Magazine | December 19, 2011, Issue

The State Can Bully, Too

A well-intentioned New Jersey law does more harm than good

In September of last year, Rutgers University freshman Tyler Clementi jumped off the George Washington Bridge and fell to his death. The reason for his suicide, it quickly became clear, was the relentless bullying he had suffered at the hands of his college roommate — bullying that included surreptitiously videotaping Clementi’s kissing another man in the dorm room and then streaming the video online for others to see. Parents of other bullied students, as well as the gay-rights group Garden State Equality, pressured the New Jersey government to do something.

And so it did, with the Anti-Bullying Bill of Rights. The idea was to force administrators at K–12 public and charter schools to take bullying seriously. Republicans and Democrats alike loved it: It passed the state’s house and senate with a total of one “no” vote and a few abstentions, and Gov. Chris Christie signed it on January 5 of this year. But between the law’s vague language and public schools’ penchant for bureaucratizing small matters, the act has turned into a case study of how not to combat bullying. Other governments should take note of New Jersey’s experience — and be mindful of the pitfalls of taking over duties that have traditionally resided with local governments.

The law went into effect only in September, but already the local papers are filled with anecdotes about schools’ overreacting to minor incidents and being required to take costly measures. When one teacher overheard a student call his friend a “retard,” school officials launched a full investigation that included meetings with both students’ parents. A principal reports dealing with ten to 15 “bullying” incidents every day, very few of which are serious enough to result in actual disciplinary measures. Another administrator says that an investigation into a bullying incident that happened over the summer, off of school grounds, took nine hours.

Reading the law and the official guidelines provided by the New Jersey government, one is hardly surprised that officials have been going overboard with their efforts. All in all, schools’ anti-bullying programs must satisfy an 18-page “compliance checklist” of “required components.” The legislation requires a lengthy and ridiculous process following every alleged bullying incident.

Schools are required to adopt a definition of bullying at least as strict as the state’s own:

any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated [by any real or perceived characteristic including race, disability, etc.] . . . that takes place [on or, when “appropriate,” off school grounds], that substantially disrupts or interferes with the orderly operation of the school or the rights of other students and that:

a. a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student’s property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;

b. has the effect of insulting or demeaning any student or group of students; or

c. creates a hostile educational environment for the student by interfering with a student’s education or by severely or pervasively causing physical or emotional harm to the student.

If an incident meets that definition, the official who learns of it has to inform the principal the same day and file a written report within two school days. Once a report has been filed, it goes to the “school safety team,” a group chosen by the school district to review complaints and recommend disciplinary action. This team investigates the incident and releases a final report within ten days. The results are then reported to the superintendant, the board of education, and the parents of the children involved. The board makes the call as to the proper response, but its rulings can be appealed to the commissioner of education.

As the anecdotes recounted above show, in addition to being imprecise with their language, the law’s drafters underestimated public-school administrators’ love of bureaucracy — or at least their fear of the lawsuit that will ensue when a bullying incident that didn’t receive a full investigation turns tragic. Supporters of the initiative aren’t entirely wrong when they say that the administrators who are having the most trouble should head to the English department for lessons in reading comprehension. “We used terminology that says ‘substantially disrupt or interfere’ — that doesn’t mean a child says your shirt’s a bad color,” says state senator Diane Allen, a Republican cosponsor of the law. “We’re talking about the kind of bullying and harassment that disrupts the functioning of a school or creates a hostile environment.”

#page#Further, despite requiring school districts to take costly measures — from diverting precious teacher hours to the “school safety team” to training all personnel who interact with children, including bus drivers — the state government gave no extra funding. Allen points out that the required personnel can be drawn from current employees, and that while schools have to implement new programs, the materials for those programs are available for free online. “Some schools are trying to make this into something of great expense and great time spent, with more jobs and so on, but I think that if you decide to make it work and put children at the center, you can do it without great expense,” she says. That may well be true — but given how cash-strapped all levels of government are, not to mention how much public-school teachers love any excuse to call for “more [union] jobs,” it seems more than a little unfair for the state government to give additional tasks to school employees without funding to match.

The Garden State’s experience is especially noteworthy because statewide anti-bullying efforts have swept the nation and are only becoming more forceful. While New Jersey’s recent efforts are widely considered the strictest in the nation, all but three states have some kind of anti-bullying law, and one of the holdouts, Michigan, is considering one. California and Colorado enacted new legislation this year.

Unsurprisingly, the federal government increasingly sees a role for itself in standing up to bullies as well. As I write this, Obama-administration officials are meeting with concerned citizens at a bullying-prevention summit in Manhattan to discuss new statistics showing that Asian and Muslim students are disproportionately likely to be targets of bullying. Earlier this year, the president endorsed the idea of federal anti-bullying legislation; Sen. Al Franken (D., Minn.) has introduced a bill that would make this a reality and includes specific protections against bullying based on sexual orientation.

Which raises another issue: When a single policy governs all behavior at all public schools, it risks violating the free-speech rights of students and being struck down in court. In most schools, if one student calls another a “fag,” the teacher will reprimand the bully and perhaps send him to the principal’s office; but if a student expresses the view that homosexuality is wrong, the teacher might encourage a class discussion. When a single law governs both cases, its wording must help teachers make the same commonsense distinction — if it protects bullying, it has failed, and if it infringes free speech, it is unconstitutional. Michigan’s bill has been held up thanks to a debate over a provision protecting alleged bullying that stems from “a sincerely held religious belief or moral conviction.” Liberals’ assertion that “religious tormentors” don’t deserve an exception has some merit — but an explicit recognition of free speech is most definitely needed, considering the damage to free speech that “hate speech” laws, the adult version of anti-bullying laws, have done in Canada and Europe.

There is also the question of whether centralized state control, let alone federal involvement, is even needed in this area — yes, some schools do a poor job of policing bullying, but it might be better for parents to take their concerns directly to their school boards than for distant legislators to impose a policy on every district in the state. Allen says that schools ignored New Jersey’s previous anti-bullying law, which gave schools guidelines but did not force any policies on them. But nonetheless, is that not a problem to be addressed, by parents and other local residents, in each school individually?

In New Jersey, there’s plenty of blame to go around: At the very least, state lawmakers should have used clearer language and required a less elaborate investigation process, and school administrators should read the law much more narrowly. But for the rest of the country, the lessons are simple: Schools should make more of an effort to combat bullying, and higher-level governments should tread lightly when taking over duties that have traditionally been handled locally.

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