An Orgy of "Make-Work" for Bureaucrats and Lawyers

by Wendy McElroy, The Future of Freedom Foundation
Sep. 08, 2011

New Jersey has provided a blueprint on how not to solve a social problem. The blueprint will almost certainly create a barrage of new difficulties without relieving the old one.

The “Anti-Bullying Bill of Rights Act” took effect on September 1. The New York Times (August 30) reported, “Under a new state law in New Jersey, lunch-line bullies ... can be reported to the police by their classmates this fall through anonymous tips to the Crimestoppers hot line.” The bill is being heralded as the toughest anti-bullying law in America and may well be used as a model in other states. In 18 pages of “required components,” the New Jersey law demands every public school to have specially trained staff to handle ambiguously defined “bullying” and then to conduct intricate investigations that exclude parents and lead to suspension or expulsion if the student is found “guilty.”

The following are merely some of the predictable new difficulties:

Anonymous tips encourage maliciously false accusations. The bill attempts to forestall this criticism by stating that the tip line “shall not be construed to permit formal disciplinary action solely on the basis of an anonymous report.”

What about two anonymous tips? A student could call twice or a clique could target someone. The onus of proof is on the accused with no consequences borne by the accusers. Moreover, the Crimestopper hotline assumes that grade-schoolers are able to accurately distinguish between bullying and mere rudeness or a refusal to associate.

Children are being taught to inform on peers to the police. The New York Times reported that “students will be told that there is no such thing as an innocent bystander when it comes to bullying: if they see it, they have a responsibility to try to stop it.”

That not only elicits images of children snitching to the East German Stasi on neighbors and ”friends” but also teaches that snitching to a police force should be the first option, rather than talking to the offending person or standing up for the abused student.

The definition of bullying is unreasonably broad. According to the bill, conduct that is “good cause for suspension or expulsion” includes, “Continued and willful disobedience; Open defiance of the authority of any teacher or person having authority...; Participation in an unauthorized occupancy ... of any part of any school or other building owned by any school district, and failure to leave ... promptly after having been directed to do so...; Harassment, intimidation, or bullying.” “Harassment, intimidation, or bullying” includes “any gesture, any written, verbal or physical act, or any electronic communication.”

The bill appropriately prohibits violence against persons and property but school (and state) laws have addressed such offenses for many years. The new prohibitions sound more like social control than a concern for safety.

Nonphysical bullying, such as offending a classmate, is being criminalized. The police involvement extends beyond the tip line. The bill mandates that “in consultation with the Attorney General, [the police] shall develop a training course for safe schools resource officers and public school employees assigned by a board of education to serve as a school liaison to law enforcement.”

Inappropriate but nonphysical behavior among children is now to be addressed by police policies and training programs.

The jurisdiction claimed by the school is unreasonably broad. The bill instructs schools to make “provisions for appropriate responses to harassment, intimidation, or bullying ... that [occur] off school grounds, in cases in which ... such actions create a hostile environment at school for the student, infringe on the rights of the student at school, or disrupt the education process or orderly operation of a school.”

Presumably, if the Facebook harassment of one student by another on a home computer creates a hostile school environment, then the school can intervene. That extends the reach of school authority into the home, onto the streets, into public parks.... It usurps parents’ prerogative to “police” their own children after school.

Parents are excluded until the final hearing. Although the parents of accused children are informed of the “charges,” the bill specifically excludes them from the labyrinthine investigation process. “[Even] a parent who is a member of the school safety team shall not participate in the activities of the team ... or any other activities of the team which may compromise the confidentiality [read: anonymity] of a student.”

The one point at which parents are specifically included is at the end of the board of education investigation; at that point they are allowed to appeal the decision. Gone are the days of parent-principal conferences and peer-to-peer exchanges aimed at resolving unruly or cruel behavior.

The bill encourages overreporting. The bill states, “A member of a board of education or a school employee who promptly reports an incident of harassment, intimidation or bullying, to the appropriate school official ... is immune from a cause of action for damages arising from any failure to remedy the reported incident.”

Nonreporting is punished. What teacher or janitor would risk his job or pension by not reporting even innocuous behavior that might later be reported by someone else or that might lead to a future incident? Administrators are also punished for not pursuing investigations. Schools are publicly graded on how vigorously they act to prevent bullying.

As an unfunded mandate, it draws money and time away from teaching. Each school must include an on-staff specialist on bullying and each staff member must receive training. Every school district must prepare a comprehensive policy and institute an extensive system of reporting to other bureaucracies on their investigations. The New York Times noted how schools were reacting: “[More] than 200 districts have snapped up a $1,295 package put together by a consulting firm that includes a 100-page manual and a DVD.”

Time is also drawn away from teaching basic skills such as math and literacy. The bill provides for a “Week of Respect” (beginning on the first Monday of October) during which each school must offer “age-appropriate instruction focusing on preventing harassment, intimidation, or bullying.” As well, “throughout the school year the school district shall provide ongoing age-appropriate instruction” on the same issues. The Times commented on one school that “children, including kindergartners, will spend six class periods learning, among other things, the difference between telling and tattling.”

The bill does not specify a source of funding. It mentions an ill-defined pool of money that may be available for some purposes, but it also states, “Fiscal responsibility requires New Jersey to take a smarter, clearer approach to fight school bullying by ensuring that existing resources are better managed and used....”

Other than by cutting union jobs and pensions, the only way to cut back is to divert time now spent on teaching basic skills.

The massive new bureaucracy constitutes “make-work” for government employees and consultants. Consider one of several procedures mandated in the bill: the investigation process, which is presented here in highly simplified form. An incident or accusation of bullying must be reported immediately to the principal; the anti-bullying specialist promptly conducts an investigation; a report is filed; the superintendent of schools decides on whether to pursue the case; the investigation is sent to the board of education; all parties are notified; the board issues a decision; the decision can be appealed to the commission of education, whose policies are formed through consultation with “recognized experts in school bullying from a cross section of academia, child advocacy organizations, nonprofit organizations, professional associations, and government agencies.” This massive new bureaucracy has nothing to do with actually educating children.

Parental appeals and lawsuits will inevitably “make-work” for lawyers. Various aspects of the bill virtually guarantee a flood of lawsuits against the New Jersey school system. Such aspects include: the extremely broad definition of bullying; abuses of reporting; the lack of provision for a first offender; the exclusion of parents from the process; and, the claim of off-school authority. Schools will also “lawyer up” in anticipation and in response.

Conclusion

Why did such a wretched bill prevail? It was politically expedient. The bill was passed in response to last year’s suicide of Rutgers University student Tyler Clementi, who killed himself after being bullied. Never mind that a grade-school bully in a lunch line bears little connection to the troubled gay student’s death. The public was outraged. Politicians were eager to translate yet another personal tragedy into more social control in order to show their leadership.

Bullying cannot be legislated away. You cannot teach children civility by using the police in response to admittedly cruel but relatively normal school-corridor behavior. Moreover, the same people in charge of eliminating bullying (that is, school employees) are responsible for much of the worst brutality that occurs. A headline in the Huffington Post (August 31) stated, “First Graders Handcuffed at Chicago School, Told They Were Going to Prison: Lawsuit.” Their offense? Talking during class. Children mirror what they see and how they are treated.
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Wendy McElroy is the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998). She actively manages two websites: http://www.ifeminists.com and http://www.wendymcelroy.com. For additional articles on current events by Ms. McElroy, please visit the Commentary section of our website.