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2-1-13 Bullying Decision in the News
Star Ledger - N.J. education commissioner upholds decisions to discipline school bullies NJ Spotlight – Cerf Upholds Bullying Charges in First Cases Under Tough New Law…State education chief rejects parents’ appeals in East Brunswick, Tenafly incidents

NJ Spotlight – Cerf Upholds Bullying Charges in First Cases Under Tough New Law…State education chief rejects parents’ appeals in East Brunswick, Tenafly incidents

By John Mooney, February 1, 2013 in Education|

One involved a East Brunswick sixth-grader who called out a classmate in gym for “dancing like a girl.” The other involved a fourth-grader in Tenafly who embarrassed a classmate for having head lice.

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In the first legal cases to go the distance under New Jersey’s tough new law, both episodes have been upheld by the state as incidents of bullying and harassment.

Parents of the accused students had appealed the initial findings by the local districts. But state Education Commissioner Chris Cerf this month upheld the schools’ determinations in each instance, the first such rulings by the commissioner under the state’s Anti-Bullying Bill of Rights.

Legal experts said there will surely be more such cases to come.

“It takes a while for them to work through the system, but you’ll certainly see more,” said Phil Stern, an attorney with Adams Stern Gutierrez & Lattiboudere in Newark, who represents school boards in these and other cases.

Stern said he was not surprised by the appeals, each focusing more on the findings than on any particular penalty. Nor was he surprised by the outcomes, with Cerf largely required only to determine if the process was properly followed.

“You will have a super uphill battle in one of these cases by the time you come before the commissioner,” he said.

The 2011 law requires that schools follow specific procedures and timelines in all cases of even alleged bullying, stipulating when investigations must be launched and resolved with formal findings.

The new law has roiled school districts since its enactment, with more than 13,000 incidents reported by schools in the law’s first year. A state task force monitoring the law’s implementation this week praised the increased awareness of bullying in schools, but also recommended more flexibility be given principals to determine what cases are to be formally investigated.

But that was long after each of these first cases moved through the process, two cases that highlighted some of the tensions that have arisen surrounding the law and its aftermath.

In East Brunswick, for instance, the incident took place in November 2011, when the accused child insulted his classmate by calling him “gay” and saying he “danced like a girl,” according to the case’s legal record.

The school investigated the claim, interviewing the students and witnesses, and found that under the district’s anti-bullying policies -- now strengthened under the state’s new law -- it warranted a finding of bullying. The boy was given three days of detention.

The parents appealed to the state, demanding that the finding be reversed and damages paid. They also asked that the accusing student be given three days of detention.

The case went to an administrative law judge, who found that the case had fallen under the definition as laid out in the new law as “verbal acts motivated by distinguishing characteristics, i.e. gender and sexual orientation.”

“A.C. [the accused] is not a chronic troublemaker, but his actions were hurtful and unkind,” read a synopsis of Cerf’s decision. “The school district’s response of assigning him to detention was designed to redirect A.C.’s behavior in a manner that was consistent with his age and that recognized this was a first offense.”

Cerf, who is an attorney, has the responsibility in these matters to only determine that the local agency had not acted in an arbitrary and capricious manner, and he did so.

“As [the new law] directs that each school directs that each school district’s anti-bullying policy shall contain ‘consequences and appropriate remedial action for a person who commits an act of harassment, intimidation or bullying,’ [the board] did not act arbitrarily, capriciously or unreasonably in imposing upon A.C. three days of detention as discipline for his conduct,” Cerf wrote.

The Tenafly case followed a similar pattern. The incident took place in September 2011. The accused boy called out a girl who had dyed her hair and said she did so because she had lice.

Following an investigation, a finding of bullying was reached, and the boy – identified by his initials L.L. -- was given a school assignment to promote greater sensitivity to others. His parents were notified in writing, but nothing else went into his record.

The parents appealed, demanding the school formally apologize and pay the family all legal fees, in addition to $50,000 for emotional damages.

The administrative law judge in this case again found in favor of the district, saying the boy’s comments “constituted HIB as defined by the law, and interfered with the rights of another student.”

The girl had, in fact, had head lice and the boy claimed he did not intend to embarrass her. But Cerf upheld that board’s determination that the boy “should have realized that pointing out his classmate’s problem would hurt her feelings,” according to the synopsis.

“The petitioners have failed to sustain their burden of establishing that the board had acted arbitrarily, capriciously or unreasonably, in finding that the conduct of L.L. in this matter constituted an instance of harassment, intimidation or bullying” Cerf wrote.

Local school board lawyers said given the strength of the new law, the appeals from parents are sure to become more common – although not all may want to take it all the way to the state commissioner.

“I actually expected more,” said Jonathan Busch of Schwartz Simon Edelstein & Celso in Whippany, whose office represents school boards. “And in the beginning there were more, but they now seem to be dropped off.

“Once the procedures have been in place, districts seem to be handling this with more confidence and knowledge,” he said.

But Stern, the Newark lawyer, said many parents still fear such a bullying finding will be black mark on their child’s academic record, and even if there is no real penalty, they will go to great lengths to remove it.

“I sympathize with their predicament,” he said, “although I really don’t think whether a child goes to college will be much affected by this.”


Star Ledger - N.J. education commissioner upholds decisions to discipline school bullies

By Jeanette Rundquist/The Star-LedgerThe Star-Ledger
on February 01, 2013 at 7:00 AM, updated February 01, 2013 at 7:05 AM

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In the first two cases challenging the merits of New Jersey's tough new anti-bullying law, state education Commissioner Christopher Cerf upheld decisions by school boards in Tenafly and East Brunswick to discipline students found to have bullied classmates.

The Tenafly incident involved a fourth-grader who bullied a classmate in September 2011, less than a month after the law took effect, when he said the child dyed her hair because she had head lice, officials said.

"He was old enough and bright enough to have realized that pointing out head lice to others could hurt ... feelings," Administrative Law Judge Ellen S. Bass said in an earlier ruling in the case. "Cruel words will not be tolerated in New Jersey public schools."

In the East Brunswick case, one boy bullied another in a sixth-grade gym class, saying he "danced like a girl" and was "gay," according to documents in the case.

Both cases involve the Anti-Bullying Bill of Rights which took effect in New Jersey schools in the fall of 2011.

"These cases show schools are taking the issue of bullying very seriously," said Mike Yaple, a spokesman for the New Jersey School Boards Association. "The rulings also noted the schools handed down an appropriate level of discipline, taking into account the child’s age and lack of past discipline issues."

In both cases, the students' parents appealed to the education commissioner after the school districts found their children had bullied other students. Both cases were heard by Administrative Law judges, and the judge's decisions went to Cerf to uphold, modify or deny.

In Tenafly, school officials found the 9-year-old boy violated the law when he told another student that a classmate had head lice. The boy was given an assignment to "encourage greater sensitivity to the feelings of others," and his parents were notified in writing.

No other discipline was imposed and the matter was not put in school records, according to legal documents in the case.

The child's parents, however, sought to have the case dismissed. They also asked for a written apology from school officials, $50,000 in damages for emotional distress to their child and attorney's fees. In addition, they wanted any reference to the incident stricken from school records.

The boy said he was simply telling the truth and "had not intended to hurt her feelings," according to legal documents but Bass, the Administrative Law judge, found the boy's actions constituted bullying. Cerf concurred.

In East Brunswick, the sixth-grader found to have bullied a classmate was given three days of detention "to redirect (his) behavior," according to legal documents. The boy's father filed a challenge asking that charges be dropped. He also sought punitive damages and legal expenses and asked that the accuser also be given a three-day detention.

Both an Administrative Law judge and Cerf sided with the board and the petition was dismissed.

The children involved were identified only by initials in legal documents, to protect confidentiality.

Parents in both cases have 45 days to appeal to the state Appellate Division.

The anti-bullying law, which set strict new time frames and rules for schools to report and investigate bullying, has been subject of considerable debate. An interim report issued by a state task force within the past week recommended some fine-tuning, including giving principals more latitude to drop cases if they feel the behavior doesn't fit the definition of bullying.

But overall, the report supported the law.

"Feedback, survey responses and data revealed a positive response to the intent of the law, particularly related to promoting respectful behavior and a positive school climate," the report said.

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