| NOTE: FOR THE TEXT OF NJ's FIRST ANTI-BULLYING LAW (2002), SEE BOTTOM OF THE PAGE. THE MORE RECENT LAWS (ON CYBERBULLYING, AND ON BULLYING) ARE JUST BELOW THIS NOTE (12/07, 8/07).
(2/08): Good discussion of developments in cyberbullying law and related school actions, provided by National School Boards Association:
NSBA Legal Clips cyberB 2-08
(12/07): New anti-bullying law in NJ! (which requires schools to post their anti-bullying policy on a website - a small matter but an omission of the existing law and one which will be helpful; and - most important - establishes a new state commission on bullying. The job of the commission is to advise the legislature on changes/improvements to existing anti-bullying law, and to spur a new statewide initiative on bullying which could provide meaningful expectations of and support for schools to address the issue effectively.
New NJ anti-bullying law
(8/07): New cyberbullying law, which essentially adds electronic bullying to the issues schools must address in their anti-bullying policies.
Cyberbullying law NJ
(3/07): There's been no time of staffing to update every page on the site, thus the delay in updating regularly. However, it's been a big year for legal issues: The BIGGEST news is the 2/07 unanimous (positive) NJ Supreme Court decision in the LW case; for details see the 'News/Events' page on this site (go to home page by clicking on the bullying circle at top left, then click at top of home page on 'New'). But also, in the past year, on 9/30/06, we conducted a training on bullying specifically for lawyers (about 50 in audience), and a follow-up project to train more, and to create a referral process for legal advocacy for bullied children and their families is currently underway.
(4/06): COALITION HANDOUT:
Legal Issues for Children with Special Needs
(2/06): Proposed new law in Connecticut - for mandatory reporting and a new ombudsman position - which may be a model for what's still needed in NJ. The law, if passed, would go into effect in CT in July 2006. Here's the law (and notice of a public hearing about it on 2/28):
Proposed new CT law on bullying
(2/06): 'lAW PROJECT' UPDATE:
Most available Coalition time/energy has gone into following up on the 12/7/05 Appellate Division decision on LW. Specifically, moving the Coalition's 'law project' forward has been the consuming focus. Working with lawyers from Coalition-involved organizations (Elizabeth Athos-Education Law Center; Jeanne Locicero-ACLU; Leisa-Anne Smith-NJ State Bar Foundation; Bear Atwood and Frank Vespa-Papaleo-NJ Division on Civil Rights, Hestor Agudosi-NJ Office of Bias Crime and Community Relations) and Jerry Tanenbaum - a private attorney, planning has advanced to establish a bullying-related training program for lawyers, to be followed by establishment of a mechanism for connecting such lawyers with families of bullied children and schools seeking legal advice (toward minimizing liability by strengthening approaches to bullying). SG attended the recent ICLE conferences on Family Law and School Law (at which Frank Vespa-Papaleo delivered a strong keynote address, focused on LW) and staffed an exhibitor's table, courtesy of ICLE. A package of materials, including Coalition handouts, a Law Journal article on the LW decision by Jerry Tanenbaum , an article comparing states' anti-bullying laws by Michael Greene and Randy Ross, and NJSBF material (courtesy of Leisa-Anne Smith) was given out. There was great interest at both conferences. Hundreds of the packages were given out to lawyers who stopped by the table, at least 50 conversations about bullying were conducted, and (most important) approximately 70 lawyers indicated a desire to be contacted about the training, which ICLE has agreed to sponsor - very much appreciated. The training will be conducted on a date in late Sept. or early Oct. A draft proposal for the training and its faculty has been favorably received, and the program will be well finalized and ready by the training date.
_________________________________________________________________
(12/05): APPELLATE DIVISION DECISION IN LW CASE:
As I understand it, this is a very positive, strongly reasoned decision which - most critically - affirms that the standards which apply to employers and adults in the workplace (NJ Law Against Discrimination) are to apply to children in schools. The implications - for NJ and nationally - are potentially very important - and helpful. See attached files for an analysis memo from NJ Division of Civil Rights Director Frank Vespa-Papaleo (whose courageous, groundbreaking decision in favor of LW was substantially validated by the Appellate decision) and the full case (47 pages, well worth reading):
NJ Division on Civil Rights memo re LW Appellate court decision
LW decision 12-7-05
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(10/05):
The LW appeal was heard before the appellate court on 10/3/05 at Rutgers Law School, with a packed house. The school district lawyer's central arguments seemed to be (1) that the district had used 'progressive discipline', responding to each incident as it occurred, with gradually escalating consequences for the bullying students, and that this was all that it could reasonably be expected to do, even if the bullying had continued, and (2) that LW was reportedly functioning well as a young adult, apparently meaning to imply that any damage from the bullying was limited. It seems very unclear what decision will be made, but the judges said we would hear very soon.
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(9/8/05): Item courtesy of Jeanne LoCicero, Staff Attorney, ACLU-NJ (material changed and added):
Oral argument in the LW appeal has been scheduled for October 3rd at 10:15 am. It will take place before a panel of Appellate Divison judges at the Rutgers Law School in Newark (123 Washingon Street). Gita Gutierrez, the ACLU-cooperating attorney (Gibbons Del Deo Dolan Griffinger & Vecchione) who prepared the amicus brief, has been granted time to make a short argument to the court about the issues raised in the brief. The public is welcome to attend. For those not aware of the case, L.W. v. Toms River Regional Schools Board of Education, it involves a student in the Toms River schools who was subjected to anti-gay peer harassment and bullying based on his perceived sexual orientation. As he progressed through school, the harassment increased in frequency and severity. He ultimately transferred to another school district. The Director of the New Jersey Division on Civil Rights (Frank Vespa-Papaleo) held that the New Jersey Law Against Discrimination protected L.W. from the harassment, using the same standard that applies to employment discrimination. In February 2005, the ACLU-NJ and other child advocates filed an amici curiae (friend-of-the-court) brief urging the Superior Court of New Jersey Appellate Division to extend anti-discrimination protections to school children subjected to bias-based bullying. Ms. Gutierrez' brief included a good review of the bullying-related literature and was developed with the help of a number of Coalition participating and other organizations (Association for Children of New Jersey, Education Law Center, the Gay Lesbian and Straight Education Network of Northern New Jersey, the National Conference for Community and Justice-NJ, New Jersey Family Voices, Roxbury Parents for Exceptional Children, and Statewide Parents Advocacy Network of New Jersey). If the decision is upheld, it has significant implications for NJ (and - as a model - nationally), strongly 'raising the bar' in terms of what parents of bullied children can expect of schools.
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(2/05): Notable legal developments
since our last update (11/04) include:
(1)
The amicus brief in the case of LW was
filed this week (see below for background
and a link to the brief. The brief is
a persuasive (one hopes) argument in favor
of the court's upholding of the courageous
and just decision in favor of LW (a child
who was severely bullied) by Frank Vespa-Papaleo,
NJ Division of Civil Rights Director (for
a link to the decision, scroll down this
page). The very well done brief includes
a good review of the bullying-related
literature, and was developed with the
help of a number of Coalition participating
organizations (as described below). If
the decision survives the appeal process,
it has significant implications for NJ,
strongly 'raising the bar' in terms of
what parents of bullied children can expect
of schools.
(2)
Barbara Buono, the legislator who wrote
and obtained passage of NJ's anti-bullying
law (with the help of legislative colleagues,
and GLSEN and other organizations) has
now proposed legislation which would extend
the focus of the existing law to 'cyberbullying'.
(3)
The pace of bullying-related lawsuits
by parents of bullied children throughout
the nation continues to rapidly rise.
(More
information will be provided at our 3/29
meeting.)
ADVOCATES
FILE BRIEF TO PROTECT
SCHOOL CHILDREN FROM BULLYING
For
Immediate Release -- February 8, 2005
Contact:
Jeanne Locicero, Staff Attorney (973)
642-2086
Newark,
NJ -- In a case that highlights the damaging
effects of bullying on school
children, the American Civil Liberties
Union of New Jersey and several
other child advocacy organizations filed
an amici curiae (friend-of-the-court)
brief this week urging the Superior Court
of New Jersey
Appellate Division to extend anti-discrimination
protections to
school
children subjected to bias-based bullying.
"Every
day schoolchildren are subjected to harassment
and bullying by classmates
that can cause enduring psychological,
social and physical harm," said
Gitanjali Gutierrez of Gibbons Del Deo
Dolan Griffinger & Vecchione, an ACLU-NJ
cooperating attorney who filed the brief
on behalf of the organizations.
"Children deserve the same protection
from harassment in their
schools as adults receive in places of
employment."
As
described in the brief, L.W., a student
in the Toms River schools, was subjected
to anti-gay peer harassment and bullying
based on his perceived sexual
orientation. As he progressed through
school, the harassment increased
in frequency and severity. He ultimately
transferred to another school
district. The Director of the New Jersey
Division on Civil Rights held
that the New Jersey Law Against Discrimination
protected L.W. from the harassment,
using the same standard that applies to
employment discrimination.
The
brief calls to the Court's attention the
negative impact that peer harassment
and bullying have on students and the
school environment, and urges
for New Jersey's school children to be
protected from discriminatory peer
harassment.
"Children
should not have to be afraid of going
to school for fear of being harassed
and parents should not have to worry that
their children will be subjected
to discrimination," said Deborah
Jacobs, Executive Director of the ACLU
of New Jersey.
The
other organizations on the brief are the
Association for Children of New Jersey,
Education Law Center, the Gay Lesbian
and Straight Education Network of
Northern New Jersey, the National Conference
for Community and Justice (NJ),
New Jersey Family Voices, Roxbury Parents
for Exceptional Children, and
Statewide Parents Advocacy Network of
New Jersey.
The
case is L.W. v. Toms River Regional Schools
Board of Education, A-7084-03T5,
on appeal from a final administrative
decision of the Director of
the New Jersey Division on Civil Rights.
A copy of the brief can be found when you click
here from the ACLU-NJ
website.
+++++++++++++++++++++++++++++++++++++++++++
Deborah
Jacobs
Executive
Director
American
Civil Liberties Union of New Jersey
P.O.
Box 750
Newark,
NJ 07101
t:
973 642 2086
f:
973 642 6523
www.aclu-nj.org
+++++++++++++++++++++++++++++++++++++++++++
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Friend of the Court Brief for LW
To:
NJ Coalition for Bullying Awareness and Prevention
From: ACLU of New Jersery
RE: Friend of the Court Brief
for LW
Date: November 9, 2004
The
ACLU-NJ, a member of the Coalition's Law Project, is
arranging for an amicus curiae (Friend of the Court)
brief to be submitted in support of the decision by
the Director of the Division of Civil Rights in LW
v. Toms River Regional Schools Board of Education,
the school bullying case.
The
main holding in the case is that the standard to be
applied in assessing the school's liability for
failing to stop student-on-student discriminatory
harassment under the NJ Law Against Discrimination
(LAD) is the same standard applied for LAD employment
discrimination cases. That means that the school
is liable if it should have known that a situation
existed which would make a reasonable student find the
school environment hostile. This is contentious
because, besides being a question of first impression,
it is now easier to hold a school liable under state
law than under federal law, which applies the
harder-to-establish standard under Title IX (requiring
deliberate indifference and the harassment to be so
severe and persistent as to deny the student of an
educational benefit). The Director did an excellent
job of explaining that the LAD simply provides a
different form and degree of protection from the
federal statute. (The decision is available when
you click
here.
The amicus curiae brief will be written with a
students' rights bent by the law firm of Gibbons Del
Deo. The brief would be heavily fact-based
focusing on the actual problem of school bullying and
its effects on kids - and then explaining why the
Director was correct in holding that the LAD provides
our children with as much right to be free from
discrimination in schools as their parents have to be
free from discrimination in the workplace, pointing
out the purpose behind the LAD and cases holding that
it should be read broadly so as to "eradicate the
cancer of discrimination."
Signing
on to the brief
We
are looking for appropriate organizations to sign on
to the brief. This would include students'
rights legal organizations, student or parent advocacy
groups, and perhaps school psychologists or educators
organizations. Please note that, depending on
how the brief is ultimately written, there is a slight
chance that it would be appropriate for the brief not
to include certain groups that want to sign on.
To
be a signatory organization, we would need a short
statement that explains (1) the mission or work that
your organization does generally and (2) its
particular interest in the issues presented in this
case.
If
your organization would like to sign on,
please email here Jeanne
LoCicero of the ACLU-NJ or call at
973-642-2086.
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__________________________________________________________________
Here
is the text of NJ's anti-bullying law:
Synopsis:
2002 New Jersey Laws, AB 1874, Requires
each school district to adopt a policy
prohibiting harassment, intimidation or
bullying on school property, at a school-sponsored
function or on a school bus. The policy
must include a definition of bullying
behavior, consequences for engaging in
such behavior, a procedure for investigation
of reports of such behavior, a statement
prohibiting retaliation or reprisal against
persons reporting bullying behavior and
consequences for making a false accusation.
Requires school employees, students or
volunteers to report any incidents of
bullying, intimidation and harassment
to appropriate school officials. Grants
immunity from any cause of action for
damages arising from a failure to remedy
the reported incident to persons reporting
these incidents.
--------------------------------------------------------------------------------
SENATE COMMITTEE SUBSTITUTE FOR SENATE,
Nos. 149 and 729
STATE OF NEW JERSEY
210th LEGISLATURE
ADOPTED MAY 30, 2002
Sponsored by: Senator BARBARA BUONO, District
18 (Middlesex); Senator DIANE ALLEN District
7 (Burlington and Camden); Senator ANTHONY
R. BUCCO, District 25 (Morris); Senator
ROBERT W. SINGER District 30 (Burlington,
Mercer, Monmouth and Ocean). Co-Sponsored
by: Senators Cafiero, Baer, Ciesla, Coniglio,
B.Smith, Turner, Vitale, Sweeney, Codey
and Palaia
SYNOPSIS - Requires school districts to
adopt harassment and bullying prevention
policies.
CURRENT VERSION OF TEXT
Substitute as adopted by the Senate Education
Committee.
(Sponsorship Updated As Of: 6/25/2002)
An Act concerning the adoption of harassment
and bullying prevention policies by public
school districts and supplementing chapter
37 of Title 18A of the New Jersey Statutes.
Be It Enacted by the Senate and General
Assembly of the State of New Jersey:
1. The Legislature finds and declares
that: a safe and civil environment in
school is necessary for students to learn
and achieve high academic standards; harassment,
intimidation or bullying, like other disruptive
or violent behaviors, is conduct that
disrupts both a student's ability to learn
and a school's ability to educate its
students in a safe environment; and since
students learn by example, school administrators,
faculty, staff, and volunteers should
be commended for demonstrating appropriate
behavior, treating others with civility
and respect, and refusing to tolerate
harassment, intimidation or bullying.
2. As used in this act:
"Harassment, intimidation or bullying"
means any gesture or written, verbal or
physical act 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 handicap, 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 harming a student or damaging the student's
property, or placing a student in reasonable
fear of harm to his person or damage to
his property; or
b. has the effect of insulting or demeaning
any student or group of students in such
a way as to cause substantial disruption
in, or substantial interference with,
the orderly operation of the school.
3. a. Each school district shall adopt
a policy prohibiting harassment, intimidation
or bullying on school property, at a school-sponsored
function or on a school bus. The school
district shall attempt to adopt the policy
through a process that includes representation
of parents or guardians, school employees,
volunteers, students, administrators,
and community representatives.
b. A school district shall have local
control over the content of the policy,
except that the policy shall contain,
at a minimum, the following components:
(1) a statement prohibiting harassment,
intimidation or bullying of a student;
(2) a definition of harassment, intimidation
or bullying no less inclusive than that
set forth in section 2 of this act;
(3) a description of the type of behavior
expected from each student;
(4) consequences and appropriate remedial
action for a person who commits an act
of harassment, intimidation or bullying;
(5) a procedure for reporting an act of
harassment, intimidation or bullying,
including a provision that permits a person
to report an act of harassment, intimidation
or bullying anonymously; however, this
shall not be construed to permit formal
disciplinary action solely on the basis
of an anonymous report;
(6) a procedure for prompt investigation
of reports of violations and complaints,
identifying either the principal or the
principal's designee as the person responsible
for the investigation;
(7) the range of ways in which a school
will respond once an incident of harassment,
intimidation or bullying is identified;
(8) a statement that prohibits reprisal
or retaliation against any person who
reports an act of harassment, intimidation
or bullying and the consequence and appropriate
remedial action for a person who engages
in reprisal or retaliation;
(9) consequences and appropriate remedial
action for a person found to have falsely
accused another as a means of retaliation
or as a means of harassment, intimidation
or bullying; and
(10) a statement of how the policy is
to be publicized, including notice that
the policy applies to participation in
school-sponsored functions.
c. A school district shall adopt a policy
and transmit a copy of its policy to the
appropriate county superintendent of schools
by September 1, 2003.
d. To assist school districts in developing
policies for the prevention of harassment,
intimidation or bullying, the Commissioner
of Education shall develop a model policy
applicable to grades kindergarten through
12. This model policy shall be issued
no later than December 1, 2002.
e. Notice of the school district's policy
shall appear in any publication of the
school district that sets forth the comprehensive
rules, procedures and standards of conduct
for schools within the school district,
and in any student handbook.
4. a. A school employee, student or volunteer
shall not engage in reprisal, retaliation
or false accusation against a victim,
witness or one with reliable information
about an act of harassment, intimidation
or bullying.
b. A school employee, student or volunteer
who has witnessed, or has reliable information
that a student has been subject to, harassment,
intimidation or bullying shall report
the incident to the appropriate school
official designated by the school district's
policy.
c. A school employee who promptly reports
an incident of harassment, intimidation
or bullying, to the appropriate school
official designated by the school district's
policy, and who makes this report in compliance
with the procedures in the district's
policy, is immune from a cause of action
for damages arising from any failure to
remedy the reported incident.
5. a. Schools and school districts are
encouraged to establish bullying prevention
programs, and other initiatives involving
school staff, students, administrators,
volunteers, parents, law enforcement and
community members.
b. To the extent funds are appropriated
for these purposes, a school district
shall: (1) provide training on the school
district's harassment, intimidation or
bullying policies to school employees
and volunteers who have significant contact
with students; and (2) develop a process
for discussing the district's harassment,
intimidation or bullying policy with students.
c. Information regarding the school district
policy against harassment, intimidation
or bullying shall be incorporated into
a school's employee training program.
6. This act shall not be interpreted to
prevent a victim from seeking redress
under any other available law either civil
or criminal. This act does not create
or alter any tort liability.
7. A school district that incurs additional
costs due to the implementation of the
provisions of this act shall apply to
the Commissioner of Education for reimbursement.
8. This act shall take effect immediately.
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