This is the second installment of a series of posts devoted to the protecting New Jersey’s students from acts of harassment, intimidation, bullying, discrimination and self-harm.
Screaming from the rooftops to all educators. It’s more than just bullying…
School administrators who employ the “either-or” process of compartmentalizing a student’s behavior based on the “box” that the administrator is either most comfortably working within or believes that the behavior belongs in exclusively runs the risk of violating the student’s civil rights and causing himself and his district to be found liable for discrimination.
The compartmentalization of students’ behaviors is a potentially hazardous practice for educators to adopt, especially when the behaviors are or have the potential to be discriminatory. Educators have been conditioned to serve as compartmentalized task masters. The standard template for instructional planning that is engrained in all educators to (1) develop a realistic and achievable goal; (2) develop measurable objectives; and (3) select learning standards from the prescribed curriculum works very well for instruction. However, it does not work well for behavior identification.
The process of compartmentalization limits one’s ability to apply thoughtful analysis to students’ behaviors as fluid responses to actual or perceived antecedent or situational stimuli. Students’ behaviors are far more complicated than those listed in a comprehensive, well-organized policy for general behavioral infractions. Educators have been conditioned to identify a behavior from column A, the offence level from column B, and then apply the prescribed administrative response from column C.
The process to identify students’ behaviors and select appropriate responses to said behaviors needs to be more thoughtful than selecting items from a lunch menu. Students’ behaviors serve as clues to—not evidence of the root causes of the underlying problem. Unfortunately, if the root cause is not identified correctly and addressed effectively, then problematic behaviors will continue to sprout from the root and will eventually overrun the student. Likewise, the collective behaviors of a school’s student body can overrun the school’s culture and cause it to be toxic, unsafe, potentially discriminatory.
The inability for students’ to effectively self-regulate their behaviors and for school staff to identify and remediate said behaviors consistently and with fidelity are the arguments for the New Jersey Law Against Discrimination and Anti-bullying Bill of Rights Act. As a society, we have laws to protect our general safety, and ensure our rights as citizens against abuses by other people, by organizations, and by the government itself. In regard to public schools, we have the New Jersey Law Against Discrimination and Anti-bullying Bill of Rights Act to protect students from other students, from staff and from the school district, all which have the potential to cause harm to a student’s physical, emotional or psychological well-being.
Schools exist for instruction
New Jersey’s public-school system exists to provide instruction for all children. This is a Constitutional requirement. It is the responsibility of the New Jersey Legislature to “provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all children in the State between the ages of five and eighteen years.”
Instruction of all children
The New Jersey Law Against Discrimination protects all public-school students who belong to or are perceived to belong to a protected group. In New Jersey, schools are prohibited from discriminating against students based on race, creed, color, national origin, ancestry, nationality, sex, sexual orientation, gender identity or expression, and disability; and requires covered schools to take appropriate action to prevent and remediate discrimination against a student because of his or her actual or perceived race, color, religion, national origin, ancestry, nationality, sex, sexual orientation, gender identity or expression, or disability.
In regard to the instruction of all children, all means all. All means wealthy, middle-class, low-income students; English language learners; students of all races, creeds, colors; students from all national origins, ancestries, nationalities; students from all types of sexes, sexual orientations, gender identities or expressions; and students with all types of disabilities and abilities.
In order for all children to receive instruction, the instructional environment must be safe and civil. The New Jersey Legislature enacted 18A:37-13 in support of the establishment and maintenance of safe and civil school environments for all students:
“The Legislature finds and declares that: a safe and civil environment in school is necessary for students to learn and achieve high academic standards; harassment, intimidation or bullying, like other disruptive or violent behaviors, is conduct that disrupts both a student’s ability to learn and a school’s ability to educate its students in a safe environment; and since students learn by example, school administrators, faculty, staff, and volunteers should be commended for demonstrating appropriate behavior, treating others with civility and respect, and refusing to tolerate harassment, intimidation or bullying.”
A public school is a place of public accommodation
The New Jersey Law Against Discrimination’s protections for obtaining employment, accommodations and privileges without discrimination provide protections for public school students through N.J.S.A. 10:5-4. Obtaining employment, accommodations and privileges without discrimination; civil right.
“4. All persons [includes students] shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation [includes public schools], publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, nationality, sex , gender identity or expression or source of lawful income used for rental or mortgage payments, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right.”
Environment free of harassment, intimidation, bullying and discrimination
The New Jersey Law Against Discrimination and Anti-bullying Bill of Rights Act require all public schools to provide all students with the opportunity to receive instruction in an environment free of harassment, intimidation, bullying and discrimination.
“Educational case law has established that educators have “[n]o greater obligation . . . than to protect the children in their charge from foreseeable dangers, whether those dangers arise from the careless acts or intentional transgressions of others.” Frugis, supra, 177 N.J. at 268. Although Frugis involved the need to protect children from adults, its rationale applies to the present circumstances. That is, a school district’s “first imperative must be to do no harm to the children in its care. A board of education must take reasonable measures to assure that the teachers and administrators who stand as surrogate parents during the day are educating, not endangering, and protecting, not exploiting, vulnerable children.” Ibid.”
The New Jersey Department of Education provides guidance for the implementation of the New Jersey Law Against Discrimination and its relation to the Anti-bullying Bill of Rights Act
- When school staff or administrators know, or should know, that bias-based HIB is happening, the administration must take actions reasonably calculated to stop it.
- The school or school district may be held liable under the New Jersey Law Against Discrimination (LAD) if a school administrator failed to take actions reasonably calculated to stop Harassment, Intimidation and Bullying (HIB).
- The conduct was sufficiently severe or pervasive that a reasonable student of the same age, maturity level and protected characteristic would find that bias-based Harassment, Intimidation and Bullying created an intimidating, hostile or offensive school environment.
- “Discrimination” includes HIB that targets a student because of any of the protected characteristics listed above. This is known as “bias-based HIB.”
- The LAD requires covered schools to take appropriate action to prevent and remediate HIB that targets a student because of his or her actual or perceived race, color, religion, national origin, ancestry, nationality, sex, sexual orientation, gender identity or expression, or disability.
- Discrimination is based on a “perceived” protected characteristic when the perpetrator believes that the victim is a member of a LAD-protected group or has a LAD-protected characteristic, even if that belief is wrong.
- The ABR addresses HIB that targets a student because of race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, a mental physical or sensory disability, or because of any other distinguishing characteristic.
- The LAD prohibits HIB that targets a student because of race, color, religion, national origin, ancestry, nationality, sex, sexual orientation, gender identity or expression, or disability. This type of conduct is commonly referred to as “bias-based” HIB. The LAD does not cover HIB that targets a student because of any other distinguishing characteristics.
Knew or should have known
L.W. v. Toms River Regional Schools Board of Education, 2007 found that the New Jersey Law Against Discrimination recognized hostile environment claims against the school district. It was concluded that a school district will be liable for such harassment where the school administrator or his agents knew or should have known of the harassment and failed to take effective measures to stop it. The phrase “should have known” requires school administrators to have knowledge of their school’s macro and micro cultures and to act to establish macro and micro cultures that are safe, supportive and conducive to learning while also eradicating those that are not. In order to do so, administrators should avoid the temptation to serve as behavior task-masters—doling out prescribed punitive measures for undesired behaviors for the sake of processing the day’s list of disciplinary referrals. This practice contains several potential hazards, the most hazardous comes in the form of a civil rights violation. A behavior that violates the school’s code of conduct may also qualify as a violation of the Anti-bullying Bill of Rights Act and the New Jersey Law Against Discrimination. If the administrator simply processes the behavior infraction as a code of conduct infraction and assigns punitive measures i.e. suspension and does not refer the behavior to the appropriate staff member(s) responsible for the enforcement of New Jersey Law Against Discrimination and the Anti-bullying Bill of Rights Act, that administrator would have denied the student his separate protections as provided by of the New Jersey Law Against Discrimination and the Anti-bullying Bill of Rights Act, and therefore would potentially cause the school district to qualify as a discriminatory environment.
When it comes to students’ behaviors that may qualify as harassment, intimidation, bullying and discrimination, educators should not attempt to compartmentalize the behaviors as harassment, intimidation, bullying OR discrimination. It is not a binary decision. A single behavior may qualify as both. The New Jersey Law Against Discrimination and the Anti-bullying Bill of Rights Act are separate requirements that must be enforced concurrently. New Jersey public school students are entitled to the protections afforded by both—not one or the other when the alleged behaviors of the aggressor(s) violate the protections afforded to all public-school students.
School administrators should not attempt to find a compartment in their administrative tool chest that contains the tools to fix the behavior. A behavior may require the tools from multiple compartments within the administrator’s tool chest, or more commonly, tools from the compartments contained within other administrators’ tool chests.
Again, a behavior that violates the school’s code of conduct may also qualify as a violation of the Anti-bullying Bill of Rights Act and the New Jersey Law Against Discrimination. If so, then each administrator (or duly appointed staff member) would be required to perform his factfinding, make a determination, and develop a response as per his assignment. If three different staff members are each responsible for an area, then one staff member would process the code of conduct referral, the second would process the Anti-bullying Bill of Rights Act referral and the third would process the New Jersey Law Against Discrimination referral.
And, not or
Any instance in which the alleged behavior is based on an actual or perceived protected characteristic as enumerated by the New Jersey Law Against Discrimination and the Anti-bullying Bill of Rights Act would require three separate responses from the school district:
- Code of Conduct;
- Anti-bullying Bill of Rights Act; and
- New Jersey Law Against Discrimination
When the behavior qualifies as more than Code of Conduct, then it has the potential to be discriminatory if the behavior is motivated by an actual or perceived protected characteristic. The only instance in which the behavior would not have the potential to be discriminatory is if the behavior is based solely on an “otherwise distinguishing characteristic.”
It is the affirmative duty of all educators (and contracted service providers, coaches and volunteers) to provide all students with the opportunity to receive instruction in an environment free of harassment, intimidation, bullying and discrimination.
A school district’s first priority is to do no harm to its students. Acts of harassment, intimidation, bullying and discrimination have the potential to cause students to experience long-term harm in the form of educational deficiencies, emotional trauma, and unhealthy psychological adaptations. In addition, the cumulative effects of these behaviors over time cause the school’s culture to become toxic for all of its members.
It is critical for educators to acknowledge problematic behaviors as more than just bullying in order to establish safe, civil school environments that are free from discrimination and conducive to learning and achievement for all students.