The following article, “Getting Beyond ‘Kids Will Be Kids,’” authored by Laddey, Clark & Ryan partner Thomas H. Prol, was published in the New Jersey Herald.
“Kids will be kids” is both a maxim and an excuse in the context of childhood interaction. It is important to understand what “bullying” is compared to childhood teasing among young people. Harassment, intimidation and bullying (“HIB”) is a pernicious and psychologically debilitating peer-to-peer aggression marked by intentional and repeated acts involving a power imbalance between aggressor and victim. HIB can be indistinguishable to people who are untrained to recognize the difference between it and childhood teasing.
In 2011, New Jersey updated its 2002 anti-bullying law, already one the most far-reaching laws in the United States, to better prevent and address HIB in public schools. Though copied by several states afterwards, the initial implementation of the New Jersey Anti-Bullying Bill of Rights was not without pushback. The update was necessary as the predecessor law was not fully effective in eradicating HIB from schools, something made clear in the New Jersey Supreme Court’s 2007 decision, L.W. v. Toms River Regional Schools Board of Education. There, a vicious bullying campaign was leveled against a boy during his elementary school, middle and high school years, and he was repeatedly taunted, physically attacked, and humiliated based on the perception he was gay. In L.W., the unanimous Supreme Court held that a school district is liable for failing to protect a student in its charge from HIB, though they are not required to purge the school of all peer harassment to avoid liability. Recognizing the cumulative effect of multiple HIB incidents on a child’s psyche, the Court required each school must “implement effective preventive and remedial measures to curb severe or pervasive discriminatory mistreatment.” If a hostile educational environment is created and the school “knew or should have known of the harassment, but failed to take action reasonably calculated to end the harassment” there can be liability.
The updated law requires that when any school personnel observe an incident of HIB, it must be reported and investigated within 10 days of the incident along with notifications to families. The effect of this legally mandated process cannot be understated: It imposes order on the situation for all involved, including the accused, and literally calls to the table all stakeholders in the incident with professionals who are trained to understand and address HIB.
What is lost on many people in this conversation is that, assuming the school personnel honor their obligation to properly report the incident, the Anti-Bullying Bill of Rights rewards them with important protections: Making them “immune” from damages in a civil lawsuit and providing a defense to disciplinary charges.
The updated law was the first in the country to recognize the impact of social media as a bully’s weapon of choice, where HIB occurs far-removed from the watchful eye of school personnel. On social media, HIB has an even crueler, ravaging effect because it can linger as a permanent post and invite a group of peers to join in from the comfort of their homes, taunting the victim beyond the simple interaction one might have seen previously in a one-on-one episode on the playground or in the school hallway.
Candidly, as one of the many professionals involved in drafting and advocating for the Anti-Bullying Bill of Rights, I will allow that the provision regulating actions outside of the classroom proper was difficult to craft, but it was the most important to include because of the impact on the school environment and the victim’s ability to effectively learn and participate in his or her education. Guided by the legal analysis laid out by U.S. Supreme Court Justice Samuel Alito (when he was on the Third Circuit Court of Appeals), we sought to balance any limits on Free Speech against the right to be free of harassment as established under Pennsylvania law in Saxe v. State College Area School District.
The New Jersey State Bar Foundation, Garden State Equality and other organizations offer free education to school districts to help them understand and address HIB. They also provide resources online to parents and students. It is important to understand your rights if you or your child are either the victim or accused of HIB, and you must be vigilant during any investigation. Sometimes schools seek to impose a “zero tolerance policy” that carries drastic consequences without fully addressing the underlying issue.
On the flip side, sometimes schools try to marginalize individual incidents without properly considering the ongoing and systematic context of the HIB and its impact on a victim. Stay informed if you or your child are involved in this process. If you work in a school district, be sure to reach out for the many free resources that will help you effectively educate and help children.
Thomas Prol is partner at Laddey, Clark & Ryan, LLP in Sparta. In addition to serving as the president of the New Jersey State Bar Association in 2016-17, he was a trustee of the state bar foundation from 2012-18, and is a founding and current board member of Garden State Equality, the largest LGBT civil rights organization in New Jersey.