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Monday, November 22, 2010

Christie Owes Quick Veto to Anti-Bullying Proposal

The New Jersey Legislature on Monday passed an anti-bullying bill that may protect the bullied -- but also may make many, many people increasingly vulnerable to all sorts of harassment, intimidation and retaliation. (Read the bill -- Assembly bill number 3466, also referred to as A.3466 -- as it came out of the Assembly committee, by clicking here.) 

Make no mistake, bullying has been a problem.  However, bullying is best solved by personal attention of the people closest to the issue: parents and teachers.  Laws are no substitute for a child -- or adult, of any age -- who feels unloved, abandoned or ignored.  That child doesn't want (or need) a new law.  That child needs the love, affection and attention of people who care.

In short, this bill is an example of a proposed law that should be evaluated, not on its intent, but on its likely effect. 

If the true, and unstated, goal is to have a bunch of state legislators pat themselves on the back for an anti-bullying measure (a necessity going into an election year), voting yes on the bill may do the job. 

However, measuring the effect is a different story (and one focus of Crime, Politics and Policy).

There is serious potential for mischief here -- and none of this has anything to do with stopping bullies.

First, the definition of "harassment" would be amended to include "an incident...[that would] substantially disrupt or interfere with the orderly operation of the school or the rights of other students" as well as "the creation of a hostile educational environment" for a student including anything which "severely or pervasively causing physical or emotional harm to the student."  All of these phrases will be defined, in New Jersey World, in the courts, meaning that you will have people hammered by this law who have done nothing wrong except get on the wrong side of someone in authority who has the ear -- and complicity -- of a regulator or prosecutor.  It will be too easy to fit speech -- or people -- you don't like into these definitions.

It's a good thing this law wasn't amended earlier, or else that Bergen County mother who cursed out a high school principal for what she thought was indifference to her daughter being "pantsed" would surely be in jail.   

Another problem is the section making "bias intimidation" a crime for which conviction is a disqualifying offense.  This gives prosecutors another hammer to pressure perhaps otherwise innocent people into accepting guilt for something they didn't do.  Besides, the entire concept of "bias" or "hate crimes" has too much potential to infringe upon constitutionally-protected (if unwelcome) free speech to be glossed over.  It is too easy, in an age of politically-ambitious or career-ambitious prosecutors and legislators, to take what is in reality disfavored political opposition and brand it as "bias" and a crime in order to intimidate and silence opposition.  This may be the concern behind the lone "no" vote by Assemblyman Michael Patrick Carroll (the Assembly voted 71-1 in favor with five abstentions, while the Senate vote was unanimous).

The bill also imposes reporting requirements on school administrators and teachers.  Expect a hypersensitivity to all sorts of benign behavior as a predictable and reasonable reaction by school employees, already fearful for their jobs, also afraid of losing their jobs "for cause" for failing to report anything that someone else might characterize as bullying. 

Note how none of the foregoing actually helps kids who are genuinely bullied. In fact, by creating the temptation for too many false alarms and bogus claims, legitimate cases of bullying become more likely to be ignored.  The problem is, one suspects this bill is not about protecting bullies.  It is about looking good.

This is one bill that Governor Christie should veto. 

Eric Dixon is a New York lawyer who handles strategic analysis, legal analysis and litigation stress consulting for clients.  He is available for comment or consultation at and 917-696-2442.


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