Governor Signs Bullying Law Changes P.L. 2021, Chapter 338
By Debra Bradley, Esq.
NJPSA Director of Government Relations
During the past two-year legislative session, the State Legislature considered legislation that proposed to significantly modify how cases of harassment, intimidation and bullying (HIB) would be investigated in our schools, modifying provisions of the Anti-bullying Bill of Rights Act, P.L. 2002, c. 83 (C.18A:37-13 et seq.) hereafter ABR. The bills, S-1790 (Pennacchio, Diegnan)/A-1662 (Quijano, Jimenez) were passed by both houses on December 20, 2021 after many months of negotiations with NJPSA and our colleagues in the education community. Governor Murphy signed Chapter 338 into law on January 10, 2021. The new law has two effective dates. The provisions related to the criminal code, which increase fines for crimes of cyber-harassment, go into effect immediately. The remaining provisions of the law, concerning school investigations of HIB, go into effect on July 9, 2022.
The legislation was spurred by the tragic suicide of Mallory Grossman, a 12-year-old student from Rockaway Township. As initially drafted, the legislation sought to remove HIB investigations from schools to the law enforcement arena, to engage Executive County Superintendents in the process, to remove principal’s ability to make preliminary determinations that alleged behavior did not meet the legal HIB definition, and to make punishment not intervention the response to HIB behavior. NJPSA was a strong advocate against the initial draft and negotiated important amendments that led to the final language of Chapter 338.
So how does this law change what you currently do when investigating allegations of HIB?
The following are the major changes in the statute, many of which must incorporated as mandatory components of your school district’s HIB policy:
- Changes to Criminal Code, C.2C:33-4.1
The statute increases the fines to a parent or guardian imposed by a court for cyber-harassment (4th degree crime) where their minor child is adjudicated delinquent of this crime and the court imposes a condition of a class/training and the parent fails to comply with the court-ordered condition. Additionally, parents/guardians with legal custody of minors who demonstrate willful or wanton disregard in the exercise of the supervision and control of the conduct of a minor adjudicated delinquent of cyber-harassment may be liable under a civil action.
- Preliminary Determinations
If a school district policy permits a preliminary determination to be made on whether a reported incident or complain is a report outside the scope of the legal definition of HIB, the superintendent must annually provide information to the board of education on the number of times the district made such a determination.
Currently, if a district policy permits, a principal can make such a preliminary determination and the law does not change that. Initial versions sought to do so by giving that authority to SROs in a building. Instead, the final version of Chapter 338 maintains a principal’s authority to make a preliminary determination that an allegation, if true, does not meet the legal definition of HIB although it may be a violation of a district’s code of conduct or warrant other district intervention. Chapter 338 requires however that when a principal does so, he/she must report this determination to the superintendent. The superintendent may require the principal to conduct an investigation of the incident if he/she determines that an investigation is necessary because he/she believes the incident is within the scope of the legal definition of HIB. NJPSA advocated for language that the superintendent must put this notification to the principal in writing since this notification now triggers the 10-day investigatory timelines of the law.
- Progressive Consequences for HIB Spelled Out in District Policy
The new law details that local district policies must include language that spells out the following consequences and appropriate remedial action for a person who commits an act of harassment, intimidation or bullying:
- For a first and second act of HIB, a copy of the results of the investigation shall be placed in the student’s record and the student may be subject to remedial actions including the provision of counseling or behavioral intervention services, or discipline, or both, as determined by the principal in consultation with appropriate school staff;
- For a third HIB act by a student and each subsequent act, a copy of the investigation report will be placed in the student’s record, the principal, in consultation with appropriate staff, shall develop an individual student intervention plan which the superintendent or his/her designee shall approve, which may include remedial actions as noted above, discipline and may require the student, accompanied by a parent or guardian to complete a class related to reducing HIB behavior.
(Note: This is at the discretion of the principal and superintendent. NJPSA was able to negotiate these important changes from original bill provisions that would have had law enforcement investigate HIB complaints and Executive County Superintendents issue disciplinary actions to student.)
- The Role of Law Enforcement
Law enforcement will play no role in the investigation of HIB cases unless criminal activity is suspected. The superintendent and principal shall consult law enforcement pursuant to the provisions of the Uniform Memorandum of Understanding between Law Enforcement and the Schools as is currently the case.
- Clarification of Principal Record Keeping and Reports
The statute seeks to clarify the reporting requirements for HIB cases, but may in fact confuse them! The law is unchanged in terms of all suspected acts of HIB being reported verbally to the school principal on the same day that the school employee or contracted service provider witnessed or received reliable information regarding an incident
The principal must inform the parents/guardians of all students involved and may discuss the availability of counseling and intervention services as appropriate. The principal must keep a written record of the date, time and manner of his/her notification to the parents/guardians.
- DOE Numbered Written Report Form is Mandatory
The law continues the language that all HIB acts must be reported in writing to the school principal within two school days of when the employee/contracted employee witnessed or received reliable information about the alleged incident. What is new is that the written report must be on a numbered form develop by the NJDOE. The principal must promptly submit the form to the superintendent, even if the principal preliminarily determines (if board policy permits) that the alleged incident does not meet the HIB definition if it is true. This means that this written NJDOE numbered report must be filled out in all cases and sent to the superintendent.
Further, this written DOE numbered report form must be kept on file at the school, but shall not be included in any student record, unless the incident results in disciplinary action or is otherwise required to be contained in a student’s record under State or federal law. NJPSA successfully fought off efforts to have the board review this report due to the need for confidentiality in investigations, to protect students on this sensitive issue and to protect the integrity of the investigation. Ultimately, at the conclusion of the investigation, if a board hearing is requested by a parent/guardian of the results of the investigation, the board will confidentially receive a redacted copy of this report that removes all student identification information and must be kept confidential.
- Parent Reporting Form Required
While the new law talks about confidentially reporting HIB, this new law did NOT change the provision in current law, at 18A:37-15b(5) which requires districts to have:
a procedure for reporting an act of harassment, intimidation or bullying including a provision that permits a person to report an act of harassment, intimidation or bullying anonymously; however, this shall not be construed to permit formal disciplinary action solely on the basis of an anonymous report.
- Investigation Close and Appeals
At the end of an investigation of an incident of HIB, the superintendent must be notified of the results within two days under existing law. Chapter 338 maintains current law provision of potential superintendent actions of intervention services, student discipline, training programs on HIB reduction and/or school climate enhancement, and counseling but adds the additional action of seeking additional information. Parents continue to have the right to request a board hearing on the result of the investigation and to challenge the board’s decision in court under the provisions of the Anti-Bullying Bill of Rights, which remain unchanged.
- Requirement to Post Parents’ Guidance on ABR Document on School and District Websites
With a goal of better informing parents and raising awareness of bullying resources, all schools and districts must post the NJDOE document Guidance for Parents on the Anti-Bullying Bill of Rights Act (ABR) on their websites. The School Climate State Coordinator, a state level position within the NJDOE to guide both parents and districts on issues related to the ABR, will ensure that this document is updated and posted statewide.
- School Climate State Coordinator Position Created
With a goal of assisting both districts, school staff and parents, NJPSA proposed and the sponsors agreed to the creation of the position of a School Climate State Coordinator within the NJDOE. The State Coordinator will be bound by the rules of confidentiality in the exercise of his/her duties, is empowered to call upon other state agencies in the pursuit of his/her duties, and the contact information for the State Coordinator must be posted on the websites of schools, districts and the NJDOE. The duties and responsibilities of this position include:
- Identifying and disseminating research and resources, including professional development resources to promote best practices in student social-emotional learning and the development of a positive, supportive school climate in New Jersey schools;
- Disseminating information on the ABR, relevant provisions of the Law Against Discrimination, P.L. 1945, c. 169 (C. 10:5-1 et seq.) and other state and federal laws addressing harassment, intimidation and bullying;
- Reviewing, analyzing and reporting HIB data collected to explore patterns and develop guidance and strategies for schools, parents, staff and agencies as appropriate;
- Assisting the NJDOE in creating public information programs on HIB, HIB prevention , resources and the role of the State Coordinator;
- Working collaboratively with law enforcement, the NJDOE, Division on Civil Rights and other state agencies on an option training program for districts on the impact of HIB on students and training on the appropriate role of law enforcement on issues related to HIB in schools; and
- Providing an annual report to the Commissioner of Education, State Board of Education, and Legislature on the activities of the coordinator and his/her recommendations.
With this law going into effect in July, the NJPSA Government Relations team and our professional learning programs at FEA and LEGAL ONE will keep you informed of all new developments as you prepare to implement these changes.