While all the focus has been on incidents between students, New Jersey’s new anti-bullying law has a little-known flipside: It also applies to how adults treat children.
A new legal decision by state Education Commissioner Chris Cerf and at least two recent tenure cases invoked the new Anti-Bullying Bill of Rights in seeking disciplinary actions against teachers.
In the two tenure cases, school districts accused teachers of bullying students, as defined under the law. It turned out that the allegations were not deciding factors in either case.
But last week, Cerf reversed an administrative law ruling and demanded that a Cumberland County school district show that it had followed the law’s strict requirements for investigating a family’s complaint that a teacher had bullied their child.
The fact that teachers are covered under the law is not new. The prime Assembly sponsor of the law said it was never her intent for the law to apply only to student-on-student bullying.
The state’s guidelines issued to districts also clearly state that staff-on-student bullying will be treated the same as student-on-student incidents. Staff-on-staff bullying is not covered by the law.
“Certainly our primary focus in the beginning was on student bullying,” said state Assemblywoman Valerie Vainieri Huttle (D-Bergen). “It’s why we wrote the law.”
“But as we are part of the ongoing effort in dealing with its implementation and the things we hear, underlying in all this is improving the entire culture and climate of the community,” she said in an interview yesterday. “And certainly teachers are part of that community.”
The distinction has nonetheless posed some challenges for districts and teachers as the cases involving adults have begun to emerge.
For instance, the law makes it clear that in cases of student bullying, the school’s anti-bullying specialist — often a counselor – must investigate the incident within two days. The law lays out an extensive procedure and timeline for investigating bullying incidents, including when a school board must decide on whether to take any disciplinary action.
But lawyers and others who have been involved with such cases say that having peers investigating each other is problematic — that role has usually had to shift to someone in a supervisory role, such as a principal or superintendent.
In addition, the strict timelines of the law have also proven more malleable, and there have been compromises elsewhere.
For instance, while a teacher facing normal disciplinary actions has a right to a public hearing before the local board of education, a bullying case involving a student is kept behind closed doors, according to guidelines from the state’s school boards association.
A teacher’s rights don’t much change much otherwise, said an attorney with the New Jersey Education Association, the statewide teachers union.
“Just as a teacher is entitled certain rights around grievances and confidentiality, the same applies here,” said Michael Damm, an attorney with Selikoff & Cohen who is contracted by the NJEA.
“And while it does create an additional path (to file a complaint against a teacher), sometimes that can be a good thing in working the matter out with a district,” he said.
The latest case in which Cerf became involved was an intriguing one. A Deerfield Township kindergarten teacher was accused of humiliating a student by allegedly making the student eat a bagel out of the trash.
The students’ parents filed the complaint, contending it was a bullying incident under the law, which prohibits harassment and intimidation on the basis of appearance, race or other distinguishing characteristic. The child is African-American, according to the legal papers.
The school district dismissed the complaint as unfounded, and an administrative law judged upheld the dismissal, citing the fact that child welfare investigators also found no abuse or neglect.
Damm, the attorney working with the NJEA, also contended the claim was unfounded and the teacher never forced the student to do anything.
But Cerf said in a decision filed last week that he saw no record of the district following the proper procedures under the law in investigating the claim, and he remanded the case back to administrative court.
“The (administrative judge’s) analysis fails to recognize that … completion of an internal HIB investigation is not discretionary,” Cerf wrote.
“It is not clear on this record whether (the district) undertook any internal investigatory actions, or whether any such investigation complied with the requirements of the Act,” he continued.
School board and union attorneys said Cerf’s decision adds some of the first legal precedent reinforcing that the law applies to teachers and other staff.
“The law was always intended to protect kids, but the statute never explicitly addressed who the perpetrator could be,” said Jonathan Busch, an attorney with Schwartz, Simon, Edelstein & Celso.
Huttle, the state assemblywoman, said she hopes other districts will take notice of the case.
She cited other high-profile cases across the country of abusive teachers and coaches, including the recent one involving Rutgers’ former basketball coach, and said the problem is especially serious given that adults are the authority figures in schools.
“The law should certainly apply to them,” she said. “They are the ones who are supposed to be settling the example.”