LEGAL ONE BULLYING SUMMIT

1. LEGAL ONE BULLYING SUMMIT April 16, 2012

2. OVERVIEW OF SUMMIT GOALSParticipants will understand: • 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

3. Recent Developments January 5, 2011Governor 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

4. 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

5. 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

6. Provisions of New Law • 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

7. Implementation Issues 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?

8. Implementation Issues (cont’d) 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?

9. What is bullying???

10. START WITH DEFINITION “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

11. HIB DEFINITION (cont’d) 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

12. HIB Definition (cont’d) 3. Location of behavior: • On school property • At school-sponsored function • On a school bus • Off school grounds (including cyberspace)

13. 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

14. STICKING POINTS • 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

15. Case law on “characteristic” • “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).

16. Addressing Issues Outside • of School

17. CONDUCT AWAY FROM SCHOOL GROUNDS • 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)

18. CONDUCT AWAY FROM SCHOOL GROUNDS (cont’d) 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

19. Parental Rights

20. Parental Rights - Overview • 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

21. Parental Notice • 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

22. Parental Access to Records • Written report to parent must address: • Nature of investigation • Whether district found evidence of HIB • Whether discipline was imposed or services provided

23. 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

24. Student Surveys • 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

25. Student Surveys (cont’d) • 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

26. Who investigates • and how???

27. Key Points on Process • 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

28. Key Points on Process (cont’d) • 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.

29. Staff Members Accused of Bullying

30. Issues to Consider • 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?

31. School Safety Teams

32. Key Points for 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

33. IMPLEMENTING OTHER LAWS

34. TEEN DATING VIOLENCE LAW • In May 2011Governor 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

35. TEEN DATING VIOLENCE LAW (cont’d) • 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

36. New Definitions • “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

37. New Definitions (cont’d) • “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

38. Comparison between HIB & Dating Violence • 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

39. Comparison (cont’d) • 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

40. Other Laws to Consider • “Sexting” Statute • Harassment • Stalking • Hazing • Statutory Rape • Child Abuse and Neglect • Assault • Weapons Offenses • Search & Seizure

41. MORE INFORMATION 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

42. MORE INFORMATION (cont’d) • 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