Can lawyers in Atlantic City solve the "bullying crisis" in New Jersey schools?

At today's New Jersey State Bar Association Annual Convention, I spoke (along with two other lawyers) on the topic of “Harassment, Intimidation, and Bullying”, aka "HIB", in public schools in New Jersey. Anyone who was a student, has been a parent or has worked with children has their own personal experiences and thoughts on bullying. This is why I believe bullying should be combatted by common sense and existing school codes of conduct. As often happens, Trenton reacts to the newest frenzy (in this case caused by the Tyler Clementi tragedy), and enacts legislation that may be good for lawyers, but perhaps not so good for everyone else.

At today's seminar, I discussed my experience that after bullying was "defined" by the Department of Education to basically mirror NJ Discrimination Laws, the number of complaints increased exponentially. The panelists were in agreement that the HIB law has many problems, including the fact that schools are obligated to engage in long and extensive investigations for any "bullying" issue, which can turn trivial events into major life events for the students involved. This is especially significant for youngsters. You can imagine how a second grade classroom is turned upside down when what might have been a one day occurrence results in repeated interviews of the entire class.

I was pleased to be able to discuss today a long-held pet proposal that the HIB law should include a mandatory requirement that school districts offer mediation to the parents of HIB victims (as an alternative to the prolix and often counter-productive “HIB investigation” legal requirements). In sum, I think reasonable individuals with interest in the education field will agree that it is unfair to parents of a bullied child to be faced with the Hobson’s Choice of making a complaint about the way their child is being treated followed by the mandatory full-blown investigation (which almost always involves interviews with fellow students), or not complaining at all. Are the rights of such parents actually being trammeled under this law in that a complaint MUST result in the full-blown investigation? Why can’t a parent in this situation ask the school district to facilitate a meeting with the parents and the accused so as to at least attempt to work out a mediated solution?

Thus, it would appear to make good sense to engraft onto the existing law a requirement that school districts offer to the parents of a bullied child the option of mediation (in lieu of the full investigation). If mediation is not successful, the full panoply of legally mandated investigative procedures can be followed at that point. A requirement to offer mediation would seem to make good sense for all concerned.

For what it’s worth, the audience at the seminar seemed receptive to the idea, and everyone seemed engaged during the attorneys’ presentation (at least there was no audible snoring!). We hope that proposals such as a mandatory proffer of mediation to HIB victims in a public school setting will be given serious consideration in Trenton, particularly in light of the expanded definition of HIB about to be implemented, which expansion will likely result in many more student conduct situations being deemed as “HIB”, which in turn will result in many more hours spent by school administrators following the statutory HIB investigative procedures. Even if my mediation idea goes nowhere, at least my managing partner Jonathan Cohen knows I met my speaking quota for the month!

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