LEGALONEBullyingSummit - Foundation for Educational

Report
April 16, 2012
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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
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
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May, 2011 - Teen Dating Violence law
signed, in effect in September
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October, 2011 - NJDOE issued guidance on
required professional/recommended PD
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December, 2011 – NJDOE issued more
detailed guidance on new law
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December – First reported case in New Jersey
addressing new bullying law – K.L. v. Evesham
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
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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
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?
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?
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
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
3. Location of behavior:
• On school property
• At school-sponsored function
• On a school bus
• Off school grounds (including
cyberspace)
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
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Actual or Perceived Characteristics
◦ NOT meant for relationship disputes
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Substantial Disruption
◦ Not minor, passing issues
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Imbalance in Power
◦ Although not in formal definition, recognized in
Bullying Commission report and by most experts
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“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).
Addressing
Issues Outside
of School
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Schools’ duty goes beyond “portal to portal”
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Legal duty existed since 1971 decision in
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R.R. v. Shore Regional
Duty has been in NJ administrative code
since 2005 (N.J.A.C. 6A:16-7.6)
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
Parental
Rights
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Right to know about incident immediately
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Right to written summary of findings
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Right to hearing before BOE
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Right to appeal decision to Commissioner
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Right to challenge findings in state or federal
court under various discrimination laws
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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
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Parent has right to written notice within 5
school days after results of investigation
reported to board
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Written report to parent must address:
◦ Nature of investigation
◦ Whether district found evidence of HIB
◦ Whether discipline was imposed or
services provided
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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
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Important because NJDOE and many PD
programs include student surveys to assess
climate
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Law requires 2-weeks prior parent
permission
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N.J.S.A. 18A:36-34
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Applies to anonymous surveys
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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
Who
investigates
and how???
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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
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Every case must be:
◦ reported to the board at one monthly meeting,
◦ then written report goes to parent,
◦ then parent may request hearing
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Whether or not parent requests hearing,
board must affirm, reject, modify act to
affirm, reject or modify decision reached by
supt.
Staff
Members
Accused of
Bullying
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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?
School
Safety
Teams
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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
IMPLEMENTING
OTHER LAWS
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In May 2011 Governor Christie signed into
law a statute addressing teen dating
violence--new law went into effect September
2011
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Overlaps with other existing laws, including
Anti-Bullying Bill of Rights, “sexting” statute,
various criminal statutes
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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
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“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
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“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
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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
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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
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“Sexting” Statute
Harassment
Stalking
Hazing
Statutory Rape
Child Abuse and Neglect
Assault
Weapons Offenses
Search & Seizure
For more information go to:
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FEA website – www.featraining.org
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LEGAL ONE website – www.legalonenj.org
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NJPSA website – www.njpsa.org
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NJDOE – www.state.nj.us/education
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NJ State Bar Foundation – www.njsbf.org
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NJ Traumatic Loss Coalitions http://ubhc.umdnj.edu/brti/tlc/index.htm
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Hazelden Foundation http://www.hazelden.org/web/public/bullyin
g_prevention.page
NJ Juvenile Justice Commission http://www.nj.gov/lps/jjc/index.html

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