Most people are familiar with school yard bullies either because they were a bully, been bullied, and/or witnessed bullying. Bullying has always been prevalent in our schools such that some nostalgically view it as a ‘rite of passage.’ This old-school way of thinking has given away over time to a zero tolerance to bullying approach based on empirical studies evidencing the severe psychological damage caused to children by childhood bullying, as well as highly publicized cases where bullying had fatal consequences. In New Jersey, the suicide of Rutgers University student named Tyler Clementi served as a clarion call to do something about bullying in our schools. Tyler was just 18 years old when he jumped from the George Washington Bridge to his death after being cyber-bullied by his roommate due to Tyler being a gay man. Statistics from the National Bullying Prevention Center show that about 20% of students report being bullied. However, that number increases drastically when a student has a ‘distinguishing characteristic,’ such as African American students (25%), those with a disability (35.3%), or identify as LGBTQ+ (74.1%). Bullying has been shown to lead to feelings of depression, anxiety and isolation, and victims of bullying are 2.6 times more likely to attempt suicide.
In response to these stomach churning statistics, and stories like Tyler’s, New Jersey passed what has been deemed by many as the strongest anti-bullying law in the nation, The Anti-Bullying Bill of Rights Act, N.J.S.A., 18A:37-13 (“ABBRA”). ABBRA prohibits ‘Harassment, Intimidation and Bullying’ (HIB) in school, on school buses, at school sanctioned events, and even off school grounds in certain circumstances. The law also mandates procedures to investigate and report HIB, requires consequences and remedial responses where HIB has been found, and an appeals process for any decision. It creates at least three new roles within each school district to handle investigations, oversite, and HIB education. ABBRA gives a broad definition of what constitutes HIB. It can be a gesture, physical act or inaction (such as isolation). It can be communicated verbally; in writing; or electronically through telephone, cell phone, email or social networking websites. HIB can be ongoing or a single incident. For a school district to find HIB under ABBRA, the incident must be reasonably perceived or actually be motivated by some specific characteristic 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. This can include characteristics such as obesity, scrawniness, or having lice – much broader protections than those provided by most civil rights laws.
ABBRA provides a remedy for students who have been bullied due to a protected class characteristic (e.g., race/color, sex/gender, national origin/ancestry, religion/creed, disability, or sexual orientation), and the school has not taken adequate action to address the problem. ABBRA specifically permits a student, parent, guardian, or organization to file a complaint with the New Jersey Division of Civil Rights under the New Jersey Law Against Discrimination (NJLAD) against a school district that does not follow the ABBRA’s intensive procedure to deal with an accusation of HIB.
A school district may also be liable under NJLAD if they knew or should have known about the bullying but failed to take reasonable action to address it, and, the conduct is considered severe or pervasive enough that a reasonable person of the same age, maturity level and distinguishing class characteristic would say that the incident created an intimidating, hostile or offensive school environment. George v. Board of Education, 34 F. Supp. 3d 442 (2014). Discrimination based on a distinguishing characteristic is called “bias-based” HIB. Simply following the procedures laid out by ABBRA does not necessarily allow school districts to escape liability. The actions taken after bullying is reported must be reasonably calculated to end specific types of bias-based HIB. ABBRA applies to bullying by other students as well as school employees, volunteers, and independent contractors.
If you or your child has been the victim of bullying at school and believe your school districts response has been in adequate, you and/or your child may have a claim. To learn more about the rights and remedies available under ABBRA and the NJLAD. Call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help.