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  • Beth Finkelstein, Esq.

  • School Districts Have an Obligation to Report Harassment, Intimidation and Bullying Incidents to Law Enforcement if the Underlying Conduct Could Constitute a Crime

     

    School districts have had time to adjust to the added requirements of the Anti-bullying Bill of Rights Act which was adopted in 2010.1 For the most part, the mandated process is largely an internal one, eventually resulting in a finding of whether or not harassment, intimidation and bullying (HIB) has occurred. In the past two years, there appears to have been a spike in hate or bias incidents. National data may not be definitive because, although the F.B.I. releases annual statistics on hate crimes, not all incidents are reported to the F.B.I. Anti-Muslim crimes showed the most significant increase last year with a 67 percent rise. In contrast, anti-Semitic crimes rose nine percent, and anti-black crimes rose eight percent.2           

    In New Jersey, some bias incidents have occurred in public schools. For example, in May 2016, several students in one district made social media posts involving black-face and anti-Semitic themes. The district reported that it was using its student code of conduct and restorative-practice strategies to help students recognize and address this behavior.3 At another high school, a student was suspended after posting a racially charged picture on social media the day after the presidential election. The photo depicted black students waiting in line in the cafeteria with a caption stating “Last Free Meal.” District administration reported the incident to the local police.4  Finally, more recently, a superintendent of schools reported that his male basketball players were subjected to racial slurs such as “ashy knees” and “build the wall” by some students at a neighboring high school.5 

    Districts required-HIB policies deal with the majority of HIB incidents that occur in the public schools. However, with what appears to be an increase in bias-related incidents, school districts also need to be mindful of requirements contained within the Uniform Memorandum of Agreement Between Education and Law Enforcement Officials (MOA),6 that require school district officials to report HIB incidents that can also be crimes to law enforcement. The MOA recognizes that HIB, itself, does not constitute a criminal offense, unless the conduct could constitute an offense under the New Jersey’s Code of Criminal Justice. But in that event, the incident must be reported to law enforcement. The MOA specifies mandatory referrals whenever, in the course of their employment, a school employee has a belief that:

                (1) a violation of the Comprehensive Drug Reform Act has been committed; or

                (2) a firearm has unlawfully been brought to school grounds, or that any student or person is in unlawful possession of a firearm (on or off school grounds), or that a student or other person has committed an offense with or while in possession of a firearm; or

                (3) anyone has threatened, is planning, or otherwise intends to cause death, serious or significant bodily injury under circumstances under which a reasonable person would believe that such threat is genuine; and/or

                (4) a crime involving sexual penetration or criminal sexual contact has been committed on school grounds, or by a student against a student during school operating hours or during school- related functions or activities.7

                In addition, bias intimidation crimes are specifically covered under N.J.S.A. 2C:16-1.  Such crimes focus on conduct motivated by a victim’s race, color, religion, gender, disability, sexual orientation or expression, national origin or ethnicity.  An HIB act can become a crime when a person commits, or attempts to commit, or conspires with another to commit, or threatens the immediate commission of an offense with:

                (1) the purpose to intimidate an individual or group of individuals due to bias, based on the above categories;

                (2) knowing that the conduct constituting an offense would cause individuals of a particular group based on the above categories to be intimidated; or

                (3) under the circumstances that caused a victim so intimidated to reasonably believe that (a) the offense was being committed to intimidate the victim or any entity in whose welfare the victim is interested due to race, color, religion, gender, disability, sexual orientation, gender identity, or expression, national origin, or ethnicity; or (b) the victim or the victim’s property was chosen as a target of the offense due to the above.8

    In addition to the MOA above, N.J.A.C. 6A:16-6.3(b)2(e) specifically requires school employees to notify the principal and chief school administrator when, in the course of their employment, they have reason to believe that a bias-related act has been committed, or is about to be committed by a student on or off school grounds, whether or not committed during school hours.  The same is true if an employee believes that an enrolled student has been, or is about to be, the victim of a bias-related act on or off school grounds or during school hours. The chief school administrator does have an obligation to report information of this kind to the county prosecutor or another law enforcement official designated by the county prosecutor. The same reporting obligation exists where a bias-related act that has been committed, or is about to be committed, involves physical violence or threat to someone’s life. 

    School officials also have the obligation to report “cyber-harassment.” Cyber-harassment can be committed when a person making online communication with the intent to harass someone: (1) threatens to inflict injury or physical harm to person or property; (2) sends or posts lewd indecent or obscene material about a person; or (3) threatens to commit any crime against the person or their property.9 

    In addition to providing training on district HIB procedures, it is also advisable to train all district staff to be mindful of the possibility of the commission of a bias crime and to be prepared to report such incident. In the event your district is confronted with such an incident, it is always best to consult the board attorney for advice and assistance.

     

    1. N.J.S.A. 18A:37-13, et seq.
    2. “The Scope of Hate in 2016,” New York Times, Web. 28 December 2016; https://www.nytimes.com/2016/12/28/opinion/the-scope-of-hate-in-2016.html
    3. “South Orange-Maplewood Super Speaks About Racist Student Social Media Posts,” Orange Patch, Web. 17 May 2016; https://patch.com/new-jersey/southorange/south-orange-maplewood-super-speaks-racist-student-social-media-posts 
    4. “High school student suspended for posting racially charged photo after election,” NJ.com, Web. 21 November 2016; http://www.nj.com/monmouth/index.ssf/2016/11/high_school_student_suspended_after_offensive_post.html
    5. “‘Build the Wall,’ Dover Superintendent ID’s Jefferson Hoops fans’ alleged racial slurs,” NJ.com Web. 30 January 2017; http://highschoolsports.nj.com/news/article/3013220963860827023/build-the-wall-dover-superintendent-ids-jefferson-hoops-fans-alleged-racial-slurs/ 
    6. http://www.state.nj.us/education/schools/security/regs/agree.pdf (2015 revisions).
    7. Id. at 46-47.
    8. MOA at 48-49.
    9. MOA at 50-51.