• OT June July 2013
  • Legal Corner

    Not All Forms of Conflict Between Students Meet the Definition of Bullying


    It is now almost two years since the Anti-Bullying Bill of Rights Act became effective. Since the amended law, N.J.S.A. 18A: 37-14, et seq., was implemented, we are continually learning how to distinguish between acts of harassment, intimidation and/or bullying (HIB) and student conflict or misbehavior which does not constitute HIB. A recent decision by the Commissioner of Education is very instructive in this regard. In J.A.H., on Behalf of the Minor Child C.H., v. Pittsgrove Township Board of Education, C. #152-13 (April 25, 2013), the Commissioner overturned the board’s determination that a student’s actions met the definition of HIB.


    In Pittsgrove, the board sustained HIB charges against C.H. for an incident in which C.H. stuffed a crumbled piece of paper down the sweatshirt of another student.  In the district’s view, C.H. intentionally antagonized the other student and, thus, disrupted the educational environment for that student and caused the victim emotional harm. The incident in question occurred in a classroom. The classroom teacher also reported that, prior to the incident, she had noted a history of the two boys quarreling, and that C.H. was "picking on" the other student. The board agreed with the superintendent’s recommendation that the paper stuffing was a HIB incident.


    In April, the student, who was the victim of the paper stuffing, reported a HIB incident against C.H.  The HIB specialist found that the April incident did not rise to the level of HIB. In May, C.H. filed another HIB charge against the other student. The May incident was not found to be HIB.


    The administrative law judge (ALJ) determined that the paper shoving incident was not HIB.  In so doing, he emphasized that the following elements of the definition of HIB contained within N.J.S.A. 18A: 37-14, et seq. are:

                (1)        the act must be motivated either by an actual or perceived characteristic such as race, color, religion, ancestry, national origin, gender, sexual identity or expression, or a mental, physical, or sensory disability,  or other perceived characteristic;

                (2)        the act must substantially disrupt or interfere with the orderly operation of the school; and

                (3)        the act must create a hostile educational environment.


    The ALJ also referred to the Department of Education’s Guidance for Schools on Implementing the Anti-Bullying Bill of Rights Act dated December 2011, which emphasized that conflict is a mutually competitive or opposing action. The Guidance explained that bullying is one-sided where one or more students are the victim of another’s aggression which is intended to physically or emotionally hurt the victim.


    The ALJ noted that, here, the record confirms that there was an ongoing conflict between the boys. The ALJ was convinced that boys’ actions were not motivated by any actual or perceived characteristic. He emphasized that the teacher’s narrative concerning the February paper shoving incident noted that the boys were constantly quarreling. The teacher simply perceived C.H. as the stronger or more dominant actor. In the view of the ALJ, paper shoving was a common and immature prank. It is not malicious behavior, but still remains unacceptable. C.H. also recounted that the other student often picks on him – he pulls his papers out, makes noises, and annoys and distracts C.H. The ALJ emphasized that the poor behavior of the students was mutual. Accordingly, based on the factual record, the ALJ concluded that there was certainly ongoing conflict between the students but it was not HIB, because it did not contain the more serious aggravating elements. The Commissioner affirmed the ALJ’s decision.


    This case is helpful in deciphering acts which are examples of poor behavior that require disciplinary intervention but, yet, do not rise to the level of HIB. It is also important to note the emphasis placed here on the Department of Education’s Guidance document not only for its very mention, but also because it is far more expansive than the statutory definition.


    Although ultimately there was a determination that the action complained of was not HIB, it is still incumbent upon districts to follow the prescribed process for HIB suspected incidents and perform the requisite investigation to support the district’s determination. Whenever an HIB issue arises and there is some lack of clarity, it is prudent to contact the board attorney.