiety. The comment caused the student significant distress. The district found that the teacher was guilty of “unintentional HIB.”

The teacher asked that the HIB adjudication be dismissed on the grounds that there could be no such thing as “unintentional HIB.” The school district argued that the Anti-Bullying Bill of Rights contains no mention of intent. Although the school district is correct, the judge found the Anti-Bullying Bill of Rights implies an element of intent. The judge’s conclusion was based on two observations. First, the statute speaks of the “reasonable perception” of the victim. The judge found that a reasonable person would not feel that they are the victim of HIB unless there was actually a bad motive behind the words or gesture in question. Second, the judge stated that prong A’s use of the phrase “a reasonable person should know” implied a bad intent requirement.

The judge’s analysis, while it seems a fair result, is a technically problematic interpretation of the Anti-Bullying Bill of Rights. For example, the statute only says that the victim must reasonably perceive the comment as being motivated by a distinguishing characteristic, not that it was motivated by an intent to harm. In the ice cream hypothetical, for example the comment was clearly motivated by the victim’s skin color – it just wasn’t the intent of the white student to be demeaning.

Moreover, the Wehbeh judge’s finding about prong A of the HIB definition is questionable. The phrase “a reasonable person should know” refers to the classic common law standard for negligence. Negligence is a tort that can be committed without knowledge of wrongdoing. It’s just the absence of reasonable care. Perhaps the chemistry teacher did not actually know that her student had a disability; but she should have. Similarly, perhaps a reasonable sixth grader should know that comparing a person’s skin color to chocolate is demeaning, but this particular sixth-grader actually did not.

The Wehbeh case is persuasive but not binding authority. Until a case raising the same question gets appealed from the Commissioner of Education to the Appellate Division of the Superior Court of New Jersey, the true meaning of the law remains ambiguous. Because of the expense of these appeals, it is not likely that one will soon emerge.

If you are in a situation where you feel you or child has been accused of bullying for behavior that lacked bad intent, you would likely benefit from hiring an attorney experienced with HIB. Your attorney could speak with the district’s attorney about the Wehbeh case and might persuade the district to rule in your child’s favor based on the lack of bad intent.

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