New Jersey HIB Defense | Lento Law Firm

If your New Jersey elementary, middle, or high school student faces harassment, intimidation, and bullying (HIB) charges, your student needs premier New Jersey criminal defense attorney representation. New Jersey adopted its aggressive HIB program to prevent, remediate, and document school harassment, intimidation, and bullying. But the HIB program's aggressive enforcement mandates and incentives raise the stakes for New Jersey students facing HIB charges. School expulsion and criminal charges could result. If your New Jersey student faces school or criminal HIB charges, retain the Lento Law Firm's Criminal Defense Team and criminal defense attorney Joseph D. Lento for premier school and criminal court representation and the best possible outcome.

What HIB Is Under New Jersey Law

School harassment, intimidation, and bullying have a specific definition under New Jersey law. Section 18A:37-14 of New Jersey's Anti-Bullying Bill of Rights Act defines HIB as harassing, intimidating, or bullying gestures, written, verbal, or physical act, or electronic communications motivated by any distinguishing characteristic of the victim "that substantially disrupts or interferes with the orderly operation of the school or the rights of other students" and that has one or more of these reasonably foreseeable effects:

physically or emotionally harming a student;
damaging the student's property;
placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;
insulting or demeaning any student or group of students; or
creating a hostile educational environment for the student by interfering with the student's education or severely or pervasively causing physical or emotional harm to the student.

The Breadth of New Jersey's HIB Definition

New Jersey's above statutory definition of harassment, intimidation, and bullying may look detailed and specific as if it takes very clear action for one student to bully another. But don't be misled. New Jersey's HIB definition can reach all kinds of conduct between students that students and parents might not consider to be bullying, intimidating, or harassing, giving school officials extraordinary control over student behavior. School officials could construe virtually any student conflict or disagreement as HIB to pursue HIB charges and discipline against the disfavored student. Here are just a few examples of how broad New Jersey's definition of HIB is and how easily your student could get caught up in HIB charges:

the actions your student takes could be anything, not just physical assault but also verbal statements, written notes, or even gestures, emails, texts, and social media posts;
your student's statements and actions need not harm a student or damage property but need only substantially disrupt or interfere with another student's rights or orderly school operations;
your student's statements and actions need not physically or emotionally affect another student but only put another student in reasonable apprehension of being affected;
your student's statements and actions need not have affected another student's person but may just have affected another student's personal property;
your student's statements and actions need not affect another individual student but may insult or demean another group of students; and
your student's motivation need not be one of the categories that other federal and state laws protect, like race, ethnicity, sex, or disability but can be weight, height, demeanor, dress, language, or any other characteristic.

Measures New Jersey's Anti-Bullying Act Requires

New Jersey's Anti-Bullying Bill of Rights Act has, for some time, mandated that schools put in place and maintain specific measures to prevent and address harassment, intimidation, and bullying. The Act's Section 18A:37-15 requires school officials to take each of these actions:

adopt, post, and publicize a policy prohibiting harassment, intimidation, and bullying;
require school staff to orally report HIB to the school principal on the day it happens and report HIB in writing within two days;
require the school principal to inform the victim student's parents on the same day of the reported incident;
require the school principal to initiate an investigation within one day by an anti-bullying specialist who must complete the investigation as soon as possible;
provide in the anti-HIB policy for the counseling, intervention, and progressive discipline of students committing HIB; and
publicly disclose HIB incidents and responses, and forward findings and actions to the district board for review and approval.

New Jersey's Expanded HIB Regulatory Program

New Jersey claims a nation-leading regulatory law, policy, and program against school harassment, intimidation, and bullying (HIB). In 2022, New Jersey lawmakers strengthened and expanded the state's Anti-Bullying Bill of Rights Act, authorizing new anti-HIB regulations codified in New Jersey Administrative Code Section 6A:16-7.7 and 7.8. The statutory and regulatory measures significantly expanded and strengthened New Jersey school anti-HIB programs. The legislative updates added significant new HIB mandates and created new HIB program options. The updates also granted new HIB authority and provided for new HIB appeals. These updates significantly increase your student's risk and stakes for facing HIB school or criminal charges.

New Jersey's New HIB Program Reporting Mandates

New Jersey's Anti-Bullying Bill of Rights Act had already required schools to investigate reports and complaints of harassment, intimidation, and bullying and the district's adopted anti-HIB policy. New Jersey's expanded anti-HIB statutes and regulations mandated these new school HIB reporting requirements beginning with the 2022-2023 school year:

school staff members must submit written reports of suspected HIB to the principal on the newly mandated HIB 338 Form for School Staff;
school districts must provide parents or guardians with the online, confidential means to complete the new HIB 338 Form for Families and Caregivers to report incidents of harassment, intimidation, or bullying; and
school officials must promptly forward completed HIB 338 Forms for the school superintendent to review, evaluate, and act on HIB reports.

New Jersey's New HIB Program Recordkeeping and Intervention Mandates

New Jersey's expanded anti-HIB statutes and regulations further mandated these new school HIB investigations, recordkeeping, and intervention requirements beginning with the 2022-2023 school year:

schools must place investigation results verifying harassment, intimidation, and bullying incidents in the perpetrating student's school record;
school principals must impose an individual student intervention plan, approved by the school district's superintendent, for any student committing three HIB incidents; and
school principals must revise individual student intervention plans for each subsequent HIB incident beyond the initial three incidents.

New Jersey's New HIB Program Options and Authority

New Jersey's expanded anti-HIB statutes and regulations further mandated these new anti-HIB program options to address, prevent, and remediate HIB, beginning with the 2022-2023 school year:

place findings of HIB in the perpetrating student's record;
require that the perpetrating student submit to behavioral intervention and counseling;
discipline the perpetrating student up to suspension and expulsion as school discipline policies provide;
consult law enforcement officials to determine whether to charge the student with a violation of the state's criminal code; and
hold civilly liable the parents of a student adjudicated delinquent for bullying when the parents show willful and wanton disregard for the control and supervision of the student.

What New Jersey's HIB Program Means for Students

The following sections articulate the dangers to students of over-aggressive enforcement of New Jersey's HIB program. As serious of an issue as true bullying may be, and as laudable as anti-bullying measures may be, New Jersey's HIB program gives such broad authority to school officials that virtually any statement or action that potentially offends another student could result in HIB charges and discipline. The chilling effect of HIB over-enforcement can make a school more like a totalitarian surveillance state where any disagreement with school officials or another student results in discipline and charges. Consider these illustrating examples of innocent-seeming student conduct that could result in HIB charges and discipline:

your student sends a text intended to be humorous or sarcastic, poking fun at another student or group of students, but another student claims insult or offense from the text;
your student posts a silly social media video or photograph depicting another student, and the other student claims the depiction to be emotionally embarrassing and offensive;
your student engages in natural playground physical recreation, horseplay, and rough-housing with other students, but another student feels that the physical contact is intimidating;
your student shakes the head, shrugs the shoulders, and rolls the eyes at the conduct, appearance, statements, or demeanor of another student who complains that your student's gestures were demeaning;
your student compliments another student on the other student's hair, makeup, clothing, health, spirit, or fitness, and the other student construes the compliment as an unwelcome sexual advance;
your student places stickers or writing on, or otherwise marks up, another student's paper, notebook, backpack, or other personal items, and the other student claims damage interfering with education;
your student says that it would be interesting, funny, sad, or disturbing if something happened at the school in the future, but another student claims that the statements placed the student in reasonable fear of being affected;
your student takes any position in an assignment or student debate with which another student disagrees, and the other student claims the position was offensive or insulting to a student or student group; or
your student gives advice to another student on clothing, health, or fitness, and the other student claims the advice denigrated the student's characteristics.

HIB Discrimination Against New Jersey Students

The above innocent-seeming student actions that could bring HIB charges and discipline illustrate how students and school officials can use HIB charges to discriminate against disfavored students. In today's charged environment, virtually any student statement or action reflecting the student's family, ethnic, social, cultural, political, religious, or other commitments could offend other students and groups of students. Any student view with which a majority of students, a significant minority of students, or even a single student disagrees could lead to HIB insult and offense charges, especially if the investigating school official also disagrees with that student's view. In HIB complaints and enforcement, students and school officials can and will necessarily choose favored views over disfavored views along cultural, ethnic, social, demographic, political, and religious lines. The very definitions of offense and insult require school officials to make those judgments. HIB enforcement programs place authority in the hands of school officials to choose the favored and disfavored actions and speech and to discriminate accordingly. HIB enforcement will look like remediation to the complainant but discrimination and intimidation of its own kind to the disciplined student.

HIB Over-Prosecution of New Jersey Students

One of the most concerning issues for parents of students whom a school alleges committed an act of harassment, intimidation, or bullying is the new law that criminalizes school HIB incidents. The New Jersey legislature amended the Anti-Bullying Act's Section 18A:37-15.3.b(4) to require school officials to consult with law enforcement about whether to prosecute a student criminally for an HIB incident:

"The superintendent of schools or the superintendent's designee and the principal shall consult law enforcement, as appropriate, pursuant to the provisions of the Uniform State Memorandum of Agreement Between Education and Law Enforcement Officials, if the student's behavior may constitute a possible violation of the New Jersey Code of Criminal Justice[.]"

This new provision can turn the natural and supportive academic, learning, and developmental environment of a New Jersey school into a police or penal institution, where compliance, not growth, and exploration, is the point. Formerly, a student could make a mistake in a way that offended or insulted another student or group of students. But the new law mandates that the school treat that mistake as a criminal offense. The school principal must inform and consult with local police and prosecutors. Because of this new anti-HIB provision, police and prosecutors now have the authority and responsibility to evaluate student-on-student behaviors within New Jersey schools. Don't underestimate the potential chilling effect of this perspective shift. Prepare to defend your student not just against school discipline but also against criminal charges.

New Jersey HIB-Related Criminal Charges

New Jersey's Anti-Bullying Act does not itself criminalize HIB incidents. Instead, the Act's Section 18A:37-15.3.b(4) refers the school principal and law enforcement authorities to New Jersey's criminal code for the criminal charges prosecutors could bring against your student. But New Jersey's criminal code has plenty of applicable crimes with which local law enforcement could charge your student relating to a HIB incident at school. Criminal charges local law enforcement could bring against your New Jersey student for school HIB incidents include:

New Jersey Criminal Code Section 2C:40-3 criminalizing hazing makes the offense a New Jersey disorderly persons offense punishable by up to six months in jail and a $1,000 fine, or a fourth-degree offense punishable by up to eighteen months in jail and a $10,000 fine;
New Jersey Criminal Code Section 2C:33-4.1 criminalizing cyberbullying makes the offense a New Jersey crime of the fourth degree, punishable by up to eighteen months in jail and a $10,000 fine;
New Jersey Criminal Code Section 2C:12-10 criminalizing stalking also makes the offense a fourth-degree crime punishable by up to eighteen months in jail and a $10,000 fine;
New Jersey Criminal Code Section 2C:17-3 makes criminal mischief anything from a disorderly persons offense punishable by up to six months in jail and a $1,000 fine, all the way up to a second-degree offense punishable by up to five to ten years in jail and a $150,000 fine;
New Jersey Criminal Code Section 2C:33-2 makes disorderly conduct, including improper behavior or offensive language, a petty disorderly offense punishable by up to thirty days in jail and a $500 fine;
New Jersey Criminal Code Section 2C:33-4 makes harassment a petty disorderly offense punishable by up to thirty days in jail and a $500 fine; and
New Jersey Criminal Code Section 2C:33-4.1 makes cyber harassment a petty disorderly offense punishable by up to thirty days in jail and a $500 fine.

HIB Over-Investigation of New Jersey Students

If your New Jersey student faces a HIB complaint, the school must give special attention to the investigation of that complaint. Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act requires that a school appoint and train an "anti-bullying specialist" to investigate HIB complaints. The school principal, assistant principal, or another school administrator may investigate ordinary disciplinary complaints. But under state law, HIB is no ordinary matter. The statute specifically requires that a HIB investigation "shall be conducted by a school anti-bullying specialist." When a school designates and trains a specialist, the specialist will use those special skills to reach special conclusions requiring special actions. Your student will, at the least, face a special investigation. The statute further encourages the school principal to appoint a HIB safety committee to urge the anti-bullying specialist: "The principal may appoint additional personnel who are not school anti-bullying specialists to assist in the investigation." These provisions create an extraordinary focus on suspected HIB incidents, empowering a specialist and team of interested staff to go after non-conforming students using their anti-HIB powers.

New Jersey Division of Civil Rights Review of HIB Incidents

Your student may also face further investigation outside of the school over a HIB incident. Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act encourages parents, students, and schools to complain to the state's Division on Civil Rights "of any incident of harassment, intimidation, or bullying based on membership in a protected group" named in New Jersey's anti-discrimination law. The Division of Civil Rights may commence its own investigation and proceeding if your student's alleged actions involved a protected group.

HIB Over-Reporting of New Jersey Students

New Jersey's new anti-HIB provisions also expand HIB reporting requirements in ways that will likely result in the over-reporting of New Jersey students for suspected HIB incidents. New amendments to Section 18A:37-15.3.b.(5) of the Anti-Bullying Act require the school to use a specific HIB form to capture, from teachers and parents, HIB incidents to forward to the principal for immediate action and subsequent district board review:

The written report shall be on a numbered form developed by the Department of Education. A copy of the form shall be submitted promptly by the principal to the superintendent of schools. The form shall be completed even if a preliminary determination is made under the school district's policy that the reported incident or complaint is a report outside the scope of the definition of harassment, intimidation, or bullying pursuant to section 2 of P.L.2002, c.83 (C.18A:37-14 ), and shall 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. A redacted copy of the form that removes all student identification information shall be confidentially shared with the board of education after the conclusion of the investigation, if a hearing is requested by a parent or guardian pursuant to subparagraph (d) of paragraph (6) of this subsection.

The school must also make the form available online for parents to complain confidentially of suspected HIB incidents. These provisions create an extraordinary focus on alleged HIB incidents and give those allegations extraordinary priority for swift handling, investigation, and dissemination. Schools have wide ranges of priority academic, operational, and disciplinary matters. Giving such extraordinary attention and priority to alleged HIB incidents creates incentives for the over-reporting of suspected HIB, over-aggressive investigation, and over-aggressive discipline.

Increased HIB Stakes for New Jersey Students

Parents can see from the above provisions the extraordinary attention, focus, and priority New Jersey's Anti-Bullying Act and the Act's amendments give to HIB allegations. That unusual focus significantly increases the stakes for New Jersey students facing HIB charges. It's one thing for a New Jersey student to face academic or behavioral misconduct charges around things like failure to progress, cheating on an exam or paper, or smoking or drinking on school property. It is quite another thing for a student to face HIB allegations. Your student faces the following risks and stakes when school officials investigate your student on HIB allegations:

immediate suspension and removal from the school, with the potential for long-term suspension, expulsion, and alternative disciplinary placement;
immediate investigation without hearing, representation, and other protective procedures;
same-day disclosure to the putative victim's parents of the allegations against your student;
prompt conclusion of the investigation and preparation of written investigation reports;
prompt forwarding and distribution of investigation reports and findings to the school principal, district board, and other officials;
the prospect for public disclosure of the HIB incident to parents and the school community;
consultation with local police and prosecutors over whether to criminally charge your student;
criminal referrals that could result in juvenile delinquency or criminal court proceedings, fines, and incarceration; and
referral to the state department of civil rights for further action against the school and your student.

Collateral Consequences of New Jersey HIB Charges

If your student suffers any of the above school discipline or criminal charges, convictions, and punishments, your student may also suffer severe collateral consequences. Even a brief out-of-school suspension can affect your student's academic progress, student relationships, teacher and staff relationships, and school and community reputation. Relationship and reputation effects can burden, distract, demotivate, and depress your student. Your student may also lose the ability or desire to participate in co-curricular and extra-curricular school activities. Your student may not pursue academic studies, sports, arts, clubs, and other interests with the same interest, energy, and vigor. More-severe disciplines like long-term suspension or expulsion can completely eliminate supportive peer, teacher, and mentor relationships and helpful schedules and structures. Your student may fail to persist and may not graduate. School discipline also affects mental and physical health and can lead to serious issues with depression and even suicidal ideation, drinking, and drugs. Other potential collateral consequences include:

loss of vocational training;
loss of employment opportunities;
loss of career guidance and development;
inability to qualify for licenses and certification;
loss of social and emotional development;
loss of references and recommendations;
inability to gain admission to preferred colleges and universities; and
impacts on relationships with relatives and friends.

New Jersey HIB Program Procedures for Investigation

As indicated above, the school must designate an anti-bullying specialist to promptly investigate the HIB charges against your student. When the specialist completes the investigation within ten days, the specialist provides the investigation report to the school principal. Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act then requires the school principal to forward the completed report to the district superintendent within two days. The superintendent decides whether to implement the recommended student discipline or intervention. The superintendent must also determine from the incident report whether to implement additional measures to enhance the school climate. The superintendent must then report the investigation results to the full district board no later than the next board meeting, along with the superintendent's report on the imposed discipline and any HIB program improvements.

New Jersey HIB Program Notice to Parents or Guardians

If your student faces school HIB charges, you and your student may not initially be involved in the school's investigation, district review, or findings. School officials may largely act on their own without protective procedures, at least initially. You may learn of the investigation and its outcome only after it is over. After the above initial investigation and response steps, Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act states that parents or guardians of the involved student are:

entitled to receive information about the investigation, in accordance with federal and State law and regulation, including the nature of the investigation, whether the district found evidence of harassment, intimidation, or bullying, or whether discipline was imposed or services provided to address the incident of harassment, intimidation, or bullying.

Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act requires the school to provide that information to the parents or guardians within five school days after the school's report to the district board. Thus, the initial investigation, findings, and discipline may occur without parent or guardian participation. You won't initially have due process protections.

Invoking a Board Hearing on New Jersey HIB Discipline

After the initial HIB investigation and board review conclude, you and your student may invoke a board hearing to review the superintendent's decision to discipline your student for a HIB incident. Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act permits you and your retained education attorney to request a hearing before the board. If you make that request, the board must hold the hearing within ten days. Without the request, though, you won't get the board's review hearing. The Anti-Bullying Act does not specify how the board must conduct its hearing other than to say that it must do so behind closed doors:

"The board shall meet in executive session for the hearing to protect the confidentiality of the students. At the hearing the board may hear from the school anti-bullying specialist about the incident, recommendations for discipline or services, and any programs instituted to reduce such incidents[.]"

Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act requires that the board issue its decision in writing no later than the next board meeting after the hearing. The statute gives the district board the authority to "affirm, reject, or modify the superintendent's decision." You can thus invoke the board's review of the superintendent's discipline of your student.

New Jersey HIB Program Discipline Appeals

You may take further action to protect your student against inaccurate HIB findings and unfair HIB discipline beyond invoking a district board review. Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act provides that a parent or guardian may appeal the district board's decision to the New Jersey Commissioner of Education within ninety days. Appeals to the Commissioner must follow New Jersey administrative rules and procedures. Those rules may limit the grounds for a Commissioner's appeal to procedural irregularities denying due process rights, decision-maker bias or conflict of interest, or a decision outside the scope of the district's authority. The district board won't face those limitations when reviewing a superintendent's actions. But you do effectively have two forms of review of an adverse superintendent HIB decision disciplining your student: (1) the district board hearing review; and (2) an appeal to the state's Commissioner of Education.

New Jersey Criminal Defense Attorney for HIB Defense

Your best move if your student faces HIB disciplinary investigation and allegations is to retain the Lento Law Firm's Criminal Defense Team and premier New Jersey criminal defense attorney Joseph D. Lento. Representation from a team of criminal defense professionals having substantial skill and experience in school discipline matters can lead to your student's best possible outcome. The above HIB law, rules, regulations, and procedures are complex, especially in the context of other general laws, rules, regulations, and procedures to which HIB law refers. You and your student won't have that deep law knowledge. Nor will you and your student have procedural skills or academic administrative experience. A skilled and experienced Criminal Defense Team brings you and your student the representation you need for strategic and effective defense of HIB charges. Your retained attorney Criminal Defense Team may perform any or all of the following actions on your behalf and for the best outcome for your student:

notify the school principal, district superintendent, and district board of the Criminal Defense Team's retention, alerting school officials that their actions are under scrutiny and that you are prepared to fight for your student's rights;
request and attend informal resolution conferences seeking an early voluntary dismissal of the HIB charges, under creative compromise solutions that address school interests while preserving your student's enrollment;
get a specification of the HIB charges and allegations so that you and your student know what complainants and school officials maintain that your student did or did not do that led to the HIB charges;
help you evaluate the school's allegations and evidence, and your student's rights and options, to fashion a strategic approach to your student's HIB defense that will best achieve your student's goals and objectives;
obtain the school's information and evidence supporting or contradicting the HIB allegations so that you and your student have the same information on which school investigators and officials may act;
help you acquire, organize, and present your own information and evidence to defend and defeat the HIB charges, exonerate your student, and mitigate any discipline, in the course of the specialist's investigation;
present evidence and arguments to the district superintendent as the superintendent permits and accepts, to ensure that the superintendent has your information and understands your student's position and interests, before the superintendent makes the HIB findings and imposes discipline;
invoke district board review of any of the superintendent's adverse HIB findings and discipline, and prepare and make presentations to the board as the board permits at the board review hearing;
appeal to the state's Commissioner of Education any adverse findings the district board reaches and any discipline the board imposes, articulating compelling grounds for relief;
negotiate through the school district's general counsel, outside retained counsel, and other oversight channels for your student's alternative special relief, to ensure your student's best chance to remain in the traditional school placement and program; and
if necessary, evaluate litigation and regulatory avenues for relief from any discipline imposed contrary to law, rule, and regulation.

Dual School and Criminal Defense Representation

New Jersey HIB investigations pose a dual risk to your student of both school discipline and criminal charges. Your student may face not only school suspension, expulsion, and alternative placement but also juvenile delinquency proceedings or criminal court charges. Your student may thus require dual attorney defense representation in both the school proceeding and the juvenile or criminal proceeding. You don't want to have to retain two different attorneys for each of those dual proceedings. When you retain the Lento Law Firm's Criminal Defense Team, you get both the academic administrative skills and experience your student needs for school discipline defense and the criminal court skills and experience your student may need for the juvenile or criminal court proceeding. The Lento Law Firm Team can help your student manage the dual HIB risks of school discipline and criminal charges, which deserve and require coordination. Retain the Lento Law Firm's Criminal Defense Team for the dual representation your student needs in New Jersey HIB matters.

Premier New Jersey Student Defense Representation

The Lento Law Firm's Criminal Defense Team and premier New Jersey criminal defense attorney Joseph D. Lento have helped hundreds of New Jersey students and students nationwide defend and defeat school discipline implicating criminal charges. Students at every level, from lower elementary through middle school and high school, and beyond to college or the university, have trusted the Lento Law Firm Team for their successful defense. Having the Lento Law Firm Criminal Defense Team on your student's side protects your student's due process rights and gives your student the best chance for the best possible outcome.

Avoid unqualified criminal defense counsel lacking the academic administrative skills and experience that an effective response to HIB allegations and other school disciplinary charges requires. Don't retain a criminal defense lawyer or civil litigation attorney who has never handled school discipline defense. School law, rules, and procedures differ from criminal court law and procedure and from civil court rules and procedures. The successful outcome of your student's HIB case will depend on academic laws and administrative rules and procedures. The Lento Law Firm's Criminal Defense Team and attorney Lento have the academic administrative experience for your student's best outcome to New Jersey HIB charges.

Call 888.535.3686 or go online now to retain the best school discipline defense and criminal charge defense available for New Jersey students facing HIB charges. Your student's education and future are worth protecting. Your student has everything at stake in an HIB proceeding.

New Jersey Harassment, Intimidation, & Bullying (HIB) Defense