Tuesday, Sep. 06, 2011
On Sept. 1, New Jersey's new antibullying law — billed as the nation's toughest — took effect. The law, of which co-sponsor Barbara Buono, the state's senate majority leader, called "a powerful message to every child in New Jersey," is an important step forward in combating the bullying of young people. However, even before its start date, the backlash was already underway. Critics say the law is too burdensome for teachers, too expensive for school districts and will spawn too many lawsuits. But here's why New Jersey should ignore its critics and press ahead — and other states should follow its lead.
The Anti-Bullying Bill of Rights was enacted as the state was still reeling from the death of Tyler Clementi, an 18-year-old freshman at Rutgers University. Clementi committed suicide last September after his roommate allegedly took a video of his romantic encounter with a man and streamed it on the Internet. (Watch TIME's video on bullying and being yourself.)
The state responded by indicting Clementi's roommate on hate-crime charges, but it also did something more far-reaching: legislators drafted a law requiring its public schools to adopt extensive antibullying policies. Forty-seven states already have antibullying statutes on the books (New Jersey had a weaker law in place earlier), but the new law goes far beyond what most others require. Among other things, New Jersey schools must carry out extensive training of staff and students; appoint safety teams made up of parents, teachers and staff; and launch an investigation of every allegation of bullying within one day.
These particulars are important, but perhaps the most significant thing about the New Jersey law is the strong message it sends. Other states' laws have similar aims, but lack the same rigorous oversight and quick response mechanisms that New Jersey is putting in place. The Anti-Bullying Bill of Rights unambiguously puts the state, school officials and law enforcement on the side of the victims — and it puts bullies on notice. (Read "Seth's Law: Can a Bullied Boy Leave California a Legal Legacy?")
New Jersey's law was overwhelmingly popular when it was proposed: only one state legislator voted against it. But now that it is being implemented, critics are attacking it as too demanding and too costly. In a recent New York Times article headlined "Bullying Law Puts New Jersey Schools on Spot," school officials complained that the new law imposes excessive requirements while not providing needed resources.
The critics' concerns are not entirely trivial. The Anti-Bullying Bill of Rights has a lot of rules, including 18 pages of "required components." Training staff will be a lot of work, and it will be expensive for cash-strapped school districts. Making matters worse, any estimate of extra costs, in terms of demands on existing staff and possible need for outside consultants, is difficult: even the New Jersey's legislature's own fiscal estimate ducked the issue.
The law also contains a good deal of language that will be challenging to interpret. It defines bullying as, among other things, creating a hostile educational environment "by interfering with a student's education or by severely or pervasively causing physical or emotional harm to the student." When does a schoolyard jibe or a mean comment in the cafeteria cross the line? It will require some thoughtful interpretation.
The law will also, necessarily, thrust school officials into the tricky area of policing student expression, including statements made off campus. This puts schools in a bit of a bind: in several recent rulings, federal courts have reminded schools that they must respect the free-speech rights of their students, even when that speech is harsh or provocative. New Jersey's law pushes schools in the opposite direction, requiring them to monitor and police certain kinds of speech. (Read "When Bullying Turns Deadly: Can It Be Stopped?")
There is, however, a broad answer to these concerns: effective antibullying laws are worth the trouble. Bullying is a serious national problem, and Clementi is far from the only student in recent years believed to have taken his life over it. Last year the parents of Sladjana Vidovic, a Croatian student attending high school in Mentor, Ohio, sued after their daughter hanged herself. Sladjana is one of five students in Mentor to kill themselves in a little more than three years after allegedly being bullied.
Of course, there are countless instances of bullying every year in which the victims do not kill themselves, but are nevertheless greatly affected. They drop out. They turn to drugs or alcohol or run away from home. Or they simply suffer in silence.
The bipartisan and near unanimous support for the Anti-Bullying Bill of Rights in the state legislature shows how united New Jerseyans are in the belief that stronger steps must be taken to combat bullying. Even if implementing the law is not easy, it is clearly something the citizenry wants it done. (Read "The Tricky Politics of Tween Bullying.")
Critics of the new law are also complaining that it will open the floodgates to lawsuits. The New Jersey Lawsuit Reform Alliance has charged that the Anti-Bullying Bill of Rights essentially gives trial lawyers "a blank check to sue school districts on behalf of bullied children."
This concern, too, is overblown. The fact is, even before New Jersey adopted its new law, the state allowed many victims of bullying to sue. In 2007, the New Jersey Supreme Court ruled that a student bullied for his perceived sexual orientation could sue his school district under the state's general antidiscrimination law.
There may be kinks to work out in the new law, but the big picture is that New Jersey is putting itself out in front nationally on the issue of bullying — and standing firmly with the victims. That is the right place to be.
Cohen, a former TIME writer and former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School. Case Study, his legal column for TIME.com, appears every Monday. You can continue the discussion onTIME's Facebook page and on Twitter at @TIME.
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