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New Jersey lawyer focusing on special education law and employment law

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NJ Anti-Bullying Bill of Rights Act – Part II

In a previous blog entry, I briefly explained the purpose of New Jersey’s Anti-Bullying Bill of Rights Act. I also suggested that Assemblyman Michael Patrick Carroll may have been on to something when he stated that the bill may increase taxpayer liability. If the bill contains language that is vague and overbroad, it will likely be litigated, which may cost New Jersey taxpayers an enormous amount of money.

The New Jersey Anti-Bullying Bill of Rights Act is a step in the right direction, but it is not without problems. For example, what might happen to K-12 schools and teachers that assign books such as Julius Lester’s “From Slave Ship to Freedom Road”? This is a history book that traces the history of slaves in America. According to the publisher, this book encourages

African Americans to examine their own feelings about being descended from slaves, provide Caucasian students with an insight into the African-American experience, and challenge students of all backgrounds to understand what it was in human nature that allowed the terrible institution of slavery to survive for so long. From Slave Ship to Freedom Road insists that students think about history, rather than simply learn the facts.

Even so, the N-word appears in this book six times.

When a fifth grade teacher in Michigan read passages of From Slave Ship to Freedom Road out loud in class, Jala Petree was apparently so offended by when she heard the N-word that she and her parents are suing the school district for racial discrimination, racial harassment, hostile environment, and intentional infliction of emotional distress. Jala and her parents seek “compensation for pain, suffering and emotional distress, humiliation and embarrassment, as well as damages set forth therein but not yet manifested.” The minimum amount of damages sought is $25,000.

If a book containing offensive words is assigned to students or read out loud in class, will students have any rights under the New Jersey Anti-Bullying Bill of Rights? According to the bill,

‘harassment, intimidation or bullying’ means any gesture, any written, verbal or physical act, or any electronic communication that … will have the effect of physically or emotionally harming a student … (Emphasis added.)

It remains to be seen how one can prove that a particular book reading or book assignment has caused “emotional harm” to the affected student. It also remains to be seen whether schools will discipline the teacher for having read aloud a book containing the N-word.

Matthew Heller in OnPoint News suggests that cases like the Jala Petree case will likely be thrown out. To support his argument, Mr. Heller reminds us of a similar case: Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022 (9th Cir. 1998). In this case, Mark Twain’s book, “The Adventures of Huckleberry Finn” was assigned reading. The book contains the N-word. A parent had sued a school district for assigning a book containing the N-word, and the 9th Circuit federal court held that it could not “ban books or other literary works from school curricula on the basis of their content . . . even when the works are accused of being racist in whole or in part.”

But even if such cases are thrown out, one or more New Jersey school districts will still have spent a tremendous amount of  taxpayer money in administrative costs determining whether a teacher should be disciplined as well as litigation costs for having litigated the matter.

None of this is to say that the New Jersey Anti-Bullying Bill of Rights Act is unhelpful. I have said many times that it is a step in the right direction, and in the long run, it will most likely help reduce the number of bullying/harassment incidences in school. But this may come at a high cost to the taxpayer — at least in the short term.

It will be interesting to see what happens to Jala Petree case. Keep an eye on it. In the meanwhile, if Governor Christie vetoes the bill, and there are not enough votes to pass the bill into law, the legislature should consider redrafting some of the language so that the bill is more specific and concrete.

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