Bullying, Intimidation and Harassment Rockaway Township Board of Education Board Training October 5, 2011

1. Bullying, Intimidation and HarassmentRockaway Township Board of EducationBoard TrainingOctober 5, 2011 Nicholas J. Dotoli, Ed.M., Esq. _____________________________ Schwartz Simon Edelstein & Celso LLC 100 South Jefferson Road, Suite 200 Whippany, NJ 07981 Tel: 973.301.0001 Fax: 973.993.3152 www.sseclaw.com This presentation is designed to keep you aware of recent developments in the law. It is not intended to be legal advise, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.

2. Bullying, Intimidation and Harassment Overview: Genesis of the New Law Terminology Enhanced District Responsibilities School Safety Teams & Responsibilities Investigations Part II: Board Member Indemnification Scenarios: Identifying Bullying SSE&C

3. Existing Federal/State Protection • FEDERAL PROTECTION • Title VII • Prohibits employment discrimination because of an individual’s sex, race, color, national origin, and religion. • Title IX • Prohibits exclusion or discrimination in any educational program based on sex SSE&C

4. NJLAD • New Jersey Law Against Discrimination (NJLAD) • Unlike many federal laws, NJLAD applies to all employers regardless of the number of persons employed • Offers broader protection than the federal law SSE&C

5. Creed Marital Status Handicap Atypical hereditary cellular or blood trait Ancestry Sexual Preference Gender identity or expression Civil Union Status Genetic Information Age (beginning at 18) Race Color National Origin Sex Pregnancy Familial Status NJLAD prohibits discrimination based on: SSE&C

6. L.W. v. Toms River Factual BackgroundGrade and Middle School Incidents • 4th grade: L.W. taunted by other students who referred to him as “gay”, “homo” and “fag”– comments were made several times per month. • 5th grade: remarks became more frequent – L.W. stopped attending school. • 6th grade: teasing because of perceived homosexuality became worse. • Perpetrators were counseled by staff. • 7th grade: L.W. was verbally harassed on an almost daily basis – he was called “faggot”, “homo” and “butt boy.” • Involved students & L.W. counseled by staff. Guidance counselor told him to “toughen up” and “turn the other cheek.” • L.W.’s locker was moved closer to the office and he was more closely monitored by the staff. • 8th grade: same pattern of harassment continued. SSE&C

7. L.W. v. Toms River: Factual Background High School – Freshman Year • L.W. was verbally and physically assaulted based on perceived homosexuality while walking home from school. • The assaulting student was immediately suspended. It was suggested to L.W. that he take the bus in the future. • L.W. was verbally and physically assaulted based on perceived homosexuality while at the 7-Eleven at lunch time. • The assaulting student was immediately suspended. Staff suggested that L.W. remain at school during lunch and not eat off-campus. • L.W. transferred to Red Bank Regional H.S. in the middle of his Freshman Year and then later transferred to the Performing Arts Academy and the Ocean County Vo-Tech. SSE&C

8. L.W. v. Toms River (continued) • L.W.’s parent filed a suit with the Division of Civil Rights claiming that L.W. was harassed due to his perceived sexual orientation. The DCR dismissed the complaint, stating that L.W. failed to show that the District was deliberately indifferent to the harassment. • On appeal, the DCR director concluded that the protections of the New Jersey Law Against Discrimination cover public school students. • A school district is liable for harassment where the school administration knew or should have known of the harassment and failed to take effective measures to stop it. This is the same standard that applies to workplace harassment SSE&C

9. L.W. v. Toms River (continued) • On appeal, the Appellate Division concluded that the protections of the LAD apply to a student that establishes he or she was subjected to harassment by other students in violation of NJ LAD and the harassment creates a hostile environment. • The decision was affirmed by the Supreme Court. To state a claim under the LAD the student must allege that: • the discriminatory conduct would not have occurred “but for” the student’s protected characteristic; • a reasonable student of the same age, maturity level and protected characteristic would consider the conduct sufficiently severe or pervasive enough to create an intimidating, hostile or offensive school environment; and • the school district failed to reasonably address such conduct. SSE&C

10. L.W. v. Toms River (continued) • District liability may include compensatory damages if: • the district lacks appropriate anti-harassment policies, programs or monitoring; OR • the district knew or should have known of the unlawful harassment and failed to take effective measures to stop it. SSE&C

11. New Jersey Anti-Bullying Bill of Rights Act • On January 5, 2011, Governor Christie signed the Anti-Bullying Bill of Rights Act, which creates a duty for public schools to: • Investigate reports of harassment, intimidation or bullying; • Collect and report data to the State regarding reports of harassment, intimidation or bullying; • Provide training to teachers and staff on the school’s harassment, intimidation or bullying policies and prevention methods; • Appoint an anti-bullying specialist in each school; • Appoint a district anti-bullying coordinator; • And form a school safety team in each school. SSE&C

12. What is “HIB?” • Harassment, Intimidation or Bullying is “any gesture, any written, verbal or physical act, or any electronic communication, whether it be: • a single incident or; • a series of incidents, • that is reasonably perceived as being motivated either by anyactual or perceived characteristic, that takes place: • on school property; • at any school-sponsored function; • on the school bus; or • off school grounds . . . that substantially disrupts or interferes with the orderly operation of the school or the rights of other students N.J.S.A. 18A:37-14 SSE&C

13. Defining The Terms Actual or Perceived Characteristics: • 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; Your Responsibilities: • a reasonable person should know, under the circumstances, that specific behavior 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 his property; • has the effect of insulting or demeaning any student or group of students; or • 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.” N.J.S.A. 18A:37-14 SSE&C

14. “Cyber-bullying” • By including the phrase “or any electronic communication” in the above definition, the Anti-Bullying Bill of Rights also protects students from Cyber-Bullying, including information exchanged via email, text messages, and/or Facebook or other on-line social networks. • Electronic communication: “A communication transmitted by means of electronic device including, but not limited to a telephone, cellular phone, computer or pager.” N.J.S.A. 18A:37-14. SSE&C

15. New District Requirements • Adopt an anti-bullying policy, prominently posted on the District’s website. • Create anti-bullying coordinator(s) and anti-bullying specialist(s). • School Anti-Bullying Specialist bears primary responsibility to prevent, identify, and investigate claims of harassment, bullying or intimidation • District Anti-Bullying Coordinator is responsible for coordinating and strengthening policies, collaborating to prevent, identify and respond to bullying, harassment and intimidation and to provide data to the DOE. • Create Safety Teams: Principals, a teacher in the school, a school anti-bullying specialist, a parent of the student in the school and any other individual as determined by the principal with names and school contact information posted on the District’s website and all individual school websites. SSE&C

16. Members of the Team • School Safety Teams • Chaired by the anti-bullying specialist; • Team receives copies of all reports; • Must meet at least two (2) times per year; • Look for and identify behavior; • Review reports to ensure that the legal requirements are met; • Makes recommendations for education and training. SSE&C

17. The Role of the School Safety Team Procedural: • Receive any complaints of harassment, intimidation, or bullying of students; • Receive copies of any report prepared after an investigation. Educational: • Identify and address patterns of harassment, intimidation, or bullying; • Review and strengthen school climate and the policies of the school in order to prevent and address harassment, intimidation, or bullying of students; • Educate the community, including students, teachers, administrative staff, and parents, to prevent and address harassment, intimidation, or bullying of students; • Participate in the training required pursuant to the provisions of P.L.2002, c.83 (C.18A:37-13 et seq.) and other training which the principal or the district anti-bullying coordinator may request; • Collaborate with the district anti-bullying coordinator in the collection of district-wide data and in the development of district policies to prevent and address harassment, intimidation, or bullying of students; and N.J.S.A. 18A:37-21 SSE&C

18. Investigation • Investigation begins with principal (or designee) within one (1) day of receiving the report. • Anti-Bullying specialists complete the investigation. • Maximum of 10 days to complete the investigation. • If information is missing at the end of 10 days, a report must still be prepared and amended after that information becomes available. • Conclusion reported to Superintendent within 2 days of investigation’s completion • Superintendent determines the remedial action: intervention, discipline, counseling and/or other appropriate measures • Superintendent reports to the Board at the next meeting. SSE&C

19. Parental Rights • After investigation results are reported to the Board, the District has five (5) days to report information to the parents. • Parents are entitled to know: • Nature of investigation • If bullying, harassment and/or intimidation was found; and/or • Whether discipline or services were provided. • Parents have the right to request a Board hearing. • Must be provided within 10 days in executive session. SSE&C

20. The Report Although reports may vary depending upon the nature of the matter being investigated, there are certain elements that should be included in all reports: • Description of the allegations contained in the complaint; • List of individuals who were interviewed; • Summary of the witness statements; • List of documents obtained; • Conclusion and analysis. • Note: Reports should NEVER be distributed to any party without central office’s prior approval. SSE&C

21. Board Policy Requirements • A provision to address conduct that occurs off of school grounds when such conduct substantially interferes with the operation of the school or the rights of other students; • The investigation process; • Range of responses (discipline) to address behaviors; • Clarifying the definition to apply to either one act or a series of incidents. A review of your district’s revised Board Policies. SSE&C

22. The New District Structure SSE&C

23. The New District Structure

24. The Presenter:Nicholas J. Dotoli, Ed.M., Esq. Nicholas J. Dotoli holds a bachelors of arts degree (Wesleyan University), an Ed.M. (Harvard University) and a Juris Doctorate (Rutgers Law School). Mr. Dotoli spent ten years in New Jersey State Government both as an aide to the New Jersey Assembly Education Committee and as a policy and planning associate at the New Jersey Department of Education. Mr. Dotoli, Counsel, practices general school law at the law firm of Schwartz Simon Edelstein & Celso. Mr. Dotoli’s responsibilities include representation before the Government Records Council, the Public Employment Relations Commission, the Office of Administrative Law and the United States Department of Education, Office of Civil Rights. Mr. Dotoli is licensed to practice law in New Jersey, before the United States District Court for the District of New Jersey and in New York SSE&C