October 18, 2011

Written By: Dana M. Lane

With the new Anti-Bullying Bill of Rights Act in effect in schools across New Jersey since Sept. 1, potential acts of harassment, intimidation and bullying (collectively referred to as HIB) are now under the microscope. As school officials implement the new law, they have a crucial tool to help guide them—the 2011 revisions to the Uniform State Memorandum of Agreement (MOA) issued recently by the Department of Education and law enforcement officials. The MOA addresses the new anti-bullying law and stresses the importance of coordinating efforts between law enforcement and schools in HIB cases.

Tough New Law

New Jersey now has the toughest anti-bullying law in the country, reaching farther than ever before both on and off school grounds to discipline inappropriate student interactions when they affect education. Early commentary on the new law is likewise proving to be somewhat tough. The law is being touted as too difficult to implement and interpret consistently, as well as placing too high a level of accountability upon school officials for student behavior that often occurs outside of school.

The new law places the onus primarily upon school officials to whom incidents of possible bullying must be promptly reported by teachers and staff members. In theory, it is fairly simple for teachers and staff members to report any potential HIB incident when it is either reported to them or they observe questionable behavior or comments firsthand. If there is any indication of a potential occurrence, they report it, without having to make major judgment calls.

However, school administration must then promptly review every reported incident, making the sometimes difficult determination as to whether the incident actually falls into the HIB category, and issue written reports regarding all HIB occurrences, the discipline imposed and other required follow-up procedures. Is second-grade name-calling always defined as bullying? With some incidents clearly more easily identifiable than others, this is the task now put to school officials throughout New Jersey.

And, they’ll be graded by the New Jersey Department of Education on their anti-bullying efforts – grades to be posted on the front page of each school district’s website and published in various other places.

Mandatory trainings and formation of school safety teams have been completed pursuant to the new law. There is talk among the education and legal communities that already overworked school guidance counselors and social workers are now taking on the new duties of receiving complaints about bullying and helping to police the schools for HIB activity. Undoubtedly, many school personnel are feeling a sense of heightened accountability.

Unresolved Questions

With the law so broadly stated, school employees may feel pressured to report a large number of incidents as potential HIB concerns. This could force schools to address an excessively large caseload.

Will a plethora of unnecessary lawsuits be forthcoming because the law is too strict and forces school officials into combat with parents? Exactly whose job is it to monitor the use of social media and how it impacts student interaction both on and off school grounds? At this early juncture, the jury is still out on those questions and many others.

AG Guidance

Fortunately, some help has surfaced from the New Jersey Attorney General’s Office and the Department of Education. Education and law enforcement officials recently released the 2011 revisions to the Uniform State Memorandum of Agreement (MOA), which provides guidance as to how schools should comply with the new anti-bullying legislation. In the past, the MOA predominantly has been used to address student substance abuse issues, but now it also specifically addresses the new anti-bullying law, stressing the importance of coordinating efforts between law enforcement and schools in HIB cases.

The Attorney General focuses on the distinctions between how schools and law enforcement operate in bullying investigations. There is no criminal offense for bullying, and many cases of bullying do not rise to the level of a criminal offense in the form of assault, harassment, threats, robbery or a sexual offense.

Law enforcement focuses on violations of the Code of Criminal Justice, not on school policies or statutory definitions of HIB. Therefore, although the “beyond a reasonable doubt” standard must be met in criminal and juvenile delinquency proceedings to convict an individual of violating one or more sections of the Code of Criminal Justice, school investigations of HIB need only focus on a determination of whether the conduct meets the definition of HIB provided by the new law.

Law enforcement has agreed to notify the school principal when a student or parent reports a HIB incident that meets the new statutory definition. However, since bullying is not a criminal offense, school officials are not required to report a bullying investigation to law enforcement unless the incident rises to the level of a criminal offense. HIB victims also may report incidents directly to law enforcement, and cannot be prevented or discouraged by school employees from doing so.

The Attorney General warns that school officials should avoid expressing any opinion to victims as to whether the alleged conduct constitutes a criminal offense. Other investigation tips for school officials include the following:

• Preserve all evidence and the chain of custody during school investigations by keeping evidence in a locked, secure location with a written record of the handling of evidence.
• Do not follow the general rule of suspending a disciplinary investigation pending the completion and outcome of a criminal investigation. The Anti-Bullying Bill of Rights Act provides mandatory time frames for school investigations and hearings, and there is no provision indicating any suspension of time pending a criminal investigation regarding the same conduct.
• When completing a HIB investigation within the mandatory 10-school-day time frame, coordinate efforts with any parallel criminal investigation being conducted by law enforcement.
• School officials and law enforcement may jointly review information and proceed with their respective investigations of a HIB incident. Follow the instructions of law enforcement, which may include a request to interview witnesses, obtain statements or review evidence before school officials proceed with those facets of their investigation.
• Complete the school investigation using all available information within the 10-school-day time period. Should additional information become available after that time when a criminal investigation is concluded, the new law allows the school anti-bullying specialist (typically the school guidance counselor or social worker) to amend the original investigation report to reflect the additional information.
• If a criminal investigation is being completed regarding HIB behavior, school officials must share information from the school investigation with law enforcement as appropriate.
• School officials may request testimony of a law enforcement officer at a suspension or expulsion hearing, or at a hearing regarding HIB by providing prior notification of the witness request to the County Prosecutor’s Office.
• The County Prosecutor’s Office may preclude the testimony of a law enforcement officer if the testimony could interfere with or jeopardize any ongoing criminal investigation or prosecution.
• If a law enforcement officer provides testimony at a school hearing regarding HIB, the information must be kept confidential.
• When a school principal is notified by law enforcement officials that juvenile delinquency or criminal charges are pending against a student regarding HIB, the school district must notify the County Prosecutor of all proposed witnesses for the criminal hearing at least five days before the hearing is scheduled to take place.

If the new law succeeds in what it seeks to accomplish, it will certainly effect many changes in schools, including the scope of the relationship between school and law enforcement officials, and how school communities perceive and react to bullying at its onset, not just after something tragic occurs.

Hill Wallack LLP’s School Law Group

Hill Wallack LLP’s School Law Practice Group has experience in every area of school law. Our attorneys serve as counsel to area school boards, handling cases before the Commissioner of Education, the State Board of Education, state and federal courts, and other administrative agencies including the Public Employment Relations Commission and the United States Equal Employment Opportunity Commission.

Working with school district board members, superintendents, and administrative personnel to effectively protect the board's economic and legal interests, the group seeks to address taxpayer concerns and is sympathetic to the budgetary constraints that often plague the board and restrict its ambition.

For more information, contact one of the attorneys who work in this area:

New Jersey

Rocky L. Peterson, Esq.
Dana M. Lane, Esq. 
Kenneth A. Skroumbelos, Esq.

Pennsylvania

David J. Truelove, Esq.
Vincent J. Magyar, Jr., Esq.

Trial & Insurance Defense

Jeffrey L. Shanaberger, Esq.

This article provides information of general interest and is not intended, and should not be used, as a substitute for consultation with legal counsel. Any questions regarding the specific issues raised in this article should be directed to the authors or to your contacts at Hill Wallack LLP.