Harassment, intimidation and bullying investigations in schools

A primer

By Kaitlyn Dunphy, Esq.

Over a decade ago, New Jersey enacted the Anti-Bullying Bill of Rights Act, designed to help prevent and address harassment, intimidation and bullying (HIB) in schools. The act requires school districts to adopt policies that implement procedures to report and investigate incidents of harassment, intimidation, and bullying in schools, including at school-sponsored functions, on school buses, and if there is substantial disruption to the school, even conduct that occurs off school grounds. Those policies are required to be made available on the district’s website. 

In order for an incident to be considered HIB, the following must be present: 

  •   A reasonable perception of the HIB being motivated either by any actual or perceived characteristic; and 
  •   Substantial disruption or interference with the orderly operation of the school or the rights of other students; and 
  •   One or more of the following: 

         – A reasonable person should know the incident, 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 their person or damage to their property; or 

         – Has the effect of insulting or demeaning any student or group of students; or 

         – Creates 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. 

 The examples of actual or perceived characteristics included in the law are race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability. However, any distinguishing characteristic can meet this criterion. 

HIB policies provide a procedure for the reporting of alleged HIB incidents. School staff are required to verbally report to the principal any potential HIBs that they witnessed or received reliable information about on the same day the incident occurs, or when they receive that information. The report should be made in writing within two days of the verbal report. 

Once a report of a potential HIB is received, this triggers the review and investigation procedure contained in the district policy. The policy can give the principal or their designee the discretion to decline to open an investigation if the allegations, if true, do not rise to the level of a HIB. If the allegations would meet the threshold definition of HIB, or if the district policy does not include this initial review, an investigation will be initiated. Once an investigation is open, it must be undertaken promptly, within one school day of the report, and be completed no later than 10 school days from the date of the written report. 

The investigation is led by an anti-bullying specialist (ABS). An ABS is appointed by the principal, and must be a school counselor, school psychologist, or other staff member employed by the school who is trained to be an ABS. An ABS should avoid any conflicts of interest in their investigation, including when they are asked to investigate allegations against a fellow association member in their bargaining unit. Locals should advocate for avoidance of that conflict. A principal is permitted to appoint more than one ABS, so someone outside the bargaining unit could be appointed to investigate to avoid a conflict of interest. 

The chief school administrator is required to report the results of the investigation to the board, including information on any services provided, training established, discipline imposed, or other recommended action. Within five school days after the board receives its report, the alleged offenders and alleged victims, or their parents or guardians if they are minors, are entitled to receive certain information about the investigation. The act requires that they are notified of the nature of the investigation, whether evidence of HIB was found, and if so, what action was taken—whether discipline was imposed, or services were provided. 

The board may hold, and a parent may request, a hearing before the board in executive session to review the HIB report. At the next board meeting, the board must issue a written decision affirming, rejecting or modifying the chief school administrator’s findings. Once the board issues its written decision, there are certain grounds on which the board’s decisions may be appealed to the commissioner of education. 

Kaitlyn Dunphy is an associate director of NJEA Legal Services and Member Rights in the NJEA Executive Office. She can be reached at kdunphy@njea.org.