Harassment, Intimidation, and Bullying (HIB) Defense for New Jersey Elementary and Secondary School Students

New Jersey claims national leadership in anti-bullying measures at its elementary schools, middle schools, and high schools. And a commitment to reducing harassment, intimidation, and bullying (HIB) of elementary and secondary school students is all well and good. But New Jersey's aggressive anti-HIB measures place New Jersey elementary, middle, and high school students at special risk of undue discipline and even juvenile delinquency proceedings and criminal court charges. If your New Jersey elementary, middle, or high school student faces HIB charges, retain the Lento Law Firm's premier Student Defense Team and preeminent student defense attorney Joseph D. Lento. Your student needs skilled and experienced academic administrative representation for the best possible outcome to serious HIB allegations. Don't let your student suffer school suspension, expulsion, disciplinary placement, juvenile detention, or criminal conviction due to over-aggressive enforcement of New Jersey's anti-HIB laws, rules, and regulations.

HIB as New Jersey Law Defines It

New Jersey law gives a specific definition to school harassment, intimidation, and bullying (HIB) incidents. New Jersey schools should not pursue HIB charges against students without the allegations meeting the law's HIB definition. New Jersey's legislature, some time ago, adopted an Anti-Bullying Bill of Rights Act. The Act's Section 18A:37-14 defines HIB as written, verbal, or physical acts or gestures, or electronic communications, motivated by any distinguishing characteristic of the victim, that "substantially disrupts or interferes with the orderly operation of the school or the rights of other students." To meet the HIB definition, the acts, gestures, or communications must also have at least one of these reasonably foreseeable effects:

• physical or emotional harm to a student;
• damage to a student's property;
• reasonable fear of physical or emotional harm to person or damage to property;
• insulting or demeaning a student or student group; or
• a hostile educational environment interfering with a student's education or severely or pervasively causing physical or emotional harm to a student.

New Jersey's Expansive HIB Definition

Parents of New Jersey students facing HIB charges need to appreciate just how expansive New Jersey's statutory definition of harassment, intimidation, and bullying is. A parent's natural response to the student's HIB charge may be that the parent's student wouldn't bully, intimidate, or harass anyone. The parent may correctly trust in the student's good manners, character, and discipline. But New Jersey's HIB definition is so broad as to arguably capture virtually any interaction between students out of which a student could arguably take insult or offense. Defending HIB charges on the basis that the student's actions were not intimidating, harassing, or bullying might make sense, given a common definition of those terms. But the statute's definition isn't common. It's instead so uncommonly expansive as to make for a difficult definitional defense.

HIB Includes Words and Gestures

For example, a parent might reasonably think that bullying involves something physical. But the statute defines HIB to include more than physical assault. Spoken words can also constitute HIB, as can written notes, including emails, social media posts, and texts. HIB can even include gestures, perhaps like a thumbs down, palm to the face, roll of the eyes, or shake of the head.

HIB Does Not Require Actual Harm or Damage

For another example, a parent might reasonably think that HIB would require some actual harm to a student or perhaps some property damage. Think again. The statute instead defines HIB to include any words, gestures, or actions that substantially disrupt or interfere with student rights or orderly operations. If your student simply causes a disturbance, stepping out of line in some way, even without harming anyone or damaging anything, your student could face HIB discipline.

HIB Does Not Require Physical or Emotional Impacts

For another example, a parent might reasonably think that HIB would require some physical or emotional impact on another student. Think again. The statute instead defines HIB to include actions that students think might potentially have a physical or emotional impact, even when no impact occurs. Reasonable apprehension of potential physical or emotional harm is enough, with the harm itself. All a student needs to allege is that it looked like something bad might happen, even if nothing did.

HIB Includes Property Damage Alone

A parent might also reasonably think that HIB must affect another student's person, whether by physical assault or emotional distress. But the statute instead defines HIB to include actions that only affect a student's property, not the student's person, too.

HIB Need Not Affect an Individual Student

A parent might also reasonably think that HIB must affect another individual student. But the statute instead defines HIB to include words or actions that instead insult or demean only a student group. If a group of students takes offense at an individual student's words or actions, the individual student suffers the discipline. Student groups may thus control and discipline individual students, which almost sounds like authorized bullying itself.

HIB Need Not Involve Protected Characteristics

A parent might also reasonably think that HIB depends on race, sex, disability, or other protected characteristic motivating the wrongdoer. But instead, the statute defines HIB to include a student's reference to another student's height, weight, dress, demeanor, or any other characteristic. Anything that a student says about another student in any way, about which the other student takes insult or offense, could become the grounds for a HIB investigation and discipline.

New Jersey Anti-Bullying Act Special Requirements

New Jersey's Anti-Bullying Bill of Rights Act requires that schools treat harassment, intimidation, and bullying differently, with additional remedial and disciplinary measures than other forms of student misconduct. The Act's Section 18A:37-15 defines the core HIB program requirements. That section requires school officials to adopt an elaborate policy prohibiting harassment, intimidation, and bullying, for which the state maintains a model policy. The school must then post and publicize the policy, allowing parents to comment on it and challenge it before the district board if they believe it to be inadequate.

When an alleged HIB incident then occurs, teachers and other school staff observing or becoming aware of the incident must orally report the HIB incident to the school principal the same day the incident happens. Teachers and staff must follow up on their same-day oral report with a written report within two days. The school principal must tell the alleged victim's parents about the allegations the same day of the incident and oral report. The school principal must then initiate the HIB investigation the same day of the incident or the following day at the latest. The school's anti-bullying specialist must complete the investigation as soon as possible, no later than within ten days.

Other anti-HIB mandates in New Jersey's Anti-Bullying Act include counseling, behavioral intervention, and other progressive disciplines for students committing HIB. The school must also publicly disclose HIB incidents and the school's responses, while forwarding reports of HIB findings, responses, and remedial actions to the district school board.

New Jersey Expands and Criminalizes Its Anti-HIB Program

As if New Jersey's initial aggressive anti-HIB legislation was not enough, which the state had already claimed to lead the nation, the state legislature amended the Anti-Bullying Act in 2022 to expand and strengthen its measures. New Jersey's legislative amendments to its anti-HIB statutes significantly increase your student's risks when facing HIB charges. The legislative amendments include new HIB reporting and recordkeeping requirements and new anti-HIB enforcement options. The legislative amendments also encourage school officials to criminalize school misconduct by requiring school officials to refer HIB matters to local law enforcement to determine whether to prosecute criminal charges.

New Anti-HIB Program Reporting Requirements

New Jersey's expanded anti-HIB statutes and regulations took effect with the 2022-2023 school year. Under the new reporting requirements, staff members must use the new HIB 338 Form to submit their written reports of suspected HIB to the school principal. The legislative amendments also require school districts to place the parent or guardian HIB 338 Form online for the parent or guardian to make confidential HIB complaints. The school principal must forward completed HIB 338 Forms to the school superintendent for review and action.

New Anti-HIB Intervention Requirements

New Jersey's amended anti-HIB statutes and regulations further require school principals to impose the district superintendent's individual student intervention plan against any student who commits three HIB incidents. The principal must then revise the individual student intervention plan every time the student commits another HIB incident. Under the new intervention measures, schools will likely have little patience for repeat HIB offenders.

New Anti-HIB Measures

New Jersey's amended anti-HIB statutes and regulations further require schools to place reported findings of HIB in the student's school record for all to see. The student must submit to any behavioral intervention and counseling the school's intervention plan orders, and of course, to any suspension, expulsion, or alternative disciplinary placement the school orders. Most significantly, the new measures require the school principal to consult local law enforcement officials. Those officials then determine whether to charge the student with crimes or juvenile delinquency under the state's criminal code. One final new measure provides for civil liability for the parents of a student adjudicated delinquent for bullying. Civil liability depends only on a showing that the parents willfully and wantonly failed to supervise and control their offending student.

Anti-HIB Program Impacts on New Jersey Students

Aggressive enforcement of New Jersey's expansive anti-HIB program measures can carry drastic impacts on New Jersey elementary and secondary school students. The above measures give New Jersey school officials remarkably broad authority to charge and discipline students for perceived insults and offenses. They also change the nature of the school environment from one of learning, growth, and exploration to strict conformity with student views and preferences that school officials favor. Your student could face HIB investigation and discipline for any of these innocent-seeming actions:

• humorous texts teasing and poking fun at student groups and behaviors;
• entertaining videos of other students engaging in silly behaviors;
• playground horseplay and rough-housing with other students;
• disapproval of the actions or statements of other students;
• compliments on another student's appearance;
• expression of political views on important but controversial subjects;
• expression of religious views on core faith commitments;
• written or dramatic depictions of school fiction;
• earnest and authentic participation in school debates; or
• advice on student dress, behavior, personal hygiene, and conduct.

Discriminatory Anti-HIB Enforcement

Because New Jersey's Anti-Bullying Act defines HIB so broadly, the Act permits the school anti-bullying specialist, the school principal, and the district superintendent to pick and choose the allegedly offensive or insulting words, positions, and behaviors that they will punish as HIB. That broad discretion to selectively enforce anti-HIB measures around dominant political, ideological, and other worldviews not only chills the school learning environment. Its abuse can also lead to discriminatory enforcement. If, for instance, your student holds and expresses unusual, discrete, unfamiliar, or unpopular cultural customs, family norms, political preferences, or religious convictions, whether, in the context of academic exercises or student social interaction, your student may face HIB discipline for those views. Protecting one person or group against offense necessarily restricts and offends the views and expressions of other persons and groups. Aggressive anti-HIB enforcement by school officials on behalf of favored student groups can be very like bullying and intimidation of discrete and insular minorities in itself.

Criminalizing the School Environment

Elementary and secondary schools were once the province of wise and sensitive school teachers and building principals, where students had the liberty and grace to explore, err, and learn and grow from their errors. When New Jersey's legislature amended the Anti-Bullying Act's Section 18A:37-15.3.b(4) to require school officials to consult with law enforcement about student conduct in school, the legislature arguably criminalized the learning environment. The cited statute now requires school officials to notify law enforcement whenever a student's HIB-related behavior might run afoul of one of New Jersey's many bullying, hazing, and harassment criminal codes: "The superintendent of schools or the superintendent's designee and the principal shall consult law enforcement, as appropriate, … if the student's behavior may constitute a possible violation of the New Jersey Code of Criminal Justice[.]" The statute gives police and prosecutors the authority and responsibility to criminally charge behaviors between students within New Jersey schools.

HIB-Related Criminal Penalties

Your student could easily face criminal charges or juvenile delinquency proceedings for a HIB incident in school. Section 18A:37-15.3.b(4) of New Jersey's Anti-Bullying Act, quoted above, refers the police and prosecutors to New Jersey's criminal code. New Jersey's criminal code includes plenty of crimes with which authorities could charge a student for a HIB incident within the school setting. Police and prosecutors have broad authority to choose from among several crimes that reach school harassment, intimidation, and bullying.

School HIB as Disorderly Conduct

For example, New Jersey Criminal Code Section 2C:33-2 criminalizes disorderly conduct. The code defines disorderly conduct to include improper behavior or offensive language. Under those definitions, disorderly conduct is likely common in school settings around some activities at some times of the day, week, or year. When focusing on offensive language, the crime also mimics or closely approaches the state's HIB definition. The code classifies disorderly conduct as a petty disorderly offense punishable by up to thirty days in jail and a $500 fine.

School HIB as Harassment Crime

For another example, New Jersey Criminal Code Section 2C:33-4 criminalizes harassment, another crime closely related to HIB. Like disorderly conduct, the code classifies harassment as a petty disorderly offense punishable by up to thirty days in jail and a $500 fine. New Jersey Criminal Code Section 2C:33-4.1 separately criminalizes cyber harassment. Like ordinary harassment crime, the code classifies cyber harassment as a petty disorderly offense punishable by up to thirty days in jail and a $500 fine.

School HIB as New Jersey Hazing Crime

For another example, New Jersey Criminal Code Section 2C:40-3 criminalizes hazing, which is a classic form of school misbehavior. The code makes hazing either a New Jersey disorderly persons offense or fourth-degree offense, depending on the circumstances. The code punishes disorderly persons offenses by up to six months in jail and a $1,000 fine, or a fourth-degree offense by up to eighteen months in jail and a $10,000 fine.

School HIB as New Jersey Cyberbullying Crime

For another example, New Jersey Criminal Code Section 2C:33-4.1 criminalizes cyberbullying, another classic form of school misbehavior. The code makes cyberbullying a New Jersey crime of the fourth degree, punishable by up to eighteen months in jail and a $10,000 fine.

School HIB as Criminal Mischief

For yet another example, New Jersey Criminal Code Section 2C:17-3 makes criminal mischief anything from a disorderly persons offense up to a second-degree offense, depending on the circumstances. While the disorderly persons offense brings only a maximum of six months in jail and a $1,000 fine, the code punishes a second-degree offense with up to five to ten years in jail and a $150,000 fine.

Anti-HIB Investigation Risks for New Jersey Students

Under Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act, schools must give special attention and priority to the investigation of alleged HIB incidents. And the investigator won't be the principal or assistant principal ordinarily charged with addressing student misconduct. Under the statute, the investigator must instead be a trained "anti-bullying specialist." The specialist investigating your student will be looking for, prioritizing, and addressing HIB, rather than focusing on the broader educational interests of your student and the school community. The specialist's mission is to eradicate HIB and minimize HIB complaints. That mission doesn't account for other educational interests. It's all about the HIB, not the education and interests of your student.

Division of Civil Rights Referral of HIB Complaints

Aggressive school investigation and discipline, and criminal charges or juvenile delinquency proceedings are not your student's only HIB incident risks. Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act encourages HIB complaints to New Jersey's Division on Civil Rights. For such a referral, the offending student must have committed the HIB incident based on the victim's membership in a group protected under New Jersey's anti-discrimination law. But if a parent, student, or school official makes such a complaint, the Division on Civil Rights may investigate your student in its own proceeding.

HIB Reporting Requirements Impact New Jersey Students

New Jersey's original Anti-Bullying Act included reporting requirements. But the legislative amendments of that Act streamlined the reporting requirements. The new reporting measures ensure that the school collects, evaluates, distributes, and reports on alleged HIB incidents, creating a paper trail that can end up in your student's permanent school record. Amendments to Section 18A:37-15.3.b.(5) of the Anti-Bullying Act require the school to use HIB 338 Form and to route the completed form through the investigation, discipline, and review process. While teachers and other school staff may be the primary users of the HIB 338 Form, the school must place HIB 338 Form online for parents to make confidential HIB complaints.

These streamlined reporting requirements mean that HIB allegations against your student will show up on paper, online, and in records and files. They also ensure that the school prioritizes HIB investigations over other priority academic, behavioral, and operational matters. It may be one thing for your student to face charges of academic dishonesty, failure to progress academically, or smoking or drinking on school grounds in violation of the school's code of conduct. Those charges can certainly lead to serious consequences. But the above anti-HIB measures create an extraordinary focus on HIB allegations as if they matter well above those other important matters.

HIB Complaint Stakes for New Jersey Students

To know what you should help your student do in defense of HIB allegations and charges, you need to know the stakes your student has in HIB matters.

School Removal on HIB Charges

The first thing your student could face in a HIB proceeding is immediate suspension and removal from the school for disrupting or interfering with the school environment. Temporary emergency removal for a day, three days, or up to ten days may be something you can help your student handle. But short-term suspensions can lead to long-term suspension, expulsion, and alternative disciplinary placement if not properly handled.

School Investigation of HIB Charges

When charged in a HIB incident, your student will also face immediate investigation. The anti-bullying specialist at your student's school may or may not involve you and your student in the investigation. That question may depend on several factors. But under the state's Anti-Bullying Act, the investigation will occur as soon as possible and likely be done within ten days. And that's a very short timeframe within which to protect your student against an unfair outcome.

Distribution and Disclosure of Investigation Report

You and your student can also expect to have to deal with repeated oral and written disclosures of the HIB charges and findings. The statute requires same-day disclosure of the HIB incident to the putative victim's parents. The anti-bullying specialist must also write an investigation report for the school principal, who must forward it to the district superintendent. The superintendent will share the report and the superintendent's actions with the district board. The school community also has a right to public disclosure of HIB incidents at the school. Word is going to get around about your student's HIB matter quickly, requiring that you take discerning action.

Referral of HIB Allegations for Agency Investigation

You and Your student may also face criminal court, juvenile court, and department of civil rights proceedings. Because the Act requires school officials to inform local law enforcement and encourages referrals to the state's civil rights office, you and your student need to be prepared to address multiple proceedings inside and outside of the school.

Other Student Impacts from New Jersey HIB Charges

School HIB charges, findings, discipline, and juvenile or criminal court proceedings can impact your student in other ways. Your student could lose not only the in-school educational benefits and services but also co-curricular and extracurricular opportunities. Those losses may not seem significant, but school activities outside of class can motivate students in-class performance. They can also help your student's social and emotional development. HIB charges and discipline could also cause your student to withdraw from or give less attention to studies, resulting in poorer academic performance or even a failure to progress and graduate. Those losses can affect college and university admissions, vocational training, and employment opportunities. School HIB charges can also affect your student's relationships with friends, family members, coaches, mentors, and other supporters. Don't underestimate the impact of HIB allegations. Instead, make your best effort to help your student defend and defeat HIB charges.

Procedures for Students Facing HIB Charges

New Jersey's legislature provided protective procedures for students facing HIB charges. The initial phase of a HIB investigation may or may not offer the accused student significant protection. The school's designated anti-bullying specialist must promptly investigate HIB reports. That specialist may or may not contact you and your student. You and your student may, in the worst case, learn of the HIB investigation and results only after the specialist provides the school principal with the report.

You and your student may also not have any involvement in how the school handles the investigation results. Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act requires the school principal to promptly forward the report to the school superintendent, who decides, without a parent or student involvement, whether to discipline. The superintendent also decides whether to do other things beyond your student's discipline to prevent future HIB incidents. The superintendent reports the discipline and any other actions to the school board by the next board meeting. A lot can happen before your involvement. The following steps, though, give you and your student the opportunity to challenge the HIB allegations and any findings and discipline.

Notice to Parents or Guardians of HIB Charges

You and your student will learn of the HIB investigation, results, and discipline after the above initial investigation and response steps. Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act requires school officials to notify the parents or guardians of the involved student after the superintendent reports to the board on the decision, discipline, and action. The parent or guardian notice must include the investigation's nature and findings and whether the school is imposing discipline and providing services. Under Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act, the school must provide that parent or guardian information no more than five school days after the board receives the decision. You may not learn much of anything until after the decision. But you should then learn much of what you need to know to evaluate and challenge the decision.

Formal Hearing on HIB Findings and Discipline

Your first statutory opportunity to challenge the school's HIB findings and discipline occurs after the decision when the school has notified you of the results. Under Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act, you and your student may then demand that the board hold a formal hearing reviewing the discipline decision. The board then has ten days within which to hold the hearing. The statute says nothing about the board's conduct of the hearing other than that the hearing must be confidential and that the board may hear from the anti-bullying specialist. The board then has until the next board meeting after the hearing to issue its decision. The board may do as it best determines. Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act authorizes the board to "affirm, reject, or modify the superintendent's decision."

Appealing HIB Discipline

You have a second opportunity for review of a HIB discipline decision after the board hearing. If the board affirms your student's discipline, Section 18A:37-15.3.b.(6) of New Jersey's Anti-Bullying Act allows you to appeal the board's decision to New Jersey's Commissioner of Education. The statute allows you ninety days within which to appeal. An appeal is a chance for an independent review of the discipline decision. New Jersey's administrative code and rules determine the procedures for your appeal. Administrative appeals generally must show special grounds for relief. Those grounds may include procedural errors affecting the outcome, violations of due process rights, and bias or conflict of interest on the part of the investigator or decision maker.

Attorney Defense Representation on HIB Charges

Given your student's high stakes in the outcome of New Jersey elementary or secondary school HIB charges, your student needs skilled and experienced attorney representation to defend those charges. The Lento Law Firm's Student Defense Team and national student defense attorney Joseph D. Lento offer your student premier skills and unparalleled experience for your student's best possible outcome. A team of skilled academic administrative professionals will discern and implement a strategic approach to HIB charges, designed to achieve your student's primary goals to continue in school with a clear record and good reputation. Experienced academic administrative representation also brings deep knowledge of academic administrative law and procedures, including the ins and outs of New Jersey's Anti-Bullying Act and its enforcement procedures.

HIB Defense Representation for Early Informal Resolution

Your retained Student Defense Team can first notify school officials of your student's representation. That notice ensures that school officials respect your student's rights and interests. Your retained Student Defense Team may also be able to arrange an early informal resolution conference. Informal resolution of HIB charges can spare distracting, burdensome, and embarrassing formal proceedings. Informal conferences can also produce compromise resolutions that achieve both the school's interest and your student's goals without sacrificing one for the other.

HIB Defense Representation for Formal Resolution

If your student's matter proceeds through formal procedures, your retained Student Defense Team can get school officials to disclose the nature of the charges and the evidence against your student. Due process requires fair notice. With that notice, you and your Student Defense Team can evaluate the best course of action to achieve your student's best outcome. The Student Defense Team can also help you identify, present, and advocate evidence that could exonerate your student on the HIB charges and mitigate potential penalties. The Student Defense Team may be able to provide the school's investigating specialist with that evidence before the specialist completes the report, provide the district superintendent with that evidence before the superintendent makes findings and imposes discipline, or provide that evidence to the board before it accepts and approves the superintendent's decisions.

HIB Defense Representation for Review and Appeal Resolution

If the superintendent has already imposed discipline, your retained Student Defense Team can help you invoke the board's formal hearing review. Your retained Student Defense Team may be able to participate in the board's formal hearing or present evidence and arguments in writing for board consideration before it decides. Your retained Student Defense Team may also help you appeal any adverse board findings and discipline to the state's Commissioner of Education. Administrative appeals of that type follow sophisticated rules and generally require skilled and experienced administrative representation.

Alternative Special Relief from HIB Discipline

If you and your student have already exhausted all HIB procedures without relief, and your student continues to face school discipline, your retained Student Defense Team may be able to negotiate alternative special relief through the district's general counsel, outside retained counsel, or other oversight channels. School districts rely on oversight officials to ensure that decisions affecting substantial student rights and interests comply with the law and do not subject the school to liability and regulatory risks. The Lento Law Firm's Student Defense Team has the reputation and network of contacts to gain the attention and trust of oversight officials for such negotiations. Reinstatement may be possible even if the school has already removed your student and concluded all proceedings. Your retained Student Defense team may also help you evaluate and pursue litigation or regulator relief outside of the school district.

Criminal Defense Representation for HIB-Related Charges

If your New Jersey student also faces juvenile delinquency proceedings or criminal court charges, your student will need attorney representation for that other proceeding. The Lento Law Firm's Student Defense Team can provide the skilled and experienced criminal and juvenile defense that your student would need for that other proceeding. Having a single Defense Team to handle both the school administrative proceeding and the criminal or juvenile proceeding ensures the coordinated and efficient handling of both proceedings.

Do not retain an unqualified criminal defense attorney to defend your student in school HIB administrative disciplinary proceedings. Doing so risks presenting a poor and inadequate defense. Most criminal defense attorneys focus their practices on criminal court and thus lack academic administrative skills and experience. Instead, retain the Lento Law Firm's Student Defense Team for the dual criminal court and academic administrative skill and experience that your student needs.

New Jersey Student HIB Defense Available

Trust the Lento Law Firm's Student Defense Team and premier student defense attorney Joseph D. Lento with your New Jersey elementary or secondary school student's HIB defense. The Lento Law Firm Student Defense Team has helped hundreds of New Jersey students and other students across the country successfully defend school disciplinary charges. The Lento Law Firm's Student Defense Team has the special skills and experience your student may need for a dual administrative and juvenile or criminal proceeding. The Lento Law Firm's Student Defense Team can help protect your student's rights while giving your student the best chance for the best possible outcome. Call 888.535.3686 or go online now to retain the best available school discipline defense for New Jersey students facing HIB charges. Your New Jersey elementary or secondary school student's future is worth protecting against HIB charges.