LEGAL ONE BULLYING SUMMIT

April 16, 2012

the major legal developments in the implementation of the Anti-Bullying Bill of Rights (ABBR)

the unique issues that arise related to bullying in athletics, students with disabilities, and suicidal ideation

how to apply the law to real-world situations and avoid common pitfalls

resources that are available to assist districts What specific steps to take to move your district

forward and address the overarching issue of school climate

OVERVIEW OF SUMMIT GOALSParticipants will understand:

January 5, 2011 Governor Christie signed into law the “Anti-Bullying Bill of Rights” Act

New law went into effect September 2011

Amended the 2002 anti-bullying law

Enacted in response to high profile incidents and the report of the Commission on Bullying Prevention

Recent Developments

May, 2011 - Teen Dating Violence law signed, in effect in September

October, 2011 - NJDOE issued guidance on required professional/recommended PD

December, 2011 – NJDOE issued more detailed guidance on new law

December – First reported case in New Jersey addressing new bullying law – K.L. v. Evesham

Recent Developments

January, 2012 – Council on Local Mandates announces decision finding law to be unconstitutional in case brought by Allamuchy School District

March 2012 – Governor signs revised law providing for $1 million in funding, with restrictions, and creating task force to review law

Today – Law remains fully in effect

Recent Developments

Maintains current definition of bullying and current procedures

Appropriates $1 million for the Bullying Prevention Fund

School districts may apply for grants to use for “programs, approaches or personnel”

Must make affirmative showing that district explored available free resources first

Establishes 7-member Task Force to report within 180 days and annually for 3 years

Provisions of New Law

What is bullying?

Who can investigate and what process should be followed?

How do we address conduct away from school grounds, including cyberbullying?

What information must be shared with parents?

Implementation Issues

How do we address staff members accused of bullying?

What is the role of the School Safety Team?

How do we avoid legal liability?

How do we create a safe learning environment for all students?

Implementation Issues (cont’d)

What is bullying???

“Harassment, Intimidation or Bullying” (“HIB”)

1. Types of behaviors included:• ANY gesture, or• ANY written, verbal or physical act, or• ANY electronic communication• Can be a single incident or series of incidents

START WITH DEFINITION

2. Motivation for behavior:• ANY actual OR perceived characteristic• TYPES OF CHARACTERISTICS: race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or mental/physical/sensory disability, or ANY OTHER DISTINGUISHING CHARACTERISTIC

HIB DEFINITION (cont’d)

3. Location of behavior:•On school property• At school-sponsored function•On a school bus•Off school grounds (including cyberspace)

HIB Definition (cont’d)

4. BEHAVIOR MUST CAUSE SUBSTANTIAL DISRUPTION OR INTERFERENCE IN SCHOOL OR OF STUDENT RIGHTS, AND MEET ONE OF THE FOLLOWING CONDITIONS:• Physical or emotional harm to student or

damage to student’s property, or placing student in fear of harm to self or property• Effect of insulting or demeaning student or

group of students OR• Create “hostile educational environment” for

student by interfering with student’s education OR severely or pervasively causing physical or emotional harm to student

HIB DEFINITION (cont’d)

Actual or Perceived Characteristics◦ NOT meant for relationship disputes

Substantial Disruption◦ Not minor, passing issues

Imbalance in Power◦ Although not in formal definition, recognized in

Bullying Commission report and by most experts

STICKING POINTS

“Harmful or demeaning conduct motivated only by another reason, for example, a dispute about relationships or personal belongings, or aggressive conduct without identifiable motivation, does not come within the statutory definition of bullying.”

See K.L. v. Evesham Sch. Dist., 423 N.J. Super. 337, 351 (App. Div. 2011).

Case law on “characteristic”

Addressing Issues Outside

of School

Schools’ duty goes beyond “portal to portal”

Legal duty existed since 1971 decision in R.R. v. Shore Regional

Duty has been in NJ administrative code since 2005 (N.J.A.C. 6A:16-7.6)

CONDUCT AWAY FROM SCHOOL GROUNDS

New law doesn’t change scope of schools’ responsibility for student conduct away from school grounds

Recent cases involving student conduct outside school (e.g., Ramapo-Indian Hills; J.S. and Layshock) do not change this standard

CONDUCT AWAY FROM SCHOOL GROUNDS (cont’d)

Parental Rights

Right to know about incident immediately

Right to written summary of findings

Right to hearing before BOE

Right to appeal decision to Commissioner

Right to challenge findings in state or federal court under various discrimination laws

Parental Rights - Overview

Parents of both parties have right to notice on same day incident occurs

Need plan to address foreseeable incidents that occur after school hours at school events, field trips, on way home from school

Parent has right to written notice within 5

school days after results of investigation reported to board

Parental Notice

Written report to parent must address:

◦Nature of investigation

◦Whether district found evidence of HIB

◦Whether discipline was imposed or services provided

Parental Access to Records

One case suggests possibly broader rights:

◦ K.L. v. Evesham (case took place prior to new law)◦ Held that parent had rights to see school district’s

disciplinary referral form with redactions of other students names

◦ Form pertained to both alleged victim and aggressor

◦ Form had to be provided under FERPA, OPRA and common law

◦ Court noted nothing in ABBR expressly modifies pupil records law

Parental Access to Records

Important because NJDOE and many PD programs include student surveys to assess climate

Law requires 2-weeks prior parent permission

N.J.S.A. 18A:36-34

Applies to anonymous surveys

Student Surveys

Applies to surveys that reveal information concerning:

◦ mental and psychological problems that are potentially embarassing to student or family

◦ Illegal, anti-social, self-incriminating and demeaning behavior

Student Surveys (cont’d)

Who investigates and how???

ABS must be lead investigator (Can’t be Principal or Assistant Principal)

No leeway to screen cases

Superintendent role is to decide on discipline and other interventions, NOT to change findings

Key Points on Process

Every case must be: ◦ reported to the board at one monthly meeting, ◦ then written report goes to parent, ◦ then parent may request hearing

Whether or not parent requests hearing, board must affirm, reject, modify act to affirm, reject or modify decision reached by supt.

Key Points on Process (cont’d)

Staff Members Accused of

Bullying

Is there a conflict of interest for ABS? Are there immediate steps that need to be

taken while matter is investigated? Should DYFS and law enforcement be

contacted? Are steps being taken to avoid potential

allegations of retaliation and tampering with the investigation?

Issues to Consider

School Safety Teams

Chaired by ABS Critical role is to focus on school climate Must receive copies of all allegations and

investigation reports Charged with identifying patterns of

behavior and making meaningful recommendations

Key to moving away from reactive, crisis management approach

Parent role critical, but limited Key to avoiding legal liability

Key Points for Safety Teams

IMPLEMENTING OTHER LAWS

In May 2011 Governor Christie signed into law a statute addressing teen dating violence--new law went into effect September 2011

Overlaps with other existing laws, including Anti-Bullying Bill of Rights, “sexting” statute, various criminal statutes

TEEN DATING VIOLENCE LAW

Requires dating violence education in Health/PE curriculum for grades 7-12

Defines “dating violence” and “dating partner”

Schools must create policies that incorporate all tenets of the new law

Districts must be prepared to implement the new law immediately

TEEN DATING VIOLENCE LAW (cont’d)

“Dating Violence” means a pattern of behavior where one person either threatens to use, or actually uses, physical, sexual, verbal, or emotional abuse to control a dating partner.

“Dating Partner” means any person involved in an intimate association with another individual that is primarily characterized by the expectation of affectionate involvement, whether casual, serious, or long-term

New Definitions

“At school” means in a classroom or anywhere on school property, on a school bus or other school-related vehicle, at an official school bus stop, or at any school-sponsored activity or event whether or not it is on school grounds

New Definitions (cont’d)

Sexual harassment can be a form of dating violence

Dating relationship gone bad can lead to one dating partner singling out another due to an actual or perceived characteristic

Dating violence requires pattern of behavior, conduct on school grounds – contrast with HIB

Comparison between HIB & Dating Violence

1 day to report dating violence for staff v. 2 for HIB

Mental health assessment for dating violence in DOE model policy

Principal/designee can do investigation in dating violence, no requirement for board action in every case

Comparison (cont’d)

“Sexting” Statute Harassment Stalking Hazing Statutory Rape Child Abuse and Neglect Assault Weapons Offenses Search & Seizure

Other Laws to Consider

For more information go to:

FEA website – www.featraining.org

LEGAL ONE website – www.legalonenj.org

NJPSA website – www.njpsa.org

NJDOE – www.state.nj.us/education

MORE INFORMATION

NJ State Bar Foundation – www.njsbf.org

NJ Traumatic Loss Coalitions - http://ubhc.umdnj.edu/brti/tlc/index.htm

Hazelden Foundation -

http://www.hazelden.org/web/public/bullying_prevention.page

NJ Juvenile Justice Commission - http://www.nj.gov/lps/jjc/index.html

MORE INFORMATION (cont’d)