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NJ Anti-Bullying Bill of Rights Act

The New Jersey Anti-Bullying Bill of Rights Act awaits Governor Christie’s signature. The bill passed 30-0 in the State Senate and 71-1 in the State Assembly (with five members abstaining).

Two questions: (1) What does the bill do? and (2) Why did Assemblyman Michael Patrick Carroll (R-Morris) vote against the bill?

Let’s briefly tackle the first question. The Anti-Bullying Bill of Rights Act is a bill that prohibits harassment, intimidation or bullying on school property, school-sponsored functions, or on school buses. The bill’s language is quite strong:

“Harassment, intimidation or bullying” means any gesture, any written, verbal or physical act, or any electronic communication that is reasonably perceived as being motivated either by any actual or perceived 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, that takes place on school property, at any school-sponsored function or on a school bus and that:

a. a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student’s property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;

b. has the effect of insulting or demeaning any student or group of students in such a way as to cause disruption in, or interference with, the orderly operation of the school;

c. creates a hostile environment at school for the student; or

d. infringes on the rights of the student at school.

In addition, the bill requires that school personnel be trained to identify and address bullying, intimidation, and harassment. Moreover, schools are required to draft comprehensive anti-bullying policies, develop programs to raise awareness of bullying and harassment and how to address them, as well as to report any such incidences twice a year.

One important part of the bill is that a school administrator will be subject to discipline if she fails to conduct an investigation of a known incident of bullying or failed to take appropriate action to address the incident and remedy the situation.

A brief summary of the bill can be found here.

Now that we understand what the bill is and its aims, let’s move on to the second question: Why did Assemblyman Michael Patrick Carroll (R-Morris) vote against the bill?

Mr. Carroll spoke to the press and gave several reasons why he voted against the bill.

In the Westfield Patch, Mr. Carroll stated that the bill did not cover “all” cases of bullying: “If you are harassed based on being bookish or nerdish you are not covered.

I do not think that Mr. Carroll is correct. The bill contains a “catch-all” provision that prohibits harassment, intimidation, or bullying on the basis of a “distinguishing characteristic.” There are many characteristics that distinguishes one group from another. The bill does not specifically identify “nerds,” “goths,” “emo,” “metalheads,” or “jocks.” It would be impossible to list every single type of subculture, particularly when new subcultures are born every so often. Nonetheless, these groups will likely be protected under the “other distinguishing characteristic” provision. In any event, it would be very difficult to believe that these various subcultures wouldn’t be protected since it is a known fact that many members of these subcultures have been bullied and harassed in school.

In the Chatham Patch, Mr. Carroll criticized the bill because “Most of this bill is paperwork and reporting.

Based on my reading, the bill does contain paperwork and reporting; but I don’t think it would be overwhelming. It seems that the amount of paperwork is proportional to the number of incidences that occur. If school personnel are well trained and implement good anti-bullying programs, there will be fewer incidences and, consequently, a smaller amount of paperwork.

Those who voted for the bill obviously felt that some paperwork was a necessary evil to reduce the number of bullying-related incidences. I agree.

Finally, Mr. Carroll also said that the bill increases taxpayer liability by opening up schools and public institutions to lawsuits.

Here, I think Mr. Carroll may actually be on to something.

First, we know that there are already lawsuits against schools that are costing taxpayers an enormous amount of money. For example, there is an ongoing case involving a gay student (“J.C.”) who was harassed and bullied at a New Jersey high school. In that case, the school district faces a $10,000 fine, plus possible compensatory damages and injunctive relief. If the Anti-Bullying Bill of Rights becomes law, it is possible that school districts (and the taxpayers) will be able to save on costs associated with civil litigation brought upon by parents of children who have been bullied and harassed by their teachers and peers.

On the other hand, the New Jersey Anti-Bullying Bill of Rights is not necessarily without problems. The bill may contain language that attorneys and the courts perceive as vague and overbroad. As an practicing lawyer with many years of experience, Mr. Carroll has undoubtedly observed that certain provisions in the bill should be more specific and concrete. Thus, if Governor Christie signs this bill into law, there may be legal battles that the New Jersey legislature may not have anticipated when it drafted the bill — and to that extent, Mr. Carroll may be right in that the bill doesn’t necessarily reduce taxpayer liability.

In the next blog post, I will discuss one potential legal issue that the bill raises.

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