A Capehart Scatchard Blog

How Has the Anti-Bullying Bill of Rights Act Affected the Litigation Environment?

By on April 17, 2018 in Students with 0 Comments

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

It is almost hard to believe we are now in the seventh school year since the New Jersey Anti-Bullying Bill of Rights Act (“ABBRA”) took effect.  At the time of the statute’s passage on January 5, 2011, many speculated that the wave of investigations into harassment, intimidation, and bullying (“HIB”) that were soon to be conducted in high numbers in the early years of the statute’s implementation would also be accompanied by a large and continuous wave of HIB litigation.  Some even opined that the law would spawn a new cottage industry of attorneys specializing in suing school districts over allegations of HIB, similar to the large volume of special education litigation, further draining already underfunded public schools of precious resources.  Now, seven years on, it seems safe to say that this concern has not materialized.

So what has been the effect of the ABBRA on the litigation environment for public school districts?  While HIB cases do occur on a regular basis, their frequency and degree of litigiousness do not generally approach the level of litigation in some other areas affecting the schools, such as special education, as those of us who have been representing public schools since the enactment of the statute can attest.  Each month, incidents of HIB are reported to boards of education in nearly every public school district in the State, whether determined to be founded or unfounded, as a result of the statute’s investigatory process.  In the vast majority of these cases, parents accept the investigation findings and decline to pursue the matter any further.

There are several reasons why this is true.  First, as in all cases, standard of review is key.  In the first several years of HIB jurisprudence, the early case law made it clear that the same deferential standard of review applied to all other discretionary actions of boards of education, including student disciplinary matters, would be applied to the review of a board’s determination on HIB matters.  In order to overturn a board’s finding on the substantive issue of whether or not any given incident falls within the statutory definition of HIB, an administrative law judge (“ALJ”) must conclude that the board’s determination was “arbitrary, capricious, or unreasonable.”  This is a deferential standard of review, which the Commissioner has adopted in the context of HIB cases.  Its continued application has likely given pause to potential litigants in assessing their chances of realistically getting an ALJ or the Commissioner of Education to overturn the collective judgment of their local officials on the school board concerning matters within their purview in overseeing the schools.

Second, in enacting the ABBRA, the Legislature wisely chose not to include a fee-shifting provision in the statute.  As a result, there is no mechanism to enable parents’ attorneys to build a practice solely by targeting cases of HIB in the public schools, as even victorious litigants pursuing HIB claims will be responsible for their own legal fees from administrative proceedings involving HIB matters.  Yet, attorneys continue to find creative ways to utilize the HIB statute to serve litigation ends for claims being pursued under other statutes that do provide for fee-shifting.  Two common examples are special education claims under the Individuals with Disabilities Education Act (“IDEA”) and claims under the New Jersey Law Against Discrimination (“NJLAD”), both of which contain fee-shifting provisions.

Many school districts have encountered parents who appear to be pursuing allegations of HIB involving their child solely for purposes of attempting to leverage their position in what is, in actuality, a special education dispute.  For example, it is not uncommon for a special education parent to pursue allegations of HIB as a means of arguing that the in-district program their child is attending is inappropriate for the child, because it cannot be made safe, and an out-of-district placement is therefore warranted.  In other cases, parents may be contemplating filing a civil suit in Superior Court under the NJLAD, seeking monetary damages on the basis of alleged inaction by the school district in response to their reports of HIB involving a child in a protected class.  In those situations, the parents may have already retained counsel and may actually be hoping that the district mishandles the HIB investigation in order to build a stronger factual predicate for their NJLAD suit.

In either scenario, strict adherence to the investigatory requirements of the ABBRA is the best shield the district can use to protect itself from potential liability.  Where a district is able to show that it appropriately investigated HIB allegations, reached a reasonable determination as to whether the conduct constituted HIB, and the matter was handled appropriately in terms of effectuating discipline or other consequences, the district will have laid a solid foundation for defending not only its HIB determination, but other potential related litigation.  Occasionally, parents will later file for due process or initiate a civil suit over HIB matters that they did not challenge through the administrative appeal process before the Commissioner, or even appeal to the board of education level.  Where this is the case, ALJs have recognized that a parents’ lack of pursuit of HIB charges before the Commissioner can undermine the genuineness of later attempts to reframe their HIB claims under another statute that provides for fee-shifting.


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