The United States Department of Education, Office for Civil Rights, reports that students receiving services related to their disabilities “are bullied or harassed more than their . . . peers,” and “are disproportionally affected by bullying.” New Jersey law provides significant remedies for bullying through the Anti-Bullying Bill of Rights Act. (“ABRA,” N.J.S.A. 18A:37-14 et seq.).
Harassment, intimidation, and bullying (“HIB”) has been given a broad definition under New Jersey law. An incident of HIB occurs whenever there is a reasonable perception that the incident was motivated “by any actual or perceived characteristic (e.g., “he is overweight,” “she is deaf,” “he is a poor student”), as long as the incident disrupts the ordinary operation of the school, or, more usually, the victim’s rights, and as long as a reasonable person should know that the incident would cause physical or emotional harm or would insult or demean the victim or create a hostile environment for the victim.
The harassing or bullying incident need not occur on school grounds. As long as a school employee is made aware of the incident and the incident substantially disrupts or interferes with the orderly operation of the school, or the target child’s rights to education, there may be a finding of HIB. In the era of cyber-bullying, this is an important protection. Indeed, the ABRA specifically bans HIB by use of a “telephone, cellular phone, computer, or pager,” regardless of whether use of the device occurred on school grounds.
Parents can take a variety of steps in response to an incident of HIB. The first is to contact your child’s school principal or the Superintendent of Schools. The law is clear as to how important speed is in this context. If the first contact is, for example, to a teacher or administrative assistant of the principal, they have an obligation to report immediately: “All acts of harassment, intimidation, and bullying shall be reported verbally to the school principal on the same day.” The statute goes on, “the investigation shall be initiated by the principal. . . within one school day. . . the investigation shall be completed. . . not later than 10 school days from the date of the written report of the incident. . . . “ This language indicates how strongly the Legislature—aware of how dangerous school bullying can be if not stopped immediately—felt about the need for prompt intervention. In addition to requiring school districts to follow the ABRA’s requirements, the Legislature also encouraged state-approved private schools for students with disabilities to follow the ABRA.
We recommend that parents report not only to their child’s principal, but also to the Child Study Team (“CST”) since HIB may often keep a child with a disability from receiving a free and appropriate education (“FAPE”). To give just one example, the United States Department of Education, Office for Civil Rights, has determined that over 10% of all HIB incidents involve “allegations of discrimination against a student with ADHD.” Experts opine that when a student is bullied, he or she may bully in return; the CST must therefore learn about any incident of HIB as soon as possible to make certain that the student can receive all the benefits and supports expected under his or her IEP or 504 plan. If necessary, the IEP or 504 plan may be changed to protect a child from HIB.
The law assists victims of school bullying by giving the victims and their parents several vehicles to fight back. If the school district does not do enough to control the bullying, the parent can contact their county office of the New Jersey Department of Education (the “NJDOE”), and/or the N.J. Division on Civil Rights if, as is usual, the HIB is based on the victim’s membership in a protected class, which includes disability. Of course, a parent can always contact the local police if the HIB is deemed to be relatively dangerous. And last, but far from least, the parent can file a civil suit in the Superior Court against the bully, the bully’s parents, and the school or school district.
School districts must make and maintain accurate records of HIB complaints and investigations. If the school district has not done an adequate job of combatting or addressing HIB a school district and its officials may face civil liability.