The NJ Legislature passed the Anti-Bullying Bill of Rights Act (ABR) in 2011 and amended the Act in 2022. Under the ABR, the school district has an obligation to prevent and address bullying, intimidation, and harassment (HIB). As a result, school districts may have a responsibility to:
- Impose discipline, including suspension or expulsion, on a student who violates the HIB Policy in the school's Code of Conduct.
- Report some HIB violations to law enforcement authorities for possible juvenile criminal prosecution.
If your child is accused of bullying or harassment at school, they may face juvenile charges. At the same time, they may also face remedial measures at school, including suspension or expulsion. Many students and parents find the need to fight criminal charges and school discipline simultaneously overwhelming. However, the Lento Law Firm can represent your student effectively in both settings.
The Lento Law Firm's Criminal Defense Team can provide a tough and effective defense for your student against criminal charges. The Student Defense Team has experience with school HIB allegations and can defend your student against suspension, expulsion, or other discipline under the school's Code of Conduct. If your NJ student faces allegations of bullying, intimidation, or harassment, the Lento Law Firm is ready to help and work for the best possible outcome. Call 888.535.3686 or provide your details online, and we will contact you.
Bullying Allegations Reported to Law Enforcement
Some HIB allegations are more likely to result in referrals to law enforcement and juvenile charges. These types of allegations include:
- Physically hitting or touching another student.
- Threats of physical violence.
- Cyberbullying or Cyber-harassment
- Posting lewd or obscene materials online.
New Jersey Harassment Law
The most likely criminal charge arising from school bullying accusations is for violations of NJ Harassment Law, NJSA 2C:33-4, which applies to adults and youthful offenders. There are three main types of harassment covered under this law:
Communications that are done anonymously or at extremely odd hours.
The definition of communication is broad—it includes texts, instant chats, telephone calls, letters, or other written or verbal communication. This type of violation would include a prank phone call made repeatedly or late at night. Communications might also involve offensive coarse language. To meet the legal definition of harassment:
- The defendant must have made a communication.
- The defendant must have intended to harass another person.
- The communication must have been done in a way likely to cause alarm or annoyance.
Physical hitting or touching of another person in an offensive way.
This type of harassment may look very much like simple assault. The law considers it a petty, disorderly offense if it occurs after a mutual fight. This type of harassment might include:
- Striking someone or threatening to do so.
- Kicking, pushing, or shoving another person.
- Fighting with another student.
Repeated actions intended to harass or alarm another person.
This type of harassment involves a pattern of conduct intended to harass or annoy another person. It might include sending an unreasonable number of text messages or calling someone who does not want to be contacted.
Juvenile Charges of Harassment
For first-time juvenile offenders, there is a presumption that the charges are petty disorderly persons offenses and should not involve incarceration or detention. If, however, a juvenile has previously been charged with another type of crime, the court may impose detention. Even for a first-time offender, the court has broad discretion to impose non-custodial requirements.
Cyberbullying or Cyber-harassment
Criminal charges for Cyber-harassment also may arise from school bullying allegations. Under NJ law, Cyber-harassment occurs when:
- The defendant makes a communication, including a social media post, text, chat, or email.
- The communication is made to harass another person.
- The communication involves:
- Threats to harm another person or their property.
- Lewd or obscene material presented with the intent to harm the person or make them fearful.
- Threats to commit a crime against a person or their property.
Cyber harassment might involve the posting or sharing of obscene material about someone to cause embarrassment or fear. It might involve extortion to avoid the posting of explicit material.
The court may impose harsh penalties against a juvenile found to have engaged in cyber-harassment or cyberbullying, including incarceration for up to a year, fines, and restitution, or ordering the juvenile and their parent to take classes on cyber-harassment.
Juvenile Arrest Process
Under NJ law, there is no minimum age for juvenile charges. The juvenile process involves a different set of rules and a different court than adult charges. The first issue of concern will be whether a youth charged with a juvenile offense remains in detention. There is no juvenile system of bail bonds, and whether a youth is released to a parent or guardian while charges are pending is at the court's discretion.
Juvenile Representation by the Lento Law Firm
The Lento Law Firm Criminal Defense Team will defend your child against juvenile charges for Harassment, Cyber-harassment, or any other charge arising from HIB allegations. The Lento Law Firm has years of experience defending juvenile charges and will provide tough and aggressive representation.
Criminal Charges vs. Code of Conduct Violations
Just as your student may face juvenile charges, they also may face suspension or expulsion from the school district as a result of an allegation of bullying or harassment. While criminal issues are vital, it is also essential that your student defends against remedial measures from the school.
Code of Conduct Violations
Under the Anti-Bullying Bill of Rights Act (ABR), NJ school districts must adopt a policy statement that:
- Prohibits harassment, intimidation, and bullying (HIB) of students.
- Defines HIB violations at least as inclusively as the HIB definition in the ABR.
- Defines expected student behaviors.
- Set forth consequences and remedial actions for students who commit HIB violations.
HIB Definition and Requirements Under ABR
Under the ABR, a HIB violation may be:
- Written communication.
- Verbal statements.
- A physical act.
- Electronic communication, such as social media posts, texts, or email.
- A single act or a series of acts.
New Jersey law (NJSA 18A:37-14B) defines HIB violations as having these three main requirements:
- Must be motivated either by an actual or perceived characteristic. This characteristic may be race, color, religion, sexual orientation, gender or gender identity, disability, or any other distinguishing characteristic.
- Must occur on school property or at a school function or activity. or Off-campus behavior that substantially disrupts or interferes with school operations or the rights of other students.
- The behavior must involve at least one of the following conditions:
- Physically or emotionally harms the student or their property or places the student in fear of physical or emotional harm. or
- Insults or demeans a student or group of students. or
- Creates a hostile school environment for the student by interfering with their education or causing severe and pervasive harm to the student.
School Code of Conduct HIB Violation Procedure
Step One: An allegation or complaint is made in writing (it may or may not be on HIB Form 338) or verbally. Students, parents, teachers, or other interested parties may claim HIB violations anonymously.
Step Two: The principal receives the allegation or complaint and, depending on the allegations, may need to take steps to ensure the parties' safety.
Step Three: The principal makes a Preliminary Determination whether the complaint will proceed as a HIB complaint, a Code of Conduct violation, or neither. If the principal determines that HIB law does not cover the allegations, the alleged victim's parents may appeal.
Step Four: If the Preliminary Determination is that the allegations may involve a HIB violation, the principal will forward the allegations to the Anti-Bullying Specialist (ABS) for investigation. The ABS will interview witnesses and review evidence to determine whether the allegations are credible and involve either a HIB violation or a violation of the Code of Conduct.
Step Five: The ABS forwards the investigation results to the principal, who must deliver them to the superintendent within two days. The superintendent may override the principal's decision or may agree with it. The superintendent then forwards the investigation results to the Board of Education (BOE) at the next meeting.
Step Six: The Board notifies involved parents of the results of the allegations within five days.
Step Seven: The involved parents may request a Hearing before the Board.
Step Eight: After the Hearing, the Board may affirm, reverse, or modify the determination.
Step Nine: The BOE will notify involved parents within ten days of the Board's decision and action.
Preliminary Determination
The principal must decide early in the process whether the ABR covers the allegations in the complaint. Essentially, the principal is indicating whether the complaint will proceed as a HIB complaint and will follow HIB procedures. For this finding only, the principal will assume that every allegation in the complaint is true and credible. The principal will determine whether the allegations are legally sufficient to constitute HIB. If the principal finds that the allegations do not meet the HIB definition, the principal must notify all involved parents. Involved parents include the parents of any alleged victim or alleged perpetrator.
Parents should remember that even if the allegations do not meet the HIB definition, the principal may investigate one or more Code of Conduct violations contained within the allegations.
If the allegations state a HIB complaint, the principal will forward the allegations to the ABS for investigation.
Investigation
If the principal makes a Preliminary Determination that the allegations are sufficient (if proven) to constitute a HIB violation, the ABS will conduct an investigation. The ABS may determine that the allegations are not credible or cannot be substantiated. However, the ABS may find one or more Code of Conduct violations even if the HIB allegations are not substantiated.
The ABS will forward the investigation's results to the principal, who will forward them to the superintendent.
Parental Rights During Investigation
Parents are entitled to information concerning the investigation but are not necessarily allowed to see all materials. This is because of the privacy concerns of other students. The school district is not obligated to give parents a copy of the report and cannot divulge privileged information. However, due process considerations demand that the student hear the nature of the allegations against them and respond. The school district must establish a procedure to adequately inform parents without violating privacy laws.
Parents may not decline to have their child interviewed, but it is generally up to the Board to adopt procedures for these interviews. Those procedures would include whether a parent may be present.
Family Rights and Educational Privacy Act
Under federal law, 20 U.S.C. § 1232, a school cannot divulge student information other than to a parent of their child. This includes information that would identify the student. The ABR does not expand or limit these rights and obligations. The school must keep a record of discipline, but it is up to the BOE whether to retain the entire investigation file. However, the school must comply with federal student privacy law during HIB investigations.
Board of Education
The superintendent will forward the investigation findings to the Board of Education (BOE) at its next meeting. The BOE will notify the parents involved but typically withhold information about other students.
Hearing and Decision
The parents of an alleged victim or offender may request a Hearing before the Board. This Hearing will involve an Executive Session. The Board should inform all parents of due process rights before the Hearing.
The Board will affirm, reject, or modify the earlier determination at the next meeting. The BOE must notify the parents within ten days of the meeting.
Consequences for HIB Offense
The school district may take remedial measures against the offender for a first or second offense, including suspension, counseling, or other intervention strategies. For a third offense, the principal must do a student intervention plan approved by the superintendent.
How the Lento Law Firm Can Help
The Lento Law Firm Student Defense Team can represent and advise you regarding allegations of bullying, harassment, or other Code of Conduct violations. The Lento Law Firm Criminal Defense Team can defend against juvenile charges arising from bullying allegations. While protecting your student on two fronts may seem daunting to a parent, the Lento Law Firm is experienced in both areas. We can provide uncompromising, effective representation to get the best outcome possible for NJ students. Call 888.535.3686 or provide your details online, and we will contact you.
