In re Complaint filed by the Allamuchy Township Board of Education (9-11).
PROCEDURAL HISTORY
Complaint filed. On August 31, 2011, via email, a Complaint was filed by Francis Gavin, Board President, Allamuchy Township Board of Education, in which it is alleged that NJ Laws 2010, chapter 122, portions of which are known as the "Anti-Bullying Bill of Rights is an unfunded mandate. This complaint wasn't circulated until September 7, 2011, because it was missing the required resolution allowing permission from Allamuchy Township to file a complaint before the Council on Local Mandates. A summary of the Allamuchy Township Board of Education's Complaint may be viewed under Pleading Summaries.
To view the full version of the Allamuchy Township Board of Education Complaint and Resolution, please click the highlighted text.
Council publication. Because of the identity of the issue raised, the Council ordered that the complaint should be served on the Attorney General and the officials listed in Council Rule 9a. The Council also determined that the Attorney General would be directed to file an Answer to the Complaint, and that any other official served with the Complaint that chose to do so might file an Answer, as Respondent.
By letter of October 4, 2011, the Complaint was circulated to the above-mentioned officials, and the letter also provides a schedule of due dates for filings of pleadings, including:
- Answer(s) directed to the Complaint (September 29, 2011).
- Claimant and Respondent Dispositive Motion(s) directed to the Complaint (November 4, 2011).
- Claimant and Respondent response(s) to such Motions (November 25, 2011).
- Requests to Appear as Amicus Curiae (November 18, 2011).
- Objections to Requests to Appear as Amicus Curiae (November 25, 2011).
Respondent, State of New Jersey, Department of Education submits their Answer to the Complaint. On September 29, 2011, an Answer was filed on behalf of Respondent, State of New Jersey, Department of Education, via e-mail. A summary of that pleading may be viewed under Pleading Summaries.
To view the full version of the Respondent's Answer, please click here.
Claimant submits their Application in Support of Summary Judgment. On November 9, 2011, an Application in Support of Summary Judgment (also included were the certification of service and memo in support of summary judgment) was filed on behalf of Claimant, the Allamuchy Township Board of Education, via email. A summary of that application may be viewed under Pleading Summaries.
To view the full version of the Claimant's Application in Support of Summary Judgment with the certification of service and memo in support of summary judgment, please click here.
New Jersey State Bar Association submits their notification to Request to Appear as Amicus Curiae. On November 14, 2011, via email the NJ State Bar Association notified the Council that they intend to file a Request to Appear as Amicus Curiae in this matter by the filing deadline of November 18, 2011. This notification was made by Sharon A. Balsamo, Esq., on behalf of the NJ State Bar Association.
New Jersey State Bar Association requests an extension to file Request to Appear as Amicus Curiae. On November 16, 2011, via email, the NJ State Bar Association requested an extension of time in the filing of their request to appear as amicus curiae. The Council granted the extension, and notified all parties of the changes to the pleading schedule in regards to filing for Amicus, via email.
Council issues new filing dates for filing Request to Appear as Amicus Curiae. On November 16, 2011, via email, the Council informed all parties of changes to the pleading schedule in regards to all Requests to Appear as Amicus Curiae and any objection(s).
- Requests to Appear as Amicus Curiae was originally due on November 18, 2011, and that has now been moved to November 23, 2011.
- Objection(s) to Requests to Appear as Amicus Curiae was originally due on November 25, 2011, and that has now been moved to December 2, 2011.
LGBTQ Caucus of Rutgers School of Law, Newark submits their Request to Appear as Amicus Curiae. On November 18, 2011, via email, the LGBTQ Caucus of Rutgers School of Law, Newark, submitted their request to appear as amicus curiae. The request to appear as amicus curiae was submitted by Julia Casteleiro, Student Associate Constitutional Litigation Clinic on behalf of the LGBTQ Caucus of Rutgers School of Law, Newark. A summary of the Request to Appear as Amicus Curiae may be viewed under Pleading Summaries.
To view the full version of the Request to Appear as Amicus Curiae by the LGBTQ Caucus of Rutgers School of Law, Newark, please click here.
Respondent, State of New Jersey, Department of Education submits their Letter Brief in Opposition to Claimants Summary Judgment Motion and in Support of Respondent's Cross Motion for Summary Judgment. On November 25, 2011, via email, the Respondent filed a Letter Brief in Opposition to the Claimants Summary Judgment Motion and in Support of Respondent's Cross Motion for Summary Judgment. A summary of the Letter Brief can be viewed under Pleading Summaries.
To view the full version of the Letter Brief in Opposition to the Claimant's Motion for Summary Judgment and in Support of the Respondent's Cross Motion for Summary Judgment, please click here.
New Jersey State Bar Association's submits their Request to Appear as Amicus Curiae. On November 29, 2011, via FedEx, the NJ State Bar Association, submitted their request to appear as amicus curiae. The request to appear as amicus curiae was submitted by Sharon A. Balsamo, Esq., Counsel and Director of Legal Affairs on behalf of the New Jersey State Bar Association. A summary of the Request to Appear as Amicus Curiae may be viewed under Pleading Summaries.
To view the full version of the Request to Appear as Amicus Curiae by the New Jersey State Bar Association, please click here.
Ridgewood Public Schools submits a certified resolution approved by the Ridgewood Board of Education in support of the Allamuchy Township Board of Education. On December 9, 2011, via regular mail, the Ridgewood Public Schools, submitted a certified resolution in support of the Allamuchy Board of Education. The certified resolution was submitted by Angelo DeSimone, Assistant Superintendent for Business/Board Secretary, on behalf of the Ridgwood Public Schools.
To view the full version of the certified resolution submitted by the Ridgewood Public Schools, please click here.
Allamuchy Township Board of Education submits their response to the State of NJ DOE's application for summary judgment. On December 15, 2011, via email, the Allamuchy Township BOE submitted their response to the application for summary judgment filed by the Respondent, State of NJ DOE. Also, included in this package is the Certification of Service of Peter Pearson, in regards to the Claimant's response. This response was filed by Francis Gavin, Board President on behalf of the Allamuchy Township BOE.
To view the full version of the response by the Allamuchy Township BOE and the certification of service, please click the highlighted text.
River Vale Public Schools submits a certified resolution approved by the River Vale Board of Education in support of the Allamuchy Township Board of Education. On December 22, 2011, via regular mail, the River Vale Public Schools, submitted a certified resolution in support of the Allamuchy Board of Education. The certified resolution was submitted by Kelly Ippolito, Business Administrator/Board Secretary, on behalf of the River Vale Public Schools.
To view the full version of the certified resolution submitted by the River Vale Public Schools, please click here.
Marlboro Township Public Schools submits a certified resolution approved by the Marlboro Township Board of Education in support of the Allamuchy Township Board of Education. On December 27, 2011, via regular mail, the Marlboro Township Public Schools, submitted a certified resolution in support of the Allamuchy Board of Education. The certified resolution was submitted by Cindy S. Barr-Rague, School Business Administrator/Board Secretary, on behalf of the Marlboro Township Public Schools.
To view the full version of the certified resolution submitted by the River Vale Public Schools, please click here.
Council issues Notice of Hearing. On January 10, 2012, via email, the Council informed all interested parties in their Notice of Hearing in the Allamuchy Township Board of Education Matter, of the date, time and location of the scheduled hearing (see below).
Date/Time of Hearing: January 27, 2012, at 10:00 a.m.
Place of Hearing: Committee Room 10, 3rd floor, State House Annex, Trenton, NJ.
Purpose of Hearing: To hear oral argument of Claimant Allamuchy Township Board of Education, and Respondent State of New Jersey Department of Education, regarding both parties request for Summary Judgment.
Waldwick Public School District submits a certified resolution approved by the Waldwick Board of Education in support of the Allamuchy Township Board of Education. On January 18, 2012, via regular mail, the Waldwick Public School District, submitted a certified resolution in support of the Allamuchy Board of Education. The certified resolution was submitted by Dr. Patricia M. Raupers, Superintendent of Schools, on behalf of the Waldwick Public School District.
To view the full version of the certified resolution submitted by the Waldwick Public School District, please click here.
Demarest Board of Education submits a certified resolution approved by the Demarest Board of Education in support of the Allamuchy Township Board of Education. On January 26, 2012, via regular mail, the Demarest Board of Education, submitted a certified resolution in support of the Allamuchy Board of Education. The certified resolution was submitted by Frank G. Chilson, Business Administrator/Board Secretary, on behalf of the Demarest Board of Education.
To view the full version of the certified resolution submitted by the Demarest Board of Education, please click here.
Council issues their position after hearing in regards to the oral argument in the Allamuchy Township Board of Education matter. On January 27, 2012, the Council decided that the Legislation before the Council constitutes an unfunded mandate and decided that the motion for reconsideration on the jurisdictional issue should be denied. The rationale for that will be more fully set forth in a written opinion in sixty (60) days. The Council determined by a vote of 7-2, that the Anti-Bullying Legislation as presently constituted constitutes an unfunded mandate. The order will become effective when the written decision is issued in sixty (60) days.
Englewood Board of Education submits a certified resolution approved by the Englewood Board of Education in support of the Allamuchy Township Board of Education. On February 1, 2012, via regular mail, the Englewood Board of Education, submitted a certified resolution in support of the Allamuchy Board of Education. The certified resolution was submitted by Maria Engeleit, Board Secretary/Business Administrator, on behalf of the Englewood Board of Education.
To view the full version of the certified resolution submitted by the Englewood Board of Education, please click here.
Englewood Public School District submits a letter approved by the Englewood Board of Education reconsidering their support of the Allamuchy Township Board of Education. On February 21, 2012, via regular mail, the Englewood Public School District, submitted a letter reconsidering their support of the Allamuchy Board of Education. The letter was submitted by Donald K. Carlisle, Ed.D., Superintendent, on behalf of the Englewood Board of Education.
To view the full version of the certified resolution submitted by the Englewood Board of Education, please click here.
Norwood Board of Education submits a certified resolution approved by the Englewood Board of Education in support of the Allamuchy Township Board of Education. On February 21, 2012, via regular mail, the Norwood Board of Education, submitted a certified resolution in support of the Allamuchy Board of Education. The certified resolution was submitted by Joanette Femia, Business Administrator/Board Secretary, on behalf of the Norwood Board of Education.
To view the full version of the certified resolution submitted by the Norwood Board of Education, please click here.
Washington Township Board of Education submits a certified resolution approved by the Washington Township Board of Education in support of the Allamuchy Township Board of Education. On March 1, 2012, via regular mail, the Washington Township Board of Education, submitted a certified resolution in support of the Allamuchy Township Board of Education. The certified resolution was submitted by Jean Flynn, Board Secretary, on behalf of the Washington Township Board of Education.
To view the full version of the certified resolution submitted by the Washington Township Board of Education, please click here.
Respondent, State of New Jersey, Department of Education submits their Motion to Dismiss the Complaint as Moot. On March 29, 2012, via email, the Respondent filed their letter brief on behalf of Respondent, State of New Jersey as its pleading summary in support of Respondent's Motion to Dismiss the Complaint as Moot. A summary of the Letter Brief can be viewed under Pleading Summaries.
To view the full version of the Respondent's pleading summary in support of the Motion to Dismiss the Complaint as Moot, please click here.
Allamuchy Township Board of Education submits their response to the State of NJ DOE's Motion to Dismiss. On April 9, 2012, via email, the Allamuchy Township BOE submitted their response to the letter brief for Motion to Dismiss the Complaint as Moot filed by the Respondent, State of NJ DOE. This response was filed by Francis Gavin, Board President on behalf of the Allamuchy Township BOE.
To view the full version of the response by the Allamuchy Township BOE, please click here.
Council issues their written opinion. On May 1, 2012, via email, the Council issued their written opinion in the matter of the Allamuchy Township Board of Education to all interested parties.
To view the full version of the written opinion, please click here.
PLEADING SUMMARIES.
This portion of the site reproduces summaries, written by parties and amici, of their pleadings, as they are filed with the Council, beginning with the filed Complaints. The summaries do not represent the views of the Council; they are provided to facilitate understanding of the positions reflected in the pleadings.
Complete copies of all filed pleadings may be obtained by contacting the Council office as described under Address & Telephone.
Claimant Allamuchy Township Board of Education's Summary of Complaint:
"A. Section 14 of P.L. 2010 ch. 122 amends Section 5 of P.L.2002, c.83 (NJS18A:37-17) to require schools and school districts to annually establish, implement, document, and assess bullying prevention programs or approacheds, and other initiatives involving school staff, students, administrators, volunteers, parents, law enforcement and community members so as to create school-wide conditions to prevent and address harassment, intimidation, and bullying. Said section also encourages such school districts to apply to the Department of Education for a grant to be used for the acquisition or development of the programs or approaches which the law requires the districts to establish. The grant funding is made available through the Bullying Prevention Fund to the extent funds are appropriated or are made available. To date, the Legislature has not appropriated funds for the Bullying Prevention Fund thereby requiring local funding for the acquisition and development of the required programs and approaches. Moreover, the section also requires the local school district to provide training on the school district's harassment, intimidation or bullying policies to school employees and volunteers who have significant contact with students, a process that will require the expenditure of local funds. B. Section 17 of P.L. 2010 ch. 122 which is codified at NJS 18A:37-20 requires local school districts to create and staff new work titles of anti-bullying specialist and anti-bullying coordinator. The anti-bullying specialist will be either: an additional job title for a school guidance counselor, school psychologist, or another individual similiarly trained who is currently employed in the school; or if one of the foregoing is not employed in a particular school, an existing staff member who will need to be trained. In addition, the act requires each district to have a district anti-bullying coordinator to which position the superintendent is to make every effort to appoint an employee of the school district. The additional job titles will require financial stipends for any employees who are members of a collective bargaining unit and therefore will be funded through local funds."
The above summary is a quotation from the Complaint filed by Francis Gavin, Board President, on behalf of the Allamuchy Township Board of Education, on August 31, 2011.
Respondent, State of New Jersey, Department of Education Summary of Answer to the Complaint:
"Respondent denies that the provisions of N.J.S.A. 18A:37-17 et seq. constitute an unfunded mandate. Pursuant to N.J.S.A. 18A:37-17, each school district shall provide training on the school district's harassment, intimidation, or bullying policies to school employees and volunteers who have significant contact with students." This training "shall be incorporated into a school's employee training program and shall be provided to full-time and part-time staff, volunteers who have significant contact with students, and those persons contracted by the district to provide services to students." The training is meant to supplement the existing training given to employees and will not require additional expenditures. Further, State aid to local district is meant to fund at least a protion of the cost of training employees of local school districts.
"In addition, while Claimant alleges that N.J.S.A. 18A:37-20 requires new job titles and therefore new expenditures, the plain language of the statute indicates that someone currently on the school's staff shall be designated as an "anti bullying" specialist. Moreover, to the extent that additional costs are incurred those costs will be reimbursed by the Department of Education. N.J.S.A. 18A:37-19 provides that "[a] school district that incurs additional costs due to the implementation of the provisions of this act shall apply to the Commissioner of Education for reimbursement.
"WHEREFORE, Respondent requests that the Council on Local Mandates dismiss Claimant's Complaint.
The above summary is a quotation from the Answer and Motion to Dismiss the Complaint filed by Daniel Dryzga, Deputy Attorney General, on behalf of the State of New Jersey, Department of Education on September 29, 2011.
Claimant's Application in Support of Summary Judgment:
"Claimant, the Allamuchy Township Board of Education hereby moves for summary judgment as follows:
- A. Declaring that section 14 of P.L. 2010ch.122 amending section 5 of P.L. 2002 ch.8 (NJS 18A:37-17)which statute requires schools and school districts annually to establish, implement, document and assess bullying prevention programs or approaches and other initiatives involving school staff, students, administrators, volunteers, parents, law enforcement and community members so as to create school-wide conditions to prevent and address harassment, intimidation and bullying is an unfunded mandate in violation N.J.Const. art VIII, §2, ¶5 and NJSA 52:13H-2 and shall cease to be mandatory in effect and shall expire.
- B. Declaring that section 17 of P.L. 2010 ch. 122 which is codified at NJSA 18A:27-20 which statute requires local school districts to create and staff new work titles of anti-bullying specialist and anti-bullying coordinator and to train those individuals is an unfunded mandate in violation N.J.Const. art VIII, §2, ¶5 and NJSA 52:13H-2 and shall cease to be mandatory in effect and shall expire.
- C. Declaring that section 18 of P.L. 2010 ch. 122 which is codified at NJSA 18A:37-21 which statute requires each school district to establish a school safety team in each school is an unfunded mandate in violation N.J.Const. art VIII, §2, ¶5 and NJSA 52:13H-2 and shall cease to be mandatory in effect and shall expire to the extent that any compulsory appointment to the team requires payment of compensation for such service.
- D. Declaring that section 12 of P.L. 2010 ch. 122 amending Section 3 of P.L.2002, c.83 (C.18A:37-15) which statute provides in subsection 3(b)(7) that a district's policies must make provision for "the range of ways in which a school will respond once an incident of harassment, intimidation or bullying is identified, which shall be defined by the principal in conjunction with the school anti-bullying specialist, but shall include an appropriate combination of counseling, support services, intervention services, and other programs, as defined by the commissioner" thereby requiring the district to provide services, all of which are not funded by the State and therefore will requiring local funds is an unfunded mandate in violation N.J.Const. art VIII, §2, ¶5 and NJSA 52:13H-2 and shall cease to be mandatory in effect and shall expire.
Claimant will rely on the certification of Timothy Frederiks, Ed.D., the chief school administrator for the district in support of this application for summary judgment."
The above is the Application for Summary Judgment filed by Francis Gavin, President, on behalf of the Allamuchy Township Board of Education on November 9, 2011.
LGBTQ Caucus of Rutgers School of Law, Newark Request to Appear as Amicus Curiae:
"I, IRIS BROMBERG, hereby certify the following:
1. I am a full-time student at Rutgers School of Law, Newark and am the President of the LGBTQ
Caucus of the School of Law, Newark, a student organization recognized by Rutgers University. I make this certification in support of the motion of the LGBTQ Caucus for leave amicus curiae in the above-captioned matter. I have personal knowledge of the matters set forth herein.
2. The Council on Local Mandates has authority to permit amicus curiae to assist in their proceedings pursuant to Rule 7 of the Council on Local Mandates Rules of Procedure. The extent to which the Council should appoint an amicus curiae is within the Council's discretion. "The Council shall grant the request if it is determined by a majority vote of the council's members that the request is timely, that participation by the group or individual will assist in the resolution of the matter and that no interested party will be prejudiced thereby." N.J.S.A. 52:13H-12(c), Courts have found the participation of an amicus especially proper where an issue of "general public interest is at stake."
3. This case raises important questions regarding the constitutionality of the Anti-Bullying Bill of Rights, P.L. 2010, c.122, codified at N.J.S.A. 18A:37 - 17 et seq.. Plaintiff, Allamuchy Township Board of Education, alleges that the provisions of N.J.S.A. 18A:37-17 et seq., constitute an unfunded mandate. Pursuant to N.J.S.A. 18A:37-17, each school district "shall provide training on the school district's harassment, intimidation, or bullying policies to school employees and volunteers who have significant contact with student." The issues presented in this case involve the important principles of the Equal Protection Clause and, specifically, the right of individuals to be free from harassment and discrimination in a limited public forum.
4. The special knowledge and expertise of amicus curiae are substantial:
(a) The LGBTQ Caucus is a student-run, non-partisan membership organization dedicated to the principle of equal rights for all students and people. The LGBTQ Caucus does not have any personal or financial relationship to the parties in the case.
(b) Some of our members have attended school in New Jersey school districts and are aware of the problems of bullying in our schools.
(c) The LGBTQ Caucus strongly supports ensuring that all students have equal access to and protection in the educational system. Recently, the LGBTQ Caucus provided a LGBTQ sensitivity and cultural competency training to New Jersey social workers and educators. Motivated by the tragic loss of our fellow Rutgers University student to bullying, the Caucus worked with other Rutgers University organizations and administrators in creating the LGBTQ Resource Center in Newark, New Jersey, and implementing gender-neutral housing facilities. The LGBTQ Caucus has a special interest in maintaining and safeguarding the rights of students to access and interact with the educational system in a safe and respectful environment.
5. The participation of amicus curiae will assist the Council in the resolution of the issues of public importance raised by this case by providing a timely and useful legal context in which to analyze the facts of this case. The LGBTQ Caucus participation as amicus curiae will not delay proceedings or unduly prejudice any parties to the litigation, and the LGBTQ Caucus "will contribute to the court's understanding" of the case. See Harris v. Pernsley, 820 F.2d 592, 603 (3d Cir. 1987).
6. The LGBTQ Caucus believes the provisions of N.J.S.A. 18A:37-17 et seq., do not constitute an unfunded mandate. The training required for school employees under that statute is to be "incorporated into the schools [existing] training program. . . for [employees] that have significant contact with students." The training is meant to supplement existing training and will not require additional expenditures. Despite the Claimant's contention, the provisions of N.J.S.A. 18A:37-17 et seq., do not require new job titles and new expenditures because the plain language of the statute states that someone currently on the school staff be designated as the anti-bullying specialist. Further, if new costs are incurred, then those expenses are to be reimbursed by the Department of Education. N.J.S.A. 18A:37-19 ("A school district that incurs additional costs due to the implementation of this act shall apply to the Commissioner of Education for reimbursement."). The Allamuchy Township Board of Education has not alleged that it has requested but been denied reimbursement for any additional costs that might have arisen out of implementation of the provisions of the Anti-Bullying Bill of Rights pursuant to N.J.S.A. 18A:37-19.
7. Further the LGBTQ Caucus contends that even if the Council finds this to be an unfunded mandate, it would meet one of the exceptions under Article VIII, § II, ¶ 5 (c) (5) of New Jersey Constitution, which states laws, rules, or regulations to implement the provisions of the New Jersey Constitution shall not be considered unfunded mandates. N.J.S.A. 18A:37-19 et seq ensures that Article I of the New Jersey Constitution be properly implemented. Article I, paragraph 1 of the New Jersey Constitution states, "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness." Paragraph 5 also states, "No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin." The provisions of N.J.S.A. 18A-37-19 ensure that all students are not discriminated against through harassment and bullying.
8. The LGBTQ Caucus understands that a motion to dismiss has just been filed by the Defendant. If this motion is not granted, The LGBTQ Caucus would kindly requests that it be able to file a brief in subsequent proceedings as directed by the Council.
The above is the Certification of Service of Iris Bromberg submitted by Julia Casteteleiro, on behalf of the LGBTQ Caucus School of Law, Newark's Request to Appear as Amicus Curie, which includes the facts necessary to assist the Council in deciding the motion, on November 18, 2011.
Respondent, State of New Jersey, Department of Education Letter Brief in Opposition to Claimants Summary Judgment Motion and in Support of Respondent's Cross Motion for Summary Judgment:
PROCEDURAL HISTORY AND STATEMENT OF FACTS1
On January 5, 2011, L. 2010, c. 122 was signed into law. The "Anti-Bullying Bill of Rights Act of 2011" as it is known is described as "amending various parts of the statutory law and supplementing L. 2002, c. 83." L. 2002, c. 83, was New Jersey's first public school anti-bullying statute. Since its enactment in 2002, it has been amended three times. The first time was in 2007 to include cyber-bullying, L. 2007, c. 129. The policy was again amended in 2008 to require each school district to post its anti-bullying policy on its website and distribute it annually to parents or guardians of students, L. 2008, c. 303. Finally, the statute was amended with the passage of L. 2010, c. 122, in 2011 to "strengthen the standards and procedures for preventing, reporting, investigating, and responding to incidents of harassment, intimidation, and bullying of students." Further, the Legislature sought to minimize any burden placed on schools and school districts. Ibid. In addition to the statutory provisions discussed above, and prior to the passage of L. 2010, c. 122, the Department of Education also promulgated regulations dealing with harassment, intimidation and bullying. See, N.J.A.C. 6A:16-7.9.
On or about September 7, 2011 the Allamuchy Township Board of Education filed a Complaint with the Council on Local Mandates, seeking to declare portions of L. 2010, c. 122 an unfunded mandate. On or about September 29, 2011, an Answer was filed on behalf of the State of New Jersey.
On or about November 14, 2011, the Allamuchy Township Board of Education filed the within Summary Judgment Motion. The motion seeks a declaration that the following provisions of L. 2010, c. 122 be declared null and void:
Section 14 of L. 2010 ch. 122 amending section 5 of L. 2002 ch. 8 (N.J.S.A. 18A:37-17), which requires school and school districts annually to establish, implement, document and assess bullying prevention programs or approaches and other initiatives,
Section 17 of L. 2010 ch. 122, which is codified at N.J.S.A. 18A:27-20 that requires local school districts to designate an anti-bullying specialist and anti-bullying coordinator,
Section 18 of L. 2010 ch. 122, which is codified at N.J.S.A. 18A:37-21 that requires each school district to establish a school safety team and,
Section 12 of L. 2010 ch. 122, amending Section 3 of L. 2002, c. 83 that is codified at N.J.S.A. 18A:37-15 and clarifies what is required in the district's policy prohibiting harassment, discrimination, and bullying.
The State of New Jersey files this Opposition and Cross Motion for Summary Judgment as the provisions of L. 2010, c. 122 are not unfunded mandates.
ARGUMENT
POINT I
COMPLAINANT'S SUMMARY JUDGMENT MOTION SHOULD BE DENIED AND RESPONDENT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE THE ANTI-BULLYING ACT OF 2011 IMPLEMENTS A PROVISION OF THE NEW JERSEY CONSTITUTION AND THEREFORE IS NOT AN UNFUNDED MANDATE.
The Anti-Bullying Bill of Rights Act of 2011, (L. 2010, c. 122) is not an unfunded mandate because it ensures that a thorough and efficient education is not denied to an public school student as a result of harassment, intimidation or bullying ("HIB"). A such, L. 2010, c. 122 implements a provision of the New Jersey Constitution.
N.J.S.A. 52:13H-3 states:
Notwithstanding the provisions of any other law to the contrary, the following categories of laws and rules or regulations shall not be unfunded mandates:
.............
e. those which implement the provisions of the New Jersey Constitution;
A line of New Jersey Supreme Court cases have stressed the necessity of schools to protect the safety of its students. See Jerkins v. Anderson, 191 N.J. 285, 289 (2007) (holding that "a school's duty to exercise reasonable care for the children in its custody is integral" to New Jersey's public education system); Frugis v. Bracigliano, 177 N.J. 250, 268 (2003) (reasoning that educators have "[n]o greater obligation . . . than to protect the children in their charge from foreseeable dangers"); Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568, 573-74 (2003) (finding that "school officials are responsible for the children entrusted to their care").
This duty also extends to peer on peer HIB. See, L.W. v. Toms River Reg'l Sch. Bd. of Educ., 189 N.J. 381, 406 (2007). In L.W. v. Toms River, the Supreme Court of New Jersey made clear its intent to further the Legislature's objective of eliminating bias-based student harassment and bullying, as embodied in L. 2002, c. 83 and the New Jersey Law Against Discrimination (LAD). In that case, the Court held that a school district may be held liable under LAD when a student harasses another student because of his perceived sexual orientation and the "school district knew or should have known of the harassment but failed to take actions reasonably calculated to end the mistreatment and offensive conduct." L.W., supra, 189, N.J. at 390. In arriving at this conclusion, the Court stated that while a district is not compelled or expected to shelter students from all instances of peer harassment, school districts are "require[d] to implement effective preventative and remedial measures to curb severe or pervasive discriminatory treatment." L.W., supra, 189, N.J. at 407.2
The court in L.W. recognized HIB as a "significant problem facing our state's educational system." L.W., supra, 189, N.J. at 401. The court further recognized the importance of a safe environment in educating students and stated:
[A] safe and civil environment in school is necessary for students to learn and achieve high academic standards; harassment, intimidation or bullying, like other disruptive or violent behaviors, is conduct that disrupts both a student's ability to learn and the school's ability to educate its students in a safe environment.
[Ibid., citing N.J.S.A. 18A:37-13.]
Continuing with the need to have a safe and secure learning environment, the Legislature sought to strengthen and clarify New Jersey's anti-bullying statute and passed L. 2010, c. 122. The legislature recognized that:
school districts and their students, parents, teachers, principals, other school staff, and Board of Education members would benefit by the establishment of clearer standards on what constitutes harassment, intimidation, and bullying, and clearer standards on how to prevent, report, investigate, and respond to incidents of harassment, intimidation, and bullying....
[N.J.S.A. 18A:37-13.1(e)]
In clarifying the definition of harassment and intimidation or bullying the Legislature stated that HIB is conduct that "substantially disrupts or interferes with the orderly operation of the school or the rights of other students." N.J.S.A. 18A:37-14 [emphasis added]. The Legislature went on to state that HIB "creates a hostile educational environment for the student by interfering with the student's education...." N.J.S.A. 18A:37-14(c). This clarification is also consistent with Federal court precedent. For example, in the case of Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217(3d Cir. 2001), the court reasoned that "the primary function of a public school is to educate its students; conduct that substantially interferes with the mission is almost by definition disruptive to that environment." See also, Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969) (student conduct can be prohibited if it substantially disrupts operation of school).
Thus, in passing L. 2010, c. 122, the Legislature determined that the standard to be used in determining whether conduct can be defined as HIB is whether it substantially disrupts or interferes with the educational process; if that standard is met, a thorough and efficient education is necessarily not being provided to the victim of HIB. The goal of L. 2010, c. 122 to "strengthen the standards and procedures for preventing, reporting, investigating, and responding to incidents of harassment, intimidation, and bullying of students" was done to ensure that each student receives an education unencumbered by HIB.
Because the provisions of L. 2010, c. 122 seek to ensure that no public school student is denied an education to which they are constitutionally entitled, L. 2010, c. 122 is not an unfunded mandate pursuant to N.J.S.A. 52:13H-3(e). As such, Complainant's Summary Judgment Motion should be denied and Respondent's Cross Motion for Summary Judgment should be granted.
POINT II
L. 2010, c. 122 IS NOT AN UNFUNDED MANDATE BECAUSE IT DOES NOT REQUIRE ANY DISTRICT TO EXPEND ADDITIONAL RESOURCES.
Where a statute does not require direct expenditures to be incurred in order to implement the language of the statute, there cannot be an unfunded mandate, In re Complaint Filed by the Township of Blairstown, (2011) at 3. In this matter, the Legislature has attempted to ensure that additional funds would not be needed to implement the provisions of L. 2010, c. 122. The Legislature explicitly states that:
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 to make our schools safer for students.
[N.J.S.A. 18A:37-13.1(g).]
The Legislature goes on to state that:
In keeping with the aforementioned goal of fiscal responsibility and in an effort to minimize any burden placed on schools and school districts, existing personnel and resources shall be utilized in every possible instance to accomplish the goals of increased prevention, reporting, and responsiveness to incidents of harassment, intimidation, or bullying, including in the appointment of school anti-bullying specialists and district anti-bullying coordinators.
[N.J.S.A. 18A:37-13.1(h).]
In addition, the Legislative Fiscal Estimate Summary of L. 2010, c. 122 states it cannot determine the cost of administering that law because "the cost would be contingent on decisions made by the State and local school districts that cannot be predicted."
(http://www.njleg.state.nj.us/2010/Bills/A3500/3466_E1.PDF).
While it is conceded that certain provisions of the L. 2010, c. 122 such as those that require the appointment of an anti-bullying specialist and the creation of a school safety team could result in local districts expending additional resources, additional costs are by no means certain. In fact, "since the person who would be appointed to serve as the district's anti-bullying coordinator is not specified in the bill, it is possible that the superintendent would assigned the duties to someone who is not a member of a collective bargaining unit and would not need to provide additional compensation." Ibid.
Claimant contends that other provisions of L. 2010, c. 122 such as the requirement to establish a bullying prevention program also require additional expenditures. However it must be noted that prior to enactment of L. 2010, c. 122, L. 2002, c. 83 encouraged school districts "to establish bullying prevention programs and other initiatives." Thus, to the extent a school district has a ready established one of these programs, the school would not incur any new cost as a result of this new provision. Even if a school district did not previously establish a bullying prevention program, L. 2010, c. 122 gives schools flexibility in determining what program, approach, or other initiatives and will implement.3 It also gives the school ability to development a ‘home grown' program or approach," and to use "training material that is available at no cost." (http://www.njleg.state.nj.us/2010/Bills/A3500/3466_E1.PDF).
Finally, the requirements related to reporting and investigating cases of HIB need not lead to additional expenditures because N.J.A.C. 6A:16-7.9 already requires the district to undertake a prompt investigation and to take action once an incident of HIB is identified. The school district responses "at a minimum, shall include support for the victims of harassment, intimidation or bullying and corrective actions for documented systemic problems related to harassment, intimidation or bullying." Ibid.
It is clear that L. 2010, c. 122 does not mandate that additional expenditures be made. As such it cannot be considered an unfunded mandate and Complainant's Summary Judgment Motion should be denied and Respondent's Cross Motion for Summary Judgment should be granted.
POINT III
L. 2010, c. 122 IS NOT AN UNFUNDED MANDATE BECAUSE ALLAMUCHY RECEIVES STATE AID TO PAY FOR A PORTION OF ANY MONEY SPENT ON ITS IMPLEMENTATION.
The allocation of State funds is beyond this Council's jurisdiction. The Council only has the ability to strike down that portion of a statute that it deems to be an unfunded mandate. N.J.S.A. 52:13H-12. As the Council pointed out in Ocean Township, "the Council does not have the authority to determine whether the funding of any statute is adequate." In re Ocean Township (Monmouth County) and Frankford Township, (2002) at 12. The Council may review a Legislature's method of funding only "if that method is seriously flawed to the point of being illusory." Ibid.
In the instant matter, Complainant contends that they may be required to expand additional resources to implement the provisions of the statute. While the state does not concede that Allamuchy needs to expend additional funds to implement L. 2010, c. 122, it notes that Allamuchy receives state aid to defray the cost of some of these programs. Specifically in the 2011 - 2012 school year it received $35,354.00 in security aid4. See, http://www.nj.gov/education/stateaid/1112/district.pdf (Last accessed 11/21/11). Security Aid is provided to all students as a categorical aid. While Security Aid covers costs associated with school security including security guards, metal detectors, and card readers for entering and exiting buildings there is no restriction placed on how a district spends that money. Thus, Security Aid can be used to help defray the cost, if any, of implementing the provisions of L. 2010, c. 122. In light of the fact that Allamuchy received $35,354.00 in Security Aid in the current school year, and that Allamuchy has the discretion to utilize those funds to support any alleged cost of L. 2010, c. 12, this law cannot be an unfunded mandate.
POINT IV
PURSUANT TO N.J.S.A. 52:13H-3(C), L. 2010, c. 122 IS NOT AN UNFUNDED MANDATE BECAUSE IT REVISES L. 2002, c. 83.
Complainant recognizes that the provisions of the previous anti-bullying legislation were proper, yet argues that certain provisions of L. 2010, c. 122 constitute unfunded mandates. See Certification of Timothy Fredericks, Ed.D, at ¶9. As this Council is aware, N.J.S.A. 52:13H-3(c) specifically exempts mandates which repeal, revise or ease an existing requirement or mandate. Because, L. 2010, c. 122 simply revised L. 2002, c. 83 it is not an unfunded mandate.
In the preamble to L. 2010, c. 122, the Act is described as "amending various parts of the statutory law and supplementing L. 2002, c. 83." L. 2002, c. 83, New Jersey's first public school anti-bullying statute, has been amended several times, most recently in 2011 with the passage of L. 2010, c. 122. These revisions to New Jersey's initial anti-bullying statute reflect New Jersey's response to emerging research on bullying as well as the State's continued efforts to combat bullying and harassment in its schools.
As discussed below, L. 2010, c. 122 revises and expounds upon sections of L. 2002, c. 83. First, the short title to L. 2010, c. 122 states that together, L. 2010, c. 122, and L. 2002, c. 83 "shall be known and cited as the "‘Anti-Bullying Bill of Rights Act.'" L. 2010, c. 122, § 1. Where the Legislature's intent is at issue, New Jersey courts have repeatedly held that statutory language is the "best" or "surest" indicator of legislative intent. DiProspero v. Penn, 183 N.J. 477, 492 (2005); Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 231 (1998). From the above language, as well as the word "amending" in the preamble to L. 2010, c. 122, it is facially clear that the New Jersey Legislature's intent in enacting L. 2010, c. 122 was to amend or "revise" the "existing requirement[s] or mandate[s]," N.J.S.A. 52:13H-3, specified in L. 2002, c.83.
Moreover, the provisions of L. 2010, c. 122, as compared to its predecessor L. 2002, c. 83, impart the same responsibilities on schools, albeit in greater detail. For example, Complainant argues that L. 2010, c. 122, §§ 17, which creates a title for a school anti-bullying specialist, is an unfunded mandate. Rather than placing an additional burden on schools, however, this provision merely revises L. 2002, c. 83, § 3(b)(6), which requires schools to adopt an anti-bullying investigation procedure "identifying either the principal or the principal's designee as the person responsible for the investigation." Where L. 2002, c. 83, §(b)(6) requires schools to name the principal or principal's designee as a point person for bullying issues, L. 2010, c. 122, provides a title for that point person. Said title may be conferred on a currently employed school guidance counselor, psychologist or similarly-trained faculty member, and despite Complainant's assertion to the contrary, does not require the creation of a new, paid position.
Similarly, although Complainant takes issue with L. 2010, c. 122, § 18 as an unfunded mandate, this section codifies the requirements of L. 2002, c. 83, § 5. Section 18 of L. 2010, c. 122 requires school districts to assemble a titled "school safety team" including the principal or his designee, a teacher in the school, the school anti-bullying specialist, a parent of a student in the school, and any other members appointed by the principal. This "school safety team," although new in title, expounds on the principles described generally in section 5 of L. 2002, c. 83, which was also amended in Section 14 of L. 2010, c. 122. Section 5 of L. 2002, c. 83 provides for school districts to establish bullying prevention programs and other initiatives involving school staff, students, administrators, volunteers, parents, law enforcement, and community members.
More generally, section 14 of L. 2010, c. 122, revising section 5 of L. 2002, c. 83, requires schools to provide training on HIB policies, as well as bullying prevention techniques to all school employees and volunteers who have significant contact with students. Whereas training programs were "encouraged," in L. 2002, c. 83, § 5, and not required, the requirement as specified in section 14 of L. 2010, c. 122 is not new. It follows the spirit of L. 2002, c. 83, which requires schools to develop and implement policies prohibiting HIB. Although training programs are not explicitly required in the 2002 statute, it logically follows that for schools to effectively implement the required HIB policies, school personnel must be trained on the behaviors that constitute HIB. By explicitly requiring training of school personnel and volunteers on harassment, intimidation, and bullying, Section 14 of L. 2010, c. 122 codifies what schools already should have been doing in compliance with L. 2002, c. 83.
Moreover, requiring bullying training of all school personnel, L. 2010, c. 122 reiterates the requirements of N.J.A.C. 6A:16-7.9 which was enacted prior to L. 2010, c. 122. Almost identical to L. 2002, c. 83, N.J.A.C. 6A:16-7.9 requires each district board of education to "develop, adopt, and implement a policy prohibiting harassment, intimidation, or bullying." This policy must be publicized, and "shall appear in any publication of the school district that sets forth the comprehensive rules, procedures, and standards of student conduct pursuant to N.J.A.C. 6A:16-7.1, for schools within the school district." N.J.A.C. 6A:16-7.9(a)(2)(xii)(1). Because N.J.A.C. 6A:16-7.1 establishes the requirement for school district to establish codes of conduct, it follows that it requires each district's anti-bullying policy be publicized in the school district's student code of conduct.
Related to this requirement, the N.J.A.C. further requires that district employees receive annual training on district's student code of conduct. See N.J.A.C. 6A:16-7.7(c), stating that "district boards of education shall provide to all district board of education employees training annually on the code of student conduct, which shall include training on the prevention, intervention, and remediation of student conduct in violation of the district board of education's code of student conduct." Because each school district is required to provide all school personnel annual training on the student code of conduct, and because in the code of student conduct, school district must include the district's required anti-bullying policy, it is clear that requiring HIB training is not an unfunded mandate. If anything, it simply revises the already existing requirements of N.J.A.C. 6A:16-7.1 that requires the annual training of school personnel to include training of non-employees who have significant contact with students.
Because N.J.S.A. 52:13H-3(c) specifically exempts mandates which repeal, revise or ease an existing requirement or mandate and because, L. 2010, c. 122 simply revised L. 2002, c. 83, it is not an unfunded mandate. It must be acknowledged that in limited circumstances this exemption is inapplicable. However, it is only in those circumstances where "a regulation changes an earlier obligation and that change has the clear potential to increase a claimant's funding obligation...." In the Matter of Complaints Filed by the Highland Park Board of Education and the Borough of Highland Park, (1999) at 25 [emphasis added]. For the reasons set forth in Point II, infra. Claimant cannot demonstrate a clear potential to increase its funding obligation and therefore the exception should apply here and L. 2010, c. 122 should not be deemed an unfunded mandate.
CONCLUSION
For the forgoing reasons, Complainant's Summary Judgment Motion should be denied and Respondent's Cross Motion for Summary Judgment should be granted.
1 Because they are closely intertwined, the Procedural History and Statement of Facts are combined for the convenience of the Court and of the parties.
2 See also the Assistant Secretary for the Office of Civil Rights of the U.S. Department of Education, Russlyn Ali's October 26, 2010, "Dear Colleague Letter," concerning recipients' obligations to protect students from student-on-student harassment, intimidation, or bullying on the basis of race, color, national origin, sex or disability. http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html (last accessed 11/15/11)
3 As was stated by this Council in In the Matter of a Complaint Filed by the Township of Medford, concurring opinion, (2009) at 12 "Where there is choice, there is no mandate." Because additional expenditures are not required to implement the statute there is no mandate.
4 Security Aid is a type of Categorical Aid. Categorical Aid is a separate type of revenue stream provided to districts in addition to other types of State aid. This type of aid does not consider a district's wealth or ability to raise local funds. Abbott ex rel. Abbott v. Burke, 199 N.J. 140, 222 (2009).
The above is the Procedural History, Statement of Facts and the Legal Argument of the Respondent, Department of Education in their Letter Brief in Opposition to Claimants Summary Judgment Motion and in Support of Respondent's Cross Motion for Summary Judgment, on November 25, 2011.
New Jersey State Bar Association's Request to Appear as Amicus Curiae:
"The New Jersey State Bar Association ("NJSBA") submits this Request to Appear as Amicus Curiae to oppose the Petition seeking to declare non-mandatory and expired certain portions of the New Jersey Anti-Bullying Bill of Rights, P.L. 2010 c. 122, enacted January 5, 2011 ("NJABBR" or "Act"). The Act is narrowly-tailored and seeks to further define, protect and clarify the rights of bullying victims while providing all students with a Free and Appropriate Public Education, as required by the New Jersey Constitution. It was enacted in response to an epidemic of bullying, cyber-bullying and suicides affecting public schools across the country. It fills a vacuum of liability and procedure by providing school districts with a clear roadmap for recognizing and remediating acts of harassment, intimidation and bullying ("HIB") that negatively impact educational processes and students' progress in schools and in society. Finally, it strengthens New Jersey's existing laws aimed at curbing and, ideally, eliminating the proliferation of bullying and suicides occurring in recent years, and tackles a new and vehement strain of harmful conduct being visited on student victims with the advent of electronic and social media such as Facebook, Myspace and other means occurring off school grounds, which have a negative and harmful impact on the school environment.
Three obvious issues place the NJABBR beyond the scope of the Council's review, necessitating dismissal of the instant challenge before the Council. First, the Council's prior decisional law has consistently held that the Council will not inquire into a law that, on its face, creates an internal funding mechanism. While the NJABBR presents no new, mandatory costs to be incurred, the text of the Act creates a Bullying Prevention Fund in the Department of Education to which a school district can apply for reimbursement if it chooses to incur expenses.
Second, the NJABBR follows the seminal 2007 New Jersey Supreme Court ruling in L.W. v. Toms River Regional Schools, 189 N.J. 381 (2007) which held that the civil rights guaranteed by the New Jersey Constitution and embodied in the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (LAD), extends to all citizens including public school students. L.W. established a standard of vicarious liability for school districts, manifesting in them equal liability for the harm caused by bullies akin to that of employers who fail to stop employees who engage in harassment in the workplace. Thus, the NJABBR was directly responsive to our State Supreme Court's holding in L.W. mandating that school districts protect students' State Constitutional rights as embodied in the LAD, placing it squarely within the exemptions specified in the Constitution and, thus, outside of review by the Council on Local Mandates.
The Act also served to update the existing New Jersey anti-bullying statute and to streamline and clarify the law to better prevent HIB. Where a school district's efforts fail to prevent HIB a procedural model for the school district to investigate and address that Constitutional violation must be in place. The Act actually serves to potentially reward school districts with certain liability protections and immunity - with no added costs to a school districts budget.
Third, the Act follows the dictates of several federal laws and rules, particularly those dealing with discrimination issues, and also sets forth the possible eligibility standard for federal entitlement funds.
Moreover, the face of the NJABBR and the facts of this case support the position that the Act imposes no unfunded obligations or costs on New Jersey School districts. The NJABBR is carefully drafted so as to not require any new personnel hiring nor any other additional expenditure of money for materials or trainings beyond what was already required by State laws and regulations. Examples of the fiscal conservatism in the Act abound: the Act simply requires that existing school district trainings (that are already mandatory under the law that the Act modified) now include education on, inter alia, cyber-bullying and suicide prevention; the Bullying Coordinator who is to handle any complaints of HIB is expressly proposed to be a person already on staff in the school district; and the text of the Act creates a Bullying Prevention Fund in the Department of Education to which a school district can apply. Furthermore, any training required under the Act is available at no cost to school districts from various non-profit sources, such as the New Jersey State Bar Foundation, the NJSBA's educational arm, should a school district decide to avail itself of such opportunities.
The Fiscal Note prepared by the independent Office of Legislative Services (OLS) confirms that the Act imposes no unfunded mandates on New Jersey school districts. The OLS Fiscal Note opines that the Act provides a simple mechanism for compliance that avoids cost outlays.
Lastly, the NJSBA submits that the NJABBR not only implements provisions of the New Jersey Constitution and builds upon existing law, but it also represents landmark legislation that fosters community partnerships as a means of advancing one of the greatest legislative policy objective there is: to make public education safer and better."
The above is the pleading summary submitted by Sharon A. Balsamo, Esq., on behalf of the New Jersey State Bar Association's Request to Appear as Amicus Curiae, on November 29, 2011.
Allamuchy Township Board of Education's Memorandum response to the State of NJ DOE's application for summary judgment:
"This memorandum is being submitted on behalf the claimant Allamuchy Township Board of Education [hereafter: "Allamuchy"]. Allamuchy submits this memorandum and the accompanying certification of Peter Pearson in opposition to the cross motion of the Respondent, State of New Jersey, for summary judgment and also in support of Allamuchy's application for summary judgment. This memorandum will serve as Allamuchy's pleading summary of this procedural step.
Allamuchy has moved for summary judgment. In support, Allamuchy has submitted the certification of Timothy Frederiks, the chief school administrator for the District. The State has cross moved. Although the State in its answer to the original complaint and in the response and cross motion to Allamuchy's pleadings, denies the factual assertions of Allamuchy, the State has submitted no admissible evidence through certification or public record with the exception to a reference to state aid figures for the fiscal year 2011-2012. The State has raised several points for which facts had not been initially offered but which now are directly addressed in the certification of Peter Pearson. The facts, uncontroverted by the State, are set forth hereafter.
The Allamuchy Township School District [hereafter: "ATSD"] is a pre-kindergarten through grade 8 school district providing educational services to 427 students from Allamuchy Township. The ATSD provides such services in two schools, the Mountain Villa [hereafter: MV] School for pre-kindergarten through grade 1 students and the Allamuchy Township School [hereafter: ATS] for grade 2 through grade 8 students. The ATSD employs 9 teachers at the Mountain Villa School and 28 teachers at the Allamuchy Township School. At ATS there is one full time certificated administrator, the principal, Seth Cohen, Ed.D. At the Mountain Villa School, Timothy Frederiks, Ed.D. acts as the full time certificated administrator, namely the principal, in addition to his duties as CSA.
The implementation of the new Harassment, Intimidation and Bullying law [hereafter: HIB] has imposed significant additional duties on the administration of the district. As a result, Dr. Cohen, the principal of ATS, and Dr. Frederiks, as the CSA and to a lesser degree as principal of MV, spend a significant amount of time, in addition to the time spent previous to the adoption of the HIB law, on the mandated procedures under HIB. This additional expenditure of time has indirect financial consequences.
Before HIB was enacted, the ATSD had adopted policies in conformance with the then existing law that effectively addressed conduct that now is defined as HIB under the new law. ATSD crafted procedures that did so efficiently and that were tailored to the size and organization of the district. It was not a significant drain of the attention and energy of the administration. The administration was able to address effectively any HIB within the district's traditional disciplinary processes.
Now the law requires several additional procedural steps including personal notification of parents or guardians for every complaint possibly invoking HIB, conducting formal investigations on every such complaint, preparing written reports on such investigations and then preparing reports monthly for the board of education on such complaints and investigations. This has increased the administrative work load by an estimated 10%. While this has not translated into a discrete financial expenditure and therefore a direct unfunded mandate, it has caused the administration to focus a significant amount of additional time on HIB than previously and more importantly to the exclusion of other activities designed to further advance student learning. Although the cost is not readily quantifiable, there is clearly a reallocation of significant district financial resources from student learning to HIB. The additional procedures have added only inefficiency to what was, for us, a rather efficient and effective system for addressing HIB.
The law requires ATSD, among other things, to annually establish and implement bullying prevention programs designed to create school-wide conditions to prevent and address harassment, intimidation, and bullying. These are new programs. Based on suggestions from the State Department of Education ATSD has identified the Olweus Bullying Prevention Program as an appropriate program to discharge the new obligations of the law. The initial cost of the program is $6,000 with an annual subscription update of $1,000. The ATSD has secured partial funding, approximately $4,000 from the local PTO and the Allamuchy Education Foundation. The remainder is to be funded from the district's budget.
The law refers to a Bullying Prevention Fund as a potential source of funding for programs described above. The law indicates that a District can apply to the Department of Education for a grant from that Fund. The ABOE inquired of the Department of Education about applying for a grant. The Department advised that the Legislature has appropriated no money to the Fund and therefore no process has been established. Moreover, ATSD directly requested that the State Department of Education fund the additional mandated costs as allowed by the preexisting legislation. By their failure to respond, the State has effectively denied that request.
The law has also required the ATSD to establish a district anti-bullying coordinator and a school anti-bullying specialist in each of its two schools. The law also required the establishment of a school safety team for each, to which the law assigns specific duties. One of the mandatory positions must be filled by a teacher in the school. ATSD filled those positions as follows:
District anti-bullying coordinator - Dr. Cohen, who also serves as the principal of ATS
ATS anti-bullying specialist - Julie Profito, the district guidance counselor
MV anti-bullying specialist - Julie Profito, the district guidance counselor
ATS safety team teacher member - Jennifer Chickey, Christine Rodriquez
MV safety team teacher member - Jennifer Sauter.
Dr. Cohen is an administrator. As such, his appointment as district anti-bullying coordinator has not generated any direct additional expenditure. It has, however, required ATSD to reallocate his time and attention to the HIB process rather than student learning and other administrative functions. This poses an indirect cost to the district.
Ms. Profito is the district guidance counselor. She has duties in both of the district's schools. That has allowed ATSD to appoint one person to do perform both functions. Although she is a guidance counselor, her job description under which she work does not include the title or the specific duties of the anti-bullying specialist. She is a member of the local bargaining unit of the teaching staff, the Allamuchy Education Association. The ABOE and the Allamuchy Education Association have not reached agreement on the amount of compensation for this additional position and these additional duties.
The ATSD has filled the positions for each school safety team, including the position of teacher members as listed above. These teacher positions must be filled by a teacher from each school. All of these teachers are members of the Allamuchy Education Association. The ABOE and the Allamuchy Education Association have not reached agreement on the amount of compensation for this additional position and these additional duties.
Part of the difficulty in negotiating the amount of stipends is that the Department of Education has not yet issued regulations or guidelines on implementation of HIB. Another element of uncertainty, related to the absence of guidelines is that the application of the law to every day settings and a deeper understanding of what constitutes HIB is still evolving. While there is a significant amount of time that the district anti-bullying coordinator and the school anti-bullying specialists must spend on meeting the requirements of the HIB law, it is hoped that as it evolves the dedication of time will diminish. Hence, finding an appropriate amount for a stipend must also evolve. Likewise, the uncertainty the time requirements of the safety team render uncertain a proper amount of a stipend for a teacher's serving on the team. It may ultimately result that the stipend will be negotiated only after sufficient time and experience has occurred to gauge accurately the time commitment with ultimate payment being made retroactively. We anticipate that the stipend for the anti-bullying specialist may be as much as $4,000 and the safety team member $2,000.
The law also requires the district to provide a range of responses to a confirmed incident of HIB. Many of the responses are within the district's usual disciplinary regimen. However, some, such as counseling, support services, intervention services and others, to be defined by the Commissioner of Education, all would require the district to incur additional costs because ATSD is not equipped to provide such services within the district. ATSD would have to contract for the provision of outside professional services.
The State has offered that ATSD receives State Aid, an element of which is denominated as Security Aid. The State suggests that this aid specifically reimburses ATSD for any newly or additionally mandated costs associated with HIB. Security Aid to ATSD decreased from fiscal year 2009-10 to 2010-11 and remained unchanged from 2010-11 to 2012. In the transmittal advice to ATSD, the State has never suggested in any way that Security Aid was intended to reimburse the ATSD for any newly or additionally mandated costs associated with HIB.
The matter before the Council is one of unfunded local mandates. This matter presents only the issue of the constitutional prohibition on the imposition on a local governmental unit, the Allamuchy Board of Education, of the necessity to fund new requirements from local sources. Allamuchy is not questioning the underlying policy goals of combating harassment, intimidation and bullying. Indeed, ATSD takes no issue with the goal of effectively combating harassment, intimidation and bullying. The district has historically cultivated a caring and familial atmosphere in its relatively small student population by using its own internal procedures and policies. ATSD objects to the imposition of costs to comply with the new required programs and procedures.
EXEMPTIONS
Constitutional Implementation
The State suggests that the Anti-Bullying Bill of Rights Act of 2011 [HIB] qualifies as one of the exemptions under the New Jersey Constitutional prohibition for unfunded mandates and the implementing legislation. Specifically, the State suggests that HIB implements the Thorough and Efficient Education clause of the New Jersey Constitution. N.J. Const. Art. VIII, §IV,¶1.
This issue has been addressed previously by the Council on Unfunded Mandates in In the Matter of Complaints Filed by the Highland Park Board of Education and the Borough of Highland Park (Council on Local Mandates August 5, 1999). As the Council noted:
* * * The Thorough and Efficient Clause of the Constitution requires the Legislature to "provide for the maintenance and support of a thorough and efficient system of free public schools. . . ." N.J. Const. art. VIII, § 4, ¶ 1. The Legislature has long struggled to accommodate judicial interpretation of what is required to provide a thorough and efficient education. See N.J.S.A. 18A:7F-2a(2) ("Although the New Jersey Supreme Court has held that prior school funding laws did not establish a system of public education that was thorough and efficient, the court has consistently held that the Legislature is responsible to substantively define what constitutes a thorough and efficient system of education responsive to that constitutional requirement."). * * *
Further review of the statutory history, however, shows that the exemption was not intended to remove from the Council's jurisdiction all rules or regulations related to education. The interpretive statement accompanying the ballot initiative and the discussions at the public hearings serve as evidence that educational mandates were a motivating factor behind the ballot initiative. The Commissioner and Greater Brunswick are almost matter of fact in asserting that because the subject spending is for education, it necessarily implements the Thorough and Efficient Clause. But their argument proves too much. Following their reasoning, any educational spending would appear to implement the Thorough and Efficient Clause. That interpretation is clearly at odds with Article VIII, section 2, paragraph 5(a) of the New Jersey Constitution, and with the LMA. Both the Amendment and the LMA contemplate the Council's power over educational rules and regulations; otherwise the exemption would swallow the rule.
The New Jersey Constitution empowers the Legislature "to substantively define what constitutes a thorough and efficient system of education," and the Legislature provides such a definition in CEIFA. See N.J.S.A. 18A:7F-2(a)(2) and (b)(1). CEIFA demonstrates "the legislative determination that a thorough and efficient education can be provided . . . in accordance with specific substantive standards that define the content of a constitutionally sufficient education and in accordance with performance assessments that measure levels of educational achievement." Abbott v. Burke, 149 N.J. 145, 161 (1997). The Commissioner set forth those curriculum standards, and the Department of Education subsequently adopted those standards. See ibid. CEIFA also specifies a level of financial support sufficient to provide those programs and services. See N.J.S.A. 18A:7F-2b(3). The "T&E range" is the "range of regular education spending which shall be considered thorough and efficient." See N.J.S.A. 18A:7F-3.
Distilled to its essence, the Thorough and Efficient Education Clause addresses school funding. The creation and implementation of a program for the prevention of certain conduct is unrelated to a scheme of school funding except by virtue that any such program must be funded in order to be implemented. Moreover, when enacting HIB, the Legislature set forth its findings justifying the legislation as follows:
The Legislature finds and declares that:
a. A 2009 study by the United States Departments of Justice and Education, "Indicators of School Crime and Safety," reported that 32% of students aged 12 through 18 were bullied in the previous school year. The study reported that 25% of the responding public schools indicated that bullying was a daily or weekly problem;
b. A 2009 study by the United States Centers for Disease Control and Prevention, "Youth Risk Behavior Surveillance," reported that the percentage of students bullied in New Jersey is 1 percentage point higher than the national median;
c. In 2010, the chronic persistence of school bullying has led to student suicides across the country, including in New Jersey;
d. Significant research has emerged since New Jersey enacted its public school anti-bullying statute in 2002, and since the State amended that law in 2007 to include cyber-bullying and in 2008 to require each school district to post its anti-bullying policy on its website and distribute it annually to parents or guardians of students enrolled in the district;
e. School districts and their students, parents, teachers, principals, other school staff, and board of education members would benefit by the establishment of clearer standards on what constitutes harassment, intimidation, and bullying, and clearer standards on how to prevent, report, investigate, and respond to incidents of harassment, intimidation, and bullying;
f. It is the intent of the Legislature in enacting this legislation to strengthen the standards and procedures for preventing, reporting, investigating, and responding to incidents of harassment, intimidation, and bullying of students that occur in school and off school premises;
g. 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 to make our schools safer for students;
h. In keeping with the aforementioned goal of fiscal responsibility and in an effort to minimize any burden placed on schools and school districts, existing personnel and resources shall be utilized in every possible instance to accomplish the goals of increased prevention, reporting, and responsiveness to incidents of harassment, intimidation, or bullying, including in the appointment of school anti-bullying specialists and district anti-bullying coordinators;
i. By strengthening standards for preventing, reporting, investigating, and responding to incidents of bullying this act will help to reduce the risk of suicide among students and avert not only the needless loss of a young life, but also the tragedy that such loss represents to the student's family and the community at large; and
j. Harassment, intimidation, and bullying is also a problem which occurs on the campuses of institutions of higher education in this State, and by requiring the public institutions to include in their student codes of conduct a specific prohibition against bullying, this act will be a significant step in reducing incidents of such activity.
N.J.Laws 2010 ch.122 §2 codified at N.J.S.A 18A:37-13.1. Conspicuously absent is any invocation of the Thorough and Efficient Education Clause of the New Jersey Constitution.
As for the litany of cases cited by the State, none even hint at the proposition that the Thorough and Efficient Education Clause of the New Jersey Constitution is implemented by HIB. The cases focus on extending civil liability, whether under common law principles or other statutory authority, to Boards of Education. As such they cannot stand even on an attenuated basis as authority that HIB is an implementation of the Thorough and Efficient Education Clause of the New Jersey Constitution.
HIB As a Revision of Prior Law
The State suggests that HIB qualifies as an exemption from the prohibition on unfunded local mandates because it revises a prior law, N.J. Laws 2002 ch. 83. The Council has already addressed the proper analysis for this exception in In the Matter of Complaints Filed by the Highland Park Board of Education and the Borough of Highland Park, supra. There the Council noted:
Research has not uncovered any legislative history regarding this exemption. Likewise, no New Jersey statute incorporates the phrase "repeal, revise or ease." In the absence of any explicit indication of legislative intent, courts sometimes rely on the doctrine of ejusdem generis. The principle of ejusdem generis provides that when general words follow an enumeration of more specific things, the general words should be construed as being of the same class as those enumerated. See Denbo v. Township of Moorestown, 23 N.J. 476, 482 (1957). Here, the statute provides that regulations are not unfunded mandates where they "repeal, revise or ease" an existing requirement. See N.J.S.A. 52:13H-3(c). Under ejusdem generis, "revise" should be interpreted consistently with the more specific terms, "repeal" and "ease," as Highland Park suggests in its brief.
As indicated above, to qualify as an exemption the succeeding legislation must act to ease or repeal a previous requirement of the law. HIB does no such thing. It adds on new obligations and procedures without funding them.
STATE AID
The State suggests that if there are any costs that ATSD has incurred as a result of HIB, State Aid meets any such additional and new expenditures thereby making such local mandate funded. The State specifically refers to aid that is denominated as Security Aid.
The State fails to take into account the fact that since the adoption of the HIB legislation, ATSD's Security Aid has not changed to match the increased costs. Costs directly attributable to HIB have increased but the aid ostensibly devoted to defray such costs has not increased. Such costs remain unfunded.
Moreover, the suggestion that Security Aid is somehow a funding source for costs associated with HIB is feckless. Security Aid is a statutory creation and is determined by a statutory formula:
Security categorical aid for each school district and county vocational school district shall be calculated as follows:
SA = ((RE x $70) + (ARENR x ARSA)) x GCA
where
RE means the school district's or county vocational school district's resident enrollment;
ARENR means the district's number of at-risk pupils;
ARSA means the at-risk security amount; and
GCA is the geographic cost adjustment as developed by the commissioner.
For the 2008-2009 through 2010-2011 school years the at-risk security amount shall be calculated as follows:
for a district in which the concentration of at-risk pupils is less than 40% of resident enrollment, the at-risk security amount shall equal the district's (AR% x $10.15 x 100); and
for a district in which the concentration of at-risk pupils is equal to or greater than 40%, the at-risk security amount shall equal $406.
The security cost coefficients, $70, $10.15 and $406, used to determine the security amount, shall be adjusted by the CPI in the 2009-2010 and 2010-2011 school years as required pursuant to subsection b. of section 4 of this act. For subsequent school years, the cost coefficients shall be established in the Educational Adequacy Report, with adjustments by the CPI for each of the two school years following the first school year to which the report is applicable.
N.J.S.A. 18A:7F-56. Costs associated with HIB have no nexus to Security Aid. The argument of the State in this regard fails.
COSTS
The State suggests that the law does not impose unfunded mandates on ATSD because the law does allow for some flexibility in assigning personnel and developing programs including training programs. However that flexibility transforms to inflexibility with a school district of such a small size as ATSD. There are not enough administrators to assign to the various tasks. Teachers and others who are members of the collective bargaining unit must fulfill some positions either by direct mandate or by necessity due to personnel limitations of ATSD. This situation was predicted the Office of Legislative Services as part of their analysis of the proposed legislation which became HIB. The exact language of fiscal analysis, in relevant part, is as follows:
Assembly Bill No. 3466 (1R) contains certain provisions that will likely lead to an indeterminate increase in expenditures by local school districts. Section 17 requires that each school principal assign a current staff member to serve as the school's anti-bullying specialist. The bill requires that the principal appoint a guidance counselor, school psychologist, or similarly trained staff member if such an individual works in the school; otherwise, the principal must appoint another individual who is currently employed in the school. The same section of the bill requires that the superintendent appoint an individual, preferably a current employee of the district, to serve as the anti-bullying coordinator. Under section 18, the principal must assign individuals, including a teacher in the school, to serve on the school safety team. The types of personnel specified in the bill who would serve as the anti-bullying specialist or on the school safety team are generally members of collective bargaining units and have salaries that are determined pursuant to existing collective bargaining agreements. These agreements specify additional compensation that an individual will receive to perform additional duties or to serve on committees. Presumably, appointing such a staff member to serve as the anti-bullying specialist or on the school safety team would require additional compensation to be determined by the collective bargaining agreement. Since the person who would be appointed to serve as the district's anti-bullying coordinator is not specified in the bill, it is possible that the superintendent would assign the duties to someone who is not a member of a collective bargaining unit and would not need to provide additional compensation. However, while the bill encourages the superintendent to appoint an existing staff member to be the anti-bullying coordinator, the hiring of an additional person would be permissible and would generate an additional local cost.
Current law provides that schools are "...encouraged to establish bullying prevention programs and other initiatives..." Assembly Bill No. 3466 (1R) would make the implementation of such programs and approaches mandatory. The extent to which this provision may increase costs to local school districts is indeterminate; however, the fiscal effect would be contingent on two factors. First, if a school has already implemented a program or other initiative to prevent harassment, intimidation, and bullying based on current law, then the school would not incur any new costs as a result of this provision. Second, among schools that have not yet implemented such a program, the incurrence of additional costs would depend on how the school elects to satisfy this provision. The language included in the bill appears to provide schools with flexibility in determining what program, approach, or other initiative it will implement and would appear to include the development of a "home grown" program or approach, the use of training material that is available at no cost, or the purchase of a commercially available program.
One such commercially available program specifically mentioned by the Office of Legislative Services is the Olweus Bullying Prevention Program:
One example of a commercially available bullying prevention program for which cost data are readily available is the Olweus Bullying Prevention Program. The cost of this program is estimated to be between $1,500 and $3,200 per school, depending on the size of the school.
Id. This program is in fact necessary in part because the new legislation requires a broad array of personnel to be trained in the prevention of and administration of procedures concerning harassment, intimidation and bullying. The new proposed trainees include members of the Board of Education, substitutes, non-certificated staff and certain members of the public who may serve on the required safety committees. These trainees are not within the usual scope of professional development in which administrators and certified teachers found. The training of these individuals are beyond the ken of experience of the administration thereby making particularly appropriate the acquisition of formal training programs from commercial sources. In addition, the scope of conduct outside the school setting that the new law reaches also requires new training perspectives. The same experience in training applies to the implementation of bullying prevention programs within the school and attendant community. While ABOE had previously adopted policies regarding bullying for the immediate school community, the new law has instituted such broadly sweeping procedural and cultural changes, both within and outside the schools, that it would be unreasonable to adapt any preexisting programs to the new law.
Moreover, the law has authorized new and additional remedies for acts of bullying including counseling, support services, intervention services and others, to be defined by the Commissioner of Education. The authorization of these remedies creates an expectation that where appropriate the ATSD will cause them to be provided thereby incurring costs. The State has not provided for any of these costs.
The ATSD will incur the following costs, as yet not quantified with certitude because they are subject to collective bargaining:
- $4,000 for an Anti-bullying specialist;
- $2,000 for each of the three teacher safety team members;
- $2,000 for the Olweus Anti-bullying program plus an additional $1,000 annually for updates;
- and an unspecified amount for services in remediation of bullying.
None of these costs have been provided for in any State appropriation. They are all needed to implement the mandate of the Anti-Bullying Bill of Rights. As such, they run afoul of the New Jersey Constitution.
For the foregoing reasons, complainant, Allamuchy Township Board of Education, requests that the Council on Local Mandates enter judgment as follows:
- A. Declaring that section 14 of P.L. 2010ch.122 amending section 5 of P.L. 2002 ch.8 (NJS 18A:37-17)which statute requires schools and school districts annually to establish, implement, document and assess bullying prevention programs or approaches and other initiatives involving school staff, students, administrators, volunteers, parents, law enforcement and community members so as to create school-wide conditions to prevent and address harassment, intimidation and bullying is an unfunded mandate in violation N.J.Const. art VIII, §2, ¶5 and NJSA 52:13H-2 and shall cease to be mandatory in effect and shall expire.
- B. Declaring that section 17 of P.L. 2010 ch. 122 which is codified at NJSA 18A:27-20 which statute requires local school districts to create and staff new work titles of anti-bullying specialist and anti-bullying coordinator and to train those individuals is an unfunded mandate in violation N.J.Const. art VIII, §2, ¶5 and NJSA 52:13H-2 and shall cease to be mandatory in effect and shall expire.
- C. Declaring that section 18 of P.L. 2010 ch. 122 which is codified at NJSA 18A:37-21 which statute requires each school district to establish a school safety team in each school is an unfunded mandate in violation N.J.Const. art VIII, §2, ¶5 and NJSA 52:13H-2 and shall cease to be mandatory in effect and shall expire to the extent that any compulsory appointment to the team requires payment of compensation for such service.
- D. Declaring that section 12 of P.L. 2010 ch. 122 amending Section 3 of P.L.2002, c.83 (C.18A:37-15) which statute provides in subsection 3(b)(7) that a district's policies must make provision for "the range of ways in which a school will respond once an incident of harassment, intimidation or bullying is identified, which shall be defined by the principal in conjunction with the school anti-bullying specialist, but shall include an appropriate combination of counseling, support services, intervention services, and other programs, as defined by the commissioner" thereby requiring the district to provide services, all of which are not funded by the State and therefore will requiring local funds is an unfunded mandate in violation N.J.Const. art VIII, §2, ¶5 and NJSA 52:13H-2 and shall cease to be mandatory in effect and shall expire."
The above is the memorandum submitted by Francis Gavin, Board President, on behalf of the Allamuchy Township Board of Education in response to the Respondent's Application for Summary Judgment, on December 15, 2011.
