SHOULD IMPLEMENT ANTI-BULLYING POLICIES
By Michael Farhi, Esq.
In 2011, New Jersey enacted the Anti-Bullying Bill of Rights (ABR). The ABR was created in a state-wide effort to combat harassment, intimidation, and bullying, also known as HIB, in public schools. The goal of ABR was to ensure that schools implemented comprehensive policies and procedures for dealing with incidents of HIB. Utilizing a standard process for dealing with incidents of HIB, schools can provide a safer, more respectful environment, giving students a clear space to learn effectively excel and allowing teachers to educate effectively. Public and charter schools that fail to follow the ABR can be sued.
The ABR defines bullying as “any gesture, any written, verbal or physical act, or any electronic communication that is reasonably perceived as being motivated by either an actual or perceived characteristic.” These characteristics can include race, religion, national origin, color, gender, gender identity and expression, sexual orientation, color, ancestry, mental, physical, or sensory disability, or any other distinguishing characteristic.
Perhaps surprisingly, private schools and religious schools are not legally required to abide by the ABR. Other than private schools that have been approved by New Jersey State for students with disabilities, all other private schools and religious schools do not have to follow the ABR.
Even though private schools and religious schools are not required to abide by the ABR, such schools are not immune from lawsuits and cannot simply ignore the ABR. To the contrary, private schools can be sued for incidents of HIB under several legal theories, including negligence, negligent hiring, breach of contract, consumer fraud, intentional infliction of emotional distress and discrimination claims.
Unlike private schools, religious schools are immune from negligence claims under New Jersey’s Charitable Immunity Act, which provides immunity to nonprofit organizations that “operate exclusively for religious, charitable, educational, or hospital purposes.” However, that Act does not protect religious schools from claims of breach of contract, negligent hiring, consumer fraud, intentional infliction of emotional distress and discrimination relating to incidents of HIB.
Indeed, by failing to implement policies that address HIB, private schools and religious schools actually make themselves more vulnerable to a lawsuit, at a time when enrollment in private school and religious school is on the rise.
According to a number of surveys from the National Center for Education Statistics, ProPublica, and the Cato Institute, recent years have shown a marketed increase in enrollment in private schools and religious schools as many parents are looking for alternative options to public schools. Accordingly, private schools and religious schools, now more than ever, must proactively take steps to provide a safe and respectful place for children to learn and protect the school itself from suits by implementing policies that address HIB and protect against lawsuits. This especially so in New Jersey, where enrollment in private school is higher than the national average.
Therefore, taking steps to implement policies that address HIB can limit the school’s liability in lawsuits and protect its reputation as well. Some ways that private schools and religious schools can do this are by doing the following:
- Draft a comprehensive anti-bullying policy for the school. The ABR provides a great framework for a private school or religious school to use when drafting its anti-bullying policy;
- Draft a school handbook for parents and students that outlines the school’s policies including the anti-bullying policy.
- Implement annual training sessions for teachers and staff at the school as well as anyone else involved in the school district on HIB including how to spot it, how to handle it, and the obligations to report it and the procedures for reporting it;
- Create a standard operating procedure and system for documenting all incidents of HIB that have been reported and the steps taken by the school;
- Establish a standard operating procedure for conducting investigations into incidents of HIB that are well-documented including how interviews are conducted, communications with parents, and what safety measures may need to be put in place as a result of the HIB;
- Implement communication channels for schools to communicate with parents regarding incidents of HIB and document all communications that occur; and
- Practice due diligence when it comes to the anti-bullying policies that have been implemented by continuing to review them annually to ensure continued effectiveness and make changes as needed to address any new issues that arise as types of HIB can evolve over time whether it be physical incidents or incidents that occur online.
By implementing these suggestions, private schools and religious schools will not only provide a safe and respectful environment for students to learn but will also provide parents with piece of mind that their children are safe in the schools’ care. Implementing these policies will also ensure schools’ protection from lawsuits and preserve their reputation.