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January 28, 2012: New Jersey school anti-bullying law ruled unconstitutional

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Posted by Maria Mangicaro
Bullying Prevention Advocate
mangicaro829@aol.com


Posted: Saturday, January 28, 2012 1:15 am | Updated: 8:51 pm, Thu Mar 8, 2012.

By DIANE D’AMICO Education Writer

Sponsors of the state’s tough new anti-bullying law vowed to continue to fight for the law Friday after it was deemed unconstitutional because the state did not provide money to implement it.

Assemblywoman Valerie Vainieri Huttle D-Bergen, a lead sponsor of the Anti-Bullying Bill of Rights, called the decision by the state Council on Local Mandates devastating for bullied children.

“Rest assured we will review the decision thoroughly to find a way to make this law workable for everyone,” she said.

The Council on Local Mandates was created pursuant to the “State Mandate, State Pay” amendment to the New Jersey Constitution. Under the Constitution, if the council so rules, an unfunded mandate ceases to be mandatory and expires.

The council struck down the law as an unfunded state mandate at a hearing Friday based on a complaint filed by the school district in Warren County, according to Vainieri Huttle and a published report in The Record, Bergen County. The council has not yet issued a written decision; the ruling does not take effect until it does.

The state maintained in its response to the complaint that aid provided to school districts would cover the costs of the law and that existing staff could fill the required anti-bullying coordinator and specialist positions.

However, Allamuchy’s board said there were new costs in implementing new anti-bullying programs and providing training, and to pay stipends to staff named to the new positions.

Senate Majority Leader Loretta Weinberg, D-Bergen, another sponsor of the law, said she will work on a revised version, but noted that many districts have implemented the law with no problems and she hoped those efforts would not be abandoned.

“It is extremely disappointing that something as common sense as protecting our kids and making school a safe, nurturing environment has been so quickly tossed aside,” she said.

The bill was signed into law in January 2011 and took effect in September. While there was agreement that bullying should be addressed, school officials expressed concerns about both time and costs involved in requiring specially designated staff to investigate every potential incident of bullying. At a workshop of school administrators in October there were discussions about proposing modifications to the law.

Click here to read more.

From the Law Office of 

NJ Anti-Bullying Law Still Alive

The viability of the New Jersey Anti-Bullying Bill of Rights Act, which I have discussed in  previous posts (here and there), seemed to be in question after the Council on Local Mandates in New Jersey struck it down as an unfunded mandate. Had the New Jersey Legislature not responded in time, the NJ Anti-Bullying Law would have expired on March 27, 2012.

Most people have never heard of the Council of Local Mandates. This is not surprising, since the Council was created in 1995, which is quite recent.  Another reason why most people have never heard of the Council is because the Council’s powers are very limited and can only be exercised in limited circumstances.

In essence, the Council has the “exclusive constitutional authority” to  strike down a law, rule, or regulation that “imposes an unconstitutional ‘unfunded mandate’ on boards of education, counties, or municipalities.”

On January 27, 2012, the Council of Local Mandates struck down parts of the New Jersey Anti-Bullying Law because it is an “unfunded mandate.”

What is an “unfunded mandate”? In simple terms: When a local government entity is required to comply with or implement a statute, rule, or regulation, but there is no money (other than local property taxes) to enable the entity to comply with the law, it is an “unfunded mandate.”

Unfunded mandates are unconstitutional under the New Jersey Constitution,  Art. VIII, § 2, ¶ 5. When the New Jersey Legislature enacts a new law, it must appropriate funds to local government entities so that these entities can comply with the law.

When the New Jersey Legislature enacted the Anti-Bullying Bill of Rights Act, the Legislature created a special fund called the “Bullying Prevention Fund.” The money in this Fund would be used to offer grants to school districts to  comply with the NJ Anti-Bullying Law, such as training personnel and hiring more staff if necessary.

But there was apparently no money in the Fund.

So, on September 2011, the Allamuchy Township Board of Education filed a complaint, alleging that no funds had been appropriated for the Bullying Prevention Fund in order for school districts to comply with the NJ Anti-Bullying Law. Therefore, the NJ Anti-Bullying Law was an unfunded mandate. See In re Complaint filed by the Allamuchy Township Board of Education.

The State of New Jersey answered the complaint, requesting that the complaint be dismissed. Allumuchy Township moved for summary judgment. Then, the State of New Jersey cross-motioned for summary judgment.

Over the next several weeks, numerous papers were filed by several special interest organizations. The New Jersey State Bar Association, the LGBTQ Cacus of Rutgers School of Law, and the New Jersey Department of Education, all filed amicus curiae briefs in support of the Anti-Bullying Law. Not surprisingly, a number of Board of Educations filed papers in support of Allamuchy’s position to overturn the law.

All of these events (and corresponding documents) are well documented on the Council of Local Mandates’ website.

On January 27, 2012, a hearing was held. On that same day, the Council determined that the New Jersey Anti-Bullying Law was an unfunded mandate.

Click here to read more.

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