- What does the law say about HIB investigations and how they should be conducted?
First and foremost, the law requires that HIB investigations should be conducted when bullying is reported or suspected. Very often, no investigations are conducted at all. And when those investigations are conducted, they have to be governed by protocols that the school districts are required to adopt.
- What do schools do wrong with HIB investigations?
Some schools will avoid conducting investigations because they have to report to the state, and they want to keep their numbers down. Others will use HIB investigations to address conduct that clearly is not bullying, and was not intended to be addressed by the ABR.
- Why is the foundation conducting this investigation?
We’ve been made aware of numerous incidents throughout New Jersey where the conduct of school officials has compromised the legal rights of children. In some instances, flagrant bullying is not investigated. In others, the ABR is used inappropriately.
- What are you hoping to achieve?
We believe that bringing the facts to light will improve the conduct of school officials. In science, it’s called the “observer effect.” That is, simply observing a situation or phenomenon necessarily changes that phenomenon.
- Who is John Rue?
He is a co-founder, the President, and General Counsel. Innisfree has a five member board of trustees, the majority of whom have no relationship to me.
- I thought John Rue ran his own law firm. Is there some conflict between doing work for both Innisfree and the law firm?
No, there’s no conflict. We ensure that no conflicts arise by memorializing any work that my law firm does for Innisfree in a written agreement. And those written agreements are negotiated and approved by the Board’s Conflicts Committee, and the work is overseen by Innisfree’s designated OPRA Project Manager.
- Are you going to bully school districts into settling with you by bringing never-ending OPRA cases?
Of course not. School districts who end up defendants in lawsuits brought by Innisfree are not victims, they are volunteers. No school district will ever be sued by Innisfree if its response to our OPRA requests comply with the law, and do not attempt to hide behind the pretext of protecting student privacy.
- What does the ABR prohibit?
The ABR doesn’t easily boil down to a soundbite. But in (imprecise) lay terms, the ABR prohibits bullying, and requires an investigation following certain procedures when bullying is reasonably suspected or reported.
- What is “bullying?”
Again, no easy soundbite here. But the key elements of bullying conduct are
- A gesture, physical act, or communication
- That is motivated (or reasonably perceived as motivated) by a “distinguishing characteristic,” such as race, religion, disability status, gender, sexual preference, and so on
- That takes place on school property, or off campus in certain circumstances
- That substantially disrupts the operation of the school or the rights of other students, and
- A reasonable person should know will be hurtful, or
- Has the effect of insulting or demeaning any student or group of students, or
- Creates a hostile education environment for a student.
- Are you saying school officials are incompetent?
Absolutely not. Education disputes have no bad guys. People who work for public schools are almost all people who could make more money doing something else, but went into education because they wanted to make a difference. But they have a lot of pressures pulling on them in different directions. When we advocate for kids, our intention is to increase the pressure in a particular direction.
- Are you being too hard on school officials?
Not at all. In most cities and towns in New Jersey, the school board budget is considerably larger than the budget for all the other elements of local government combined. They have the resources to do the right thing. We expect no more, but will accept no less.
- How are schools supposed to balance free speech with HIB prevention?
Carefully. It’s not easy. But it’s their job to balance both, and they have to do it.
- Is the ABR constitutional?
That question has not yet been decided by a court. But it may well be vulnerable to such a challenge, especially in instances where the ABR is the basis for punishing speech in which the harm caused was unintentional or unforeseeable, or where the sole basis for punishing a speaker is because people found the content “offensive.”
- What should parents do if their children report that they have been bullied?
They should report it to the school, following the procedures that should be posted on the school district’s website. And during Innisfree’s investigation, they should report it to Innisfree. We are in the process of adding a link on our website for people to post their stories. And if parents are dissatisfied with the result of reporting bullying to the school, if the issue is important enough, they should contact an education attorney.
- What are best practices for school officials?
The state provides a great deal of material for school districts. We have no reason to believe that the state’s materials are inappropriate or insufficient. Also, Innisfree has a close relationship with Garden State Equality, which provides training to school districts in anti-bullying compliance.
- What happened in Bloomfield that gave rise to this investigation?
Innisfree was informed that a child who is gender non-conforming was bullied in multiple instances. The school’s response was insufficient to solve the problem. Eventually, the parents had to move to another town for the sake of providing a tolerant environment for their child.
- What happened in Hackettstown that gave rise to this investigation?
The teacher of an English class that was reading a play about police misconduct asked for volunteers to read the parts, including the part of the “dirty cop.” A kid volunteered by saying “I’ll read the pig.” The teacher reported her for HIB misconduct, in part because another student in the class (who was not in the room at the time) is the child of a police officer. The “investigation” consisted of a forty five minute session between the anti-bullying coordinator and the principal on one side of the table, and the seventeen year old kid on the other side, during which the adults berated the student for the use of the word “pig” to describe the cop. During this session, the adults asked the student (who is bi-racial and openly gay) how she would like it if they called her a “nigger” or a “fag.” The kid said she wouldn’t like it at all. But the adults continued to use the epithets. Eventually, the kid was found to have engaged in bullying conduct. Since the incident, the student has been receiving home instruction.
- What happened in Sayreville that gave rise to this investigation?
After school hours, and off-campus, a child re-posted to her Instagram account a picture of a friend from another town who had posted a non-public picture of herself wearing a mud mask, with the caption “when he says he only dates black girls.” Pursuant to an investigation, the Sayreville girl (who had only reposted, and only off hours and off campus) was found to have engaged in “bullying” conduct. The girl’s parents are challenging this finding through the office of the Commissioner of Education. Because they cannot afford counsel, they are representing themselves (with pro bono assistance from an attorney behind the scenes).
- Where is the investigation heading after these three towns?
Innisfree plans to focus first on school districts about which we have received reports of school district misconduct in the ABR context. We will then move on to school districts that we know to have engaged in “scorched earth” litigation tactics with parents in any context, whether bullying or special education or some other area, because we consider this to be a “red flag” regarding a district’s general legal compliance. Examples of these “red flag” districts are Montclair, Jackson, Westwood, and Old Tappan. After that, we will start with Essex County (where Innisfree is located) and move out from there.