What is bullying? What happens if an incident occurs and the school finds it isn’t considered bullying according to state law? What can parents expect when a Harassment, Intimidation and Bullying (HIB) investigation is started?
To address some of those questions and the frustrations felt by parents and the community, the Cherry Hill school district held a town hall on April 24.
Legal One Director for New Jersey Principals and Supervisors Association David Nash began the event with a presentation that reviewed the legal definition of bullying, harassment and intimidation and explored some of the law’s complexities.
HIB is “a gesture, act or communication reasonably perceived to be motivated by any actual or perceived characteristic: race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, mental, physical or sensory disability or any other distinguishing characteristic. The motivation needs to be defined.
An HIB incident has to cause a substantial disruption defined as one of three things: a reasonable fear of physical/emotional harm to a student or damage to a student’s property; insulting and demeaning any student or group and creating a hostile educational environment by interfering with a student’s education; or severely or pervasively causing a student physical or emotional harm.
Some of the frustration about HIB results from the difference between what people may typically think of as bullying and the actual legal definition.
“Sometimes one student will target another student,” Nash explained. “You might have an issue that arises where one student physically harms another student. Obviously that would be a code-of-conduct violation; that would be something that we would take very seriously that the school district would address.
“(But) we can’t call it bullying under the New Jersey law unless we can determine what motivated that behavior and the characteristic reasonably perceived as motivating that behavior?”
Nash described cases where code-of-conduct violations have occurred with bad behavior, but due to the victimized student’s resilience and the lack of a substantial disruption to that victim, the incident is not considered bullying by law. Likewise, even if the intent to bully is not there, if substantial disruption occurs, the incident may still be considered bullying by law.
Nash also gave an overview of steps in the HIB investigation process:
- An incident is reported, either by staff who are required to report the incident the same day to the principal or by students or parents who have no time limit to report.
- An investigation is launched within 24 hours and parents are notified.
- The investigation is completed within 10 days and a report completed two days after.
- Parents are notified about the result of the investigation within five days of the board of education being informed and they have the right to a hearing before that board.
- The board votes to affirm, reject or modify the decision reached at the next meeting.
- Parents can appeal to the commissioner or pursue discrimination claims under state and federal law.
In the HIB investigation process, there are potentially frustrating but legally required elements of student confidentiality that prevent the district from sharing personally identifiable information about other students, such as who witnessed the event and what kind of discipline or actions the aggressor should face.
“That doesn’t mean things haven’t been put in place,” Nash countered. “Oftentimes there is counseling or restorative justice put in place for another student. There are many other options besides suspension for ways that a school district can respond to a behavior, and they may not be things that are completely obvious but they are happening.”
Nash also noted that “even if the aggressor’s behavior is the manifestation of a disability, it can still meet the HIB definition, and then it is still labeled as HIB,” though the disability will be factored into the response.
When something is labeled as an HIB, code of conduct/violations.
“We often have code of conduct violations and conflicts that don’t meet the definition but lots of steps are being taken to resolve the issue,” Nash said. “It’s important that we don’t get so focused on something having to be HIB that we lose sight of all the productive steps that are being taken in many cases that don’t meet that definition.”
One of the town hall panelists clarified that the difference between addressing a HIB and a code-of-conduct violation is that the former would involve some kind of remedial plan, like counseling and follow-up with the aggressor to prevent a repeat of that behavior, while the latter deals with discipline.
“When there’s an allegation of an HIB specifically, and perhaps the HIB is not founded because of the failure (to find one) of the statutory required elements, that doesn’t mean that the investigation found that there was no bullying,” board of ed Vice President Joel Mayer pointed out.
“ … The common understanding of bullying is not necessarily the same as what is required to find an HIB in the state of New Jersey.”
The full town hall can be viewed at https://bit.ly/44eQKO2.