Your child's school has decided that your child engaged in banned acts of Harassment, Intimidation, or Bullying (HIB). Your child now faces discipline and may find support in short supply. The bully, after all, must be the bad guy, right?
The good news is that you have options. You can appeal this decision.
The goal of New Jersey's HIB laws is to provide a safe space for students. That students shouldn't be bullied or harassed when attending school is common sense.
Unfortunately, HIB policies can be inconsistently and ineffectively applied. Administrators can be overzealous in punishing any alleged bullying without properly investigating. Disciplinary actions can harm an accused student's education and reputation.
Up to 75 percent of complaints do not meet the criteria for bullying. At least one expert cautions that overly ambitious anti-bullying laws can escalate hostilities rather than improve interpersonal relationships between students.
Your child has now become a target of HIB laws. These modern-day Salem witch trials often focus on feelings and the appearance of doing the right thing rather than actual corrective action.
You may agree with a school that your child acted poorly but believe the disciplinary action is far more serious than your child's actions. A school may conduct an incomplete investigation or fail to consider mitigating evidence or information. A school may inconsistently enforce its HIB policies, using them to punish certain students.
You have the option to appeal any HIB decision made by your child's school. The facts surrounding your child's situation can influence your best option for contesting the decision. The Lento Law Firm Criminal Defense Team and Student Discipline Defense Team can help you decide on the best course of action to protect your child's education and future. Call us at 888-535-3686 or fill out our online form.
HIB Policies
While New Jersey sets the model policy for HIB, each board of education is responsible for implementing its district's HIB policy. While many of these policies are similar, you should focus on your child's school's policies when contesting HIB decisions.
Three Criteria
For an incident to meet New Jersey's definition of harassment, bullying, or intimidation, it must:
- Be motivated by either or actual perceived characteristics
- Takes place on school grounds, at a school-sponsored event, on school property (e.g., a bus), or off school grounds in certain circumstances
- Substantially disrupts or interferes with school operations or other students' rights and:
- A reasonable person would know that an action would physically or emotionally harm a student, damage a student's property, or place a student in reasonable fear of harm
- Insults or demeans a student or group of students
or
- Creates a hostile environment by interfering with a student's education or severely or repeatedly causing physical or emotional harm to the student
All three elements need to be present for a situation to meet the HIB definition of bullying. Schools may sometimes discipline a student even when a situation doesn't meet all three elements.
HIB Investigation Process
Schools should follow the same general process for investigating allegations of HIB. The steps are:
- Verbal report
- Parent notification
- Investigation
- Written report
- Investigation report
- Chief School Administrator's actions
- Chief School Administrator reports to the Board of Education
- Information to parents
- Hearing of appeal (optional)
- Board of Education's written decision
One of the first questions when deciding whether to appeal is if school districts followed their procedures for investigating alleged HIB. Investigations should be comprehensive and consider all available evidence, not just what a victim or teacher says.
Potential bias should also be considered. A teacher or administrator may dislike your student for reasons unrelated to the initial complaint but not properly investigate for personal reasons.
Chief School Administrator
One term that appears frequently in HIB materials is Chief School Administrator (CSA). This is the highest-level administrator within a school. CSAs are often superintendents. Under the Anti-Bullying Bill of Rights Act (ABR), the CSA:
- Reviews all investigations of reported incidents of bullying
- Reports investigation findings to the Board of Education
- Takes action to correct HIB as needed
As part of preparing for an appeal, one question to ask is if the CSA was a neutral third party when carrying out its responsibilities.
Reasons for Appeals
New Jersey recommends that parents and guardians have a clear reason for their decision to appeal. That you dislike your child being disciplined or think the action will hurt them when they apply to colleges are not, on their own, sufficient reasons.
Most reasons for appeals will center on errors made by the school during the investigation process. You may also appeal if, while you agree that the school should discipline your student, the chosen disciplinary action was overly severe. Some common reasons parents or guardians appeal an HIB decision:
- Disagreement with the investigation's results, especially when parents have evidence to back up their claim
- The investigation was incomplete, omitted key information, or ignored extenuating circumstances
- The school's discipline, intervention, or remedial steps were unduly severe or don't address or are unrelated to the incident in question
- Lack of information, with the caveat that student records and privacy laws do limit what information parents and guardians can access
- School officials handled any part of the complaint process unfairly or unlawfully
Context is important in HIB investigations.
For example, your child did commit the alleged actions, but they were reacting to another student's behavior or bullying. The school didn't consider the other student's actions before the key incident, and in that larger picture, your child's actions should be viewed more as self-defense.
Know Your Defenses
When building an appeal, you need to make sure your defenses explain your student's actions and aren't prohibited by law. If your child was the only one punished when several students were engaged in an action, you don't want to argue that “everyone else was doing it.” Rather, you should point to the school's inconsistency in enforcement.
Another example is hazing. Schools generally prohibit hazing, even when students consent to those actions.
Delbarton School's Student Handbook bans all hazing. The school presumes any activity that meets the definition of hazing is a forced activity, and a student's willingness to participate in the hazing activity or ritual isn't a defense. Moreover, when the hazing relates to any school organization, all members of that organization are responsible, and the organization's student leadership may face additional disciplinary action.
As an appeal, stating a student agreed to the hazing ritual isn't a defense. If your student didn't participate and had no knowledge or reason to know about the suspected hazing, you might want to argue that your student shouldn't be punished simply for membership with a club or organization.
The Lento Law Firm Criminal Defense and Student Discipline Defense Teams can help you build a defense for an appeal and show why your student is being unfairly disciplined.
Appeals Procedures
While New Jersey has a model for appealing HIB decisions, each board of education sets its district's policies. Parents and guardians should check with their school district about the district's appeals process, and schools should provide that information to parents when they make that decision.
Mendham Township School District provides the following avenues of appeal:
- After a parent receives the results of an investigation, they may request a hearing before the Board of Education
- If they disagree with the board's decision, they can appeal to the Commissioner of Education
When families disagree with the commission's decision, they have another option. They may appeal to the Appellate Division of the Superior Court of New Jersey.
Timing is crucial for any appeal. Appeals generally have strict deadlines to file. Failure to file often ends your ability to appeal a decision.
Other Parents' Right to Appeal
Any parent who disagrees with a HIB investigation can file an appeal. This includes parents who believe a school should have found HIB. They can also appeal if they believe a disciplinary action should have been more severe or failed to protect their child from alleged HIB.
For children and teenagers wrongly accused of bullying, these appeals can be an added source of stress. They again face uncertainty regarding facing disciplinary action.
Students With Disabilities
If your student has a qualifying disability, one question is whether a school district considered that disability when disciplining your student. For students with disabilities, discipline under HIB can have especially serious effects on their education. As the Millburn Township Public School's HIB policy states, students disciplined under HIB may have fewer rights to general and special education services and support.
Schools are more likely to discipline students with disabilities. A school may fail to consider how a student's disability affects their interpersonal skills or ability to understand the consequences of their actions.
Criminal Charges
New Jersey law requires that schools refer certain matters to law enforcement. The Uniform State Memorandum of Agreement Between Education and Law Enforcement Officials (MOA) lists the actions or threatened actions that school officials must refer to law enforcement. The following actions relate to HIB and mandatory reporting:
- Firearms or dangerous weapons to assault another student, even if off school grounds
- Threatening serious bodily injury to another person
- Sexual Assault
- Bias-Related Incidents
School employees don't have to have concrete evidence against a student. Having a reason to believe a student has or attempted to commit any of these actions is enough to trigger a mandatory report. Students may be erroneously reported to law enforcement due to a staff member's misguided belief, or a staff member may overestimate the threat.
Protect Your Child's Future
Students should be able to attend school without fear of being bullied. That includes not being subjected to false accusations, incomplete investigations, or arbitrary, overly severe discipline.
If your student has been disciplined under HIB policies, you have the right to appeal. The evidence and information you provide are crucial, and The Lento Law Firm Team can help you build a case. Call us at 888-535-3686 or fill out our online form.
