Refining and Revising Anti-Bullying Law Easier Said Than Done

Meir Rinde | May 3, 2016 | Education
One of the more unpopular changes would give school principals the discretion to decide what constitute bullying and what is just bad behavior

Five years after the state enacted its controversial anti-bullying law, the long process of fine tuning the legislation continues. Perhaps understandably, the arguments and counterarguments that endeavor has sparked off are reminiscent of the sometimes-heated debates that greeted the original measure.

The state Board of Education this week begins taking testimony on a set of proposed regulatory changes, including one that would give principals authority to decide whether a fight or other incident should be investigated as bullying, or instead handled internally under a school’s code of conduct.

The state Anti-Bullying Task Force that recommended the new regulation saying it will reduce the high number of unwarranted investigations, freeing up school counselors to make better use of their time to help address conflicts. The state Department of Education and the law’s prime Assembly sponsor also favor the change.

In fact, the head of the task force has argued that the recommendation should be made mandatory in all schools.

Meanwhile, a leader in the state’s anti-bullying movement says the change could allow school administrators to pay less attention to difficulties that vulnerable children are facing, something the law was meant to prevent.

The recommendation is one of several in the final report of the seven-member Anti-Bullying Task Force, which Gov. Chris Christie created in 2012. The report was released in January and last month the DOE responded by proposing rule changes, including one on the principal’s role and another on power imbalances in bullying situations. The agency has also proposed new language in other sections, including on bullying in out-of-district schools for children with special needs.

The state’s Anti-Bullying Bill of Rights (ABR) became law in 2011. In the following school year there were 12,024 confirmed incidents of harassment, intimidation, or bullying (HIB). That number dropped sharply in subsequent years, falling to 6,664 in 2014-2015, according to report to the legislature from Education Commissioner David Hespe. That figure amounted to only 36 percent of the more than 18,000 bullying investigations that year.

The task force wants to reduce the overreporting of incidents that anti-bullying specialists spend time investigating, only to find that they don’t meet the criteria for HIB, said Patricia Wright, the chair of the panel and executive director of the New Jersey Principals and Supervisors Association.

“When anyone uses the term ‘bullying’, it requires an investigation,” Wright said. “If the facts as recorded are not going to reach the level of an HIB incident, why are we calling on the anti-bullying specialist, who by the way, is often the school counselor or social worker? We want schools to be able to use those resources more effectively, to target those cases that we know really need this full investigation.”

The task force created a checklist for principals to use, in consultation with anti-bullying specialists, to quickly determine whether an incident meets the legal definition of an HIB that requires investigation, as opposed to a “normal social conflict” incident that does not involve bullying and can be handled through the school’s code of conduct, she said.

“Somebody sees a student hit another student on the playground. They may say, ‘I saw a bullying incident,’ because it was aggressive behavior,” Wright said. “When a principal gets this in his office, he knows that these two students are normally friends, there was a game, one got mad at the other one and hit him. It’s inappropriate, and we can give consequences based on the other code of conduct, but it shouldn’t necessarily trigger a full-scale, 10-day investigation by an anti-bullying specialist who really has other roles too.”

At last month’s State Board of Education meeting, DOE assistant commissioner Susan Martz said the agency wants to create a rule allowing school boards to give their principals the authority to divert complaints that don’t qualify as HIB. Creating such policies would be left to the school boards. Counter to the task force recommendation, the agency would not require use of a specific checklist because the ABR law does not include such a list, Martz said.

Wright said she will testify before the state board on Wednesday and argue that the checklist requirement does conform with the law, since the law requires more than just use of the word “bullying” to prove HIB. She noted that Assemblywoman Valerie Huttle (D-Bergen), one of the law’s prime sponsors, wrote a letter saying that the task force recommendation is “fully consistent with my legislative intent.”

The DOE should also make the rule immediately apply to all schools, since the ABR generally was designed to give all students the same anti-bullying protections, she said.

“We hope we could make it more uniform and not depend on individual board policies to address this issue,” she said.

Wright said the task force’s recommendations were developed with great care and years of input from teachers, administrators, anti-bullying specialists, and other school personnel who deal with incidents of aggression and school-climate issues on a daily basis.

But psychologist Stuart Green, director of the NJ Coalition for Bullying Awareness and chairman of the state’s former Commission on Bullying in Schools, argued the panel was fundamentally flawed since it paid little attention to the concerns of advocacy groups who speak for victimized students. That focus is reflected in the move to give principals what he called “discretion” in selecting incidents to be investigated, he said.

“The majority of the task force, from my point of view, functioned in a way that was overly attentive to the needs and interests of the institutions — the schools themselves, the educational associations, and other entities — that do not adequately address the needs of hurt children and their families, and the minority populations in the state that are involved with the New Jersey schools,” Green said.

“From an advocate’s point of view, this issue of principal and school leader discretion is one of the problems that we needed to address in the first place, and one of the reasons we developed the law. Principals and school leaders have always had too much discretion, the result of which was to not pay adequate attention to the social and emotional needs and violence experiences of vulnerable children in their care,” he said.

He criticized on similar grounds another new rule that would set a 45-day time limit for parents to appeal the findings of bullying investigations, saying it restricted parents’ ability to navigate the process in the name of aiding administrators. Wright defended the proposed 45-day rule, arguing that it doesn’t make sense to hear appeals years after an incident had occurred. There is currently no time limit, she said.

There was more agreement on another proposed change. It would add language defining bullying as behavior that may involve “a real or perceived power imbalance,” in relation to characteristics such as physical strength, popularity, or social standing. The change is important because it will help school staff distinguish bullying from normal conflict and remind them to consider the perpetrator’s motivations, not only the victim’s characteristics, Wright said.

Yet despite that useful addition, Green said that on the whole he considered the three-year task force process a missed opportunity. The state should instead have focused on improving hurtful and unsafe environments in schools by making districts become more involved with community groups that represent victimized kids, like organizations for LGBT kids, Muslims, and people with Tourette syndrome, he said.

“There are so many different areas the task force could have gone in, in terms of meaningfully strengthening requirements for what schools will do, and instead they did some essentially bureaucratic things,” he said. “There are still kids sitting alone in lunchrooms their entire school years. What are we doing about that?”

The DOE’s proposed changes do not encompass all the recommendations in the task force report. The report, for example, renews a request for millions in funding for programs to improve school climate. The state initially allotted $1 million to the Bullying Prevention Fund in 2013 but those funds were expended and not replaced. Schools have requested a combined $9 million in funding for programs.

The State Board of Education will take public testimony on the proposed changes this Wednesday and at additional sessions over a period of up to two months. The changes may be revised before they are finally adopted by the board.