Anti-bullying bill bad for taxpayers, some say

By Jessica M. Karmasek | Dec 8, 2010


TRENTON, N.J. (Legal Newsline) - New Jersey lawmakers, in the wake of a tragic school bullying incident, have passed an anti-bullying law that looks to prevent such acts on campuses, though some argue the proposed legislation means more liability will be placed on taxpayers.

The lone member of the state Legislature to vote against the bill, as well as a legal reform group in the state, say the bill will have unintended consequences from the increased amount of bureaucratic procedures school districts must follow.

"The New Jersey Lawsuit Reform Alliance believes school districts have an obligation to enforce the state's Law Against Discrimination and be responsive to student bullying," NJLRA executive director Marcus Rayner said.

"But civil liability ultimately belongs on the backs of the bullies themselves and not state taxpayers."

Assemblyman Michael P. Carroll, in an op-ed, voiced his displeasure with the bill.

"Now, every tragedy will come complete with a trial lawyer. And the taxpayers will pick up the tab for these suits," Carroll wrote.

Bullying in the news

The most recent and perhaps the most devastating case of school bullying in the state of New Jersey came in September at Rutgers University.

Tyler Clementi, an 18-year-old violinist in his freshman year at the university, jumped to his death on Sept. 20 after his dormitory roommate and another student posted a video of sexual encounters he had with another man online.

The incident isn't the first case of bullying to result in a teenager's death.

In 2008, Jessica Logan, an 18-year-old from Cincinnati, hanged herself after an ex-boyfriend circulated nude cell phone photos she had "sexted" to him.

Last February, Phoebe Prince, a 15-year-old from Massachusetts, took her life after allegedly being tormented by several classmates. Her suicide, along with that of 11-year-old Carl Joseph Walker Hoover of Springfield, prompted Gov. Deval Patrick to sign a new law on bullying in schools in May.

And more recently, in Martinsburg, W.Va., a student at North Middle School reportedly committed suicide. It is believed that bullying led the student to kill himself last month, according to the local paper, The Journal.

The student, according to local media outlets, told family members he was being bullied about his weight.

At the time, Jaimee Borger, a district spokeswoman for Berkeley County Schools, told the paper, "The Board of Education has programs in place that are to help students deal with bullying in the school, and the county has a zero-tolerance policy for bullying in the schools."

But it was the incident at Rutgers -- which made national news and led to a public outcry by special interest groups over the proper punishment -- that prompted the New Jersey Legislature to take action.

About the bill

While other anti-bullying acts idled in the state Legislature for years, the current bill, A-3466, was overwhelmingly approved (102-1) by the New Jersey General Assembly and Senate on Nov. 22 and now sits on the desk of Republican Gov. Chris Christie, who has not said whether he will sign it.

The Anti-Bullying Bill of Rights Act, as it is titled, revises and supplements the law on harassment, intimidation and bullying in public schools. The legislation also includes a number of recommendations of the state's Commission on Bullying in Schools, as contained in its report issued in December 2009.

The bill amends the definition of "harassment, intimidation or bullying" to provide that an incident must either substantially disrupt or interfere with the orderly operation of the school or the rights of other students, and to add additional criteria to the definition -- "the creation of 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."

It also adds a conviction of "bias intimidation" to the list of crimes for which a person may be disqualified for employment in a school, and provides that training on harassment, intimidation and bullying be part of that required for public school teaching staff members in suicide prevention.

According to a summary of the legislation, the bill also:

* Requires school districts to establish bullying prevention programs or approaches. Under current law, school districts are only "encouraged" to establish such programs;

* Provides that a school district's policy on harassment, intimidation and bullying must include appropriate responses to such actions that occur off school grounds;

* Provides that the state Department of Education, in consultation with the state Division on Civil Rights in the Department of Law and Public Safety, must develop a guidance document for use by parents, students and school districts to assist in resolving complaints regarding harassment, intimidation or bullying behaviors;

* Provides that a school administrator who fails to initiate or conduct an investigation of an incident, or who should have known of an incident and fails to take action, is subject to discipline;

* Requires that a school employee or contracted service provider must file a written report with the school principal within two days of observing or being made aware of an act of harassment, intimidation or bullying;

* Provides that the principal in each public school must appoint the currently employed school guidance counselor, school psychologist or another similarly trained individual as the school anti-bullying specialist; and

* Provides that the superintendent of schools in each school district must appoint a district anti-bullying coordinator and sets forth the responsibilities of that individual;

The legislation also requires the creation of a Bullying Prevention Fund within the state Department of Education to be used to fund grants to school districts to provide training on harassment, intimidation and bullying prevention and on effective means of creating a "positive school climate;" and designates the week beginning with the first Monday in October of each year as a Week of Respect, requiring all districts to observe the week by providing instruction on preventing harassment, intimidation or bullying.

What it means

Carroll, a Republican from Morris Township who represents the 25th District in the New Jersey General Assembly, cast the only "no" vote against the anti-bullying law.

Carroll, in a Nov. 28 op-ed in the Daily Record, explains his vote.

The problem with the legislation, he writes, is the law "worries about the group membership of the victim, not the conduct of the bully, the suffering of a victim who isn't gay, black, disabled, etc., simply doesn't count."

He contends the law's definition of bullying is "indefensibly discriminatory" and omits "the vast majority of actual victims of old-fashioned bullying."

The bill, which he says is "misnamed" the Anti-Bullying Bill of Rights Act, contains "absolutely no new 'rights' for the victim."

Instead, Carroll argues, the legislation "imposes substantial new mandates on teachers, contractors, principals, superintendents and boards of education to adopt policies, make reports, etc. But if they fail to follow those mandates, who suffers?"

The taxpayers do, he says.

The lone dissenter argues that the law is basically creating an opportunity for parents to sue and hold the district, and taxpayers, liable while evading their own parental liability.

Carroll says the "rushed law," which was introduced on Nov. 8, just two weeks before it came to the floor, "neglects the suffering of the vast majority of true victims; only a member of a politically correct group can be a victim; it imposes substantial new mandates on school employees, but punishes the taxpayers if the employees get it wrong."

NJLRA argues that because state schools are required to give a "thorough and efficient" education, then even expelling a bully creates legal hurdles.

NJLRA also says that employees or school districts who do not follow the procedures won't be reprimanded or terminated. Instead, lawsuits will follow as a result of their actions.

In his op-ed, Carroll points out that the bill fails to discuss the real problem, the bully him or herself, at all. "Nothing in this proposal is directed at him," he writes.

"Dealing with bullies is not rocket science. It requires no advanced degree, nothing more than simple common sense. To the extent that any legislation is required to reinforce that which should be immediately obvious to any adult, we should start with a simple definition of 'bully' -- using strength or power to intimidate someone weaker," Carroll writes.

"The bully's conduct, not the sexual preference of his victim, should drive the definition. More specifically, dealing with bullying involves a simple set of 'thou shalt nots,' including any unprivileged touching; harassment; assault; stalking; threats; or any other conduct which a school might define as inconsistent with the health, welfare and safety of its student population."

Whether the victim is gay or straight, black or white, male or female, should make absolutely no difference, he writes.

Of the end result, Carroll writes, "The Legislature preferred to be seen to be promptly reacting to a tragedy (the suicide of a Rutgers student), rather than taking the time to actually make good policy."

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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