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Cerf Upholds Bullying Charges in First Cases Under Tough New Law

John Mooney | February 1, 2013

State education chief rejects parents’ appeals in East Brunswick, Tenafly incidents.

One involved a East Brunswick sixth-grader who called out a classmate in gym for “dancing like a girl.” The other involved a fourth-grader in Tenafly who embarrassed a classmate for having head lice.

In the first legal cases to go the distance under New Jersey’s tough new law, both episodes have been upheld by the state as incidents of bullying and harassment.

Parents of the accused students had appealed the initial findings by the local districts. But state Education Commissioner Chris Cerf this month upheld the schools’ determinations in each instance, the first such rulings by the commissioner under the state’s Anti-Bullying Bill of Rights.

Legal experts said there will surely be more such cases to come.

“It takes a while for them to work through the system, but you’ll certainly see more,” said Phil Stern, an attorney with Adams Stern Gutierrez & Lattiboudere in Newark, who represents school boards in these and other cases.

Stern said he was not surprised by the appeals, each focusing more on the findings than on any particular penalty. Nor was he surprised by the outcomes, with Cerf largely required only to determine if the process was properly followed.

“You will have a super uphill battle in one of these cases by the time you come before the commissioner,” he said.

The 2011 law requires that schools follow specific procedures and timelines in all cases of even alleged bullying, stipulating when investigations must be launched and resolved with formal findings.

The new law has roiled school districts since its enactment, with more than 13,000 incidents reported by schools in the law’s first year. A state task force monitoring the law’s implementation this week praised the increased awareness of bullying in schools, but also recommended more flexibility be given principals to determine what cases are to be formally investigated.

But that was long after each of these first cases moved through the process, two cases that highlighted some of the tensions that have arisen surrounding the law and its aftermath.

In East Brunswick, for instance, the incident took place in November 2011, when the accused child insulted his classmate by calling him “gay” and saying he “danced like a girl,” according to the case’s legal record.

The school investigated the claim, interviewing the students and witnesses, and found that under the district’s anti-bullying policies -- now strengthened under the state’s new law -- it warranted a finding of bullying. The boy was given three days of detention.

The parents appealed to the state, demanding that the finding be reversed and damages paid. They also asked that the accusing student be given three days of detention.

The case went to an administrative law judge, who found that the case had fallen under the definition as laid out in the new law as “verbal acts motivated by distinguishing characteristics, i.e. gender and sexual orientation.”

“A.C. [the accused] is not a chronic troublemaker, but his actions were hurtful and unkind,” read a synopsis of Cerf’s decision. “The school district’s response of assigning him to detention was designed to redirect A.C.’s behavior in a manner that was consistent with his age and that recognized this was a first offense.”

Cerf, who is an attorney, has the responsibility in these matters to only determine that the local agency had not acted in an arbitrary and capricious manner, and he did so.

“As [the new law] directs that each school directs that each school district’s anti-bullying policy shall contain ‘consequences and appropriate remedial action for a person who commits an act of harassment, intimidation or bullying,’ [the board] did not act arbitrarily, capriciously or unreasonably in imposing upon A.C. three days of detention as discipline for his conduct,” Cerf wrote.

The Tenafly case followed a similar pattern. The incident took place in September 2011. The accused boy called out a girl who had dyed her hair and said she did so because she had lice.

Following an investigation, a finding of bullying was reached, and the boy – identified by his initials L.L. -- was given a school assignment to promote greater sensitivity to others. His parents were notified in writing, but nothing else went into his record.

The parents appealed, demanding the school formally apologize and pay the family all legal fees, in addition to $50,000 for emotional damages.

The administrative law judge in this case again found in favor of the district, saying the boy’s comments “constituted HIB as defined by the law, and interfered with the rights of another student.”

The girl had, in fact, had head lice and the boy claimed he did not intend to embarrass her. But Cerf upheld that board’s determination that the boy “should have realized that pointing out his classmate’s problem would hurt her feelings,” according to the synopsis.

“The petitioners have failed to sustain their burden of establishing that the board had acted arbitrarily, capriciously or unreasonably, in finding that the conduct of L.L. in this matter constituted an instance of harassment, intimidation or bullying” Cerf wrote.

Local school board lawyers said given the strength of the new law, the appeals from parents are sure to become more common – although not all may want to take it all the way to the state commissioner.

“I actually expected more,” said Jonathan Busch of Schwartz Simon Edelstein & Celso in Whippany, whose office represents school boards. “And in the beginning there were more, but they now seem to be dropped off.

“Once the procedures have been in place, districts seem to be handling this with more confidence and knowledge,” he said.

But Stern, the Newark lawyer, said many parents still fear such a bullying finding will be black mark on their child’s academic record, and even if there is no real penalty, they will go to great lengths to remove it.

“I sympathize with their predicament,” he said, “although I really don’t think whether a child goes to college will be much affected by this.”

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