In 2011, after media coverage of a string of teen suicides across the country and a report that New Jersey’s school bullying rates were higher than the national average, the State passed the Anti-Bullying Bill of Rights Act, which reformed its prior-and notably weaker- 2002 legislation. The Act, which defines bullying as the creation of “a hostile environment,” extends to all bullied students whether or not they belong to a constitutionally protected class (such as being a racial or religious minority), and applies to bullying behavior that takes place at or near a school, on school buses, and online.
Besides making anti-bullying and suicide prevention training and resources readily available (with an anti-bullying specialist present at each school), the law creates a mandatory bullying reporting deadline, grades each school on its safety measures, and requires that all schools create anti-bullying rules and procedures. While the Act is one of the strongest anti-bullying laws in the country, it cannot help students taught at private schools.
Unfortunately, for those students, bullying prevention isn’t always a top priority. Studies by the National Center for Education Statistics have reported that bullying at private schools occur less frequently, thanks to the smaller student-teacher ratio and access to greater funds. But for those students who are bullied, where they go to school largely determines if there will be help. Anti-bullying measures implemented at private schools vary greatly in detail and scope. Many model their rules on the state’s standards, with some mirroring the Act’s language in whole. Others, however, aren’t so forthcoming with information to parents (which is sometimes due to a lack of reported bullying or a desire to hide the less-savory aspects of school maintenance from prospective parents). When bullying occurs at private schools with less-than-acceptable anti-bullying policies, parents can feel as powerless as their child.
Because private schools aren’t technically bound by the Act, failure to meet its requirements doesn’t lead to a legal claim. On the other hand, if a school has an anti-bullying policy in place and fails to meet its own standards, then parents may have a claim for breach of contract. If parents and students are required to sign a contract with the school agreeing not to participate in harassment or intimidation, a breach of contract claim based on failure to punish the bully (as per the school’s policies) may also exist. Additionally, private schools can be held liable for discrimination if the school fails to provide adequate measures of addressing bullied students under a protected class (for example, physical or emotional handicap). While these remedies are clearly not as satisfactory as those in place for public schools, concerned parents can preemptively exert pressure for schools to create more robust anti-bullying policies by raising their voices-and using what’s in their wallets. Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and Managing Research Editor of that publication.