"DISTINGUISHING CHARACTERISTICS" AND THE DIFFERENCE BETWEEN NEW JERSEY STATUTORY DEFINITION OF "HIB" VS RESEARCH-BASED DEFINITIONS OF "CLASSICAL" BULLYING

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The New Jersey Anti-Bullying Bill of Rights (ABR) defines “Harassment, Intimidation, or Bullying” (HIB) for New Jersey schools.  This statutory definition of HIB is different from the popular definition of bullying; in other words, what constitutes “HIB” under the law in New Jersey is not necessarily the same as what people traditionally think of as “bullying.”  One of the most important differences between the statutory definition of HIB and the traditional, or “classical,” definition of bullying, is the “distinguishing characteristic clause.”  In the Anti-Bullying Bill of Rights, an incident only qualifies as HIB if it meets several criteria, one of which is that it:

“is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic…”

In other words, in New Jersey, “bullying” is only legally defined as bullying if it is motivated by an actual or perceived characteristic of the targeted student.  If students target a peer at “random,” for no particular reason related to who that student is, then technically, no matter how egregious and damaging their behavior might be, that behavior might not be “HIB” under the law in New Jersey.  Clearly, harmful behavior on the part of some students toward other students should be addressed effectively, regardless of whether that behavior meets the statutory definition of bullying.  However, the fact that some instances of hurtful behavior, including behavior that is clearly “bullying” by any common sense definition of the term, does not meet the statutory definition of HIB, is a source of confusion for school personnel who must figure out how to comply with the law while also protecting students from “bullying.”

What is a "Distinguishing Characteristic"?

The “distinguishing characteristic” clause is also one of the more ambiguous aspects of the ABR.  What constitutes a “distinguishing characteristic”?  When the ABR first went into effect in 2011, there were a variety of interpretations.  Now, more than two years later, some degree of consensus has developed, but there is still considerable room for interpretation and a wide range of opinions about the meaning of the clause.   Some guidance is provided by OAL decisions and the Commissioner of Education’s responses to these decisions.  Among the incidents that have been determined by schools to be HIB,which were upheld upon appeal to the OAL and review by the Commissioner, are incidents in which a student called another student a “fat,” in which a student noted that another student had dyed her hair and might have had head lice, and an incident in which a student called another student “gay”(presumably, as an insult) and said he "danced like a girl.”  In other words, temporary and invisible characteristics can constitute the distinguishing characteristics that qualify an incident as HIB, and single utterances of terms that are derogatory on the basis of both enumerated characteristics as well as insults based on non-enumerated characteristics, can constitute HIB.

The more broadly the “distinguishing characteristic” clause is interpreted--that is, the wider the range of characteristics that qualify as “distinguishing characteristics” for the purpose of determining an incident to be HIB--the more closely the statutory definition of HIB comes to resemble the classical definition of HIB.  Thus, broader interpretations of the “distinguishing characteristic” clause have the potential to reduce confusion over the discrepancies between the statutory definition of HIB and the classical definition of bullying, thus reducing complications for school personnel who have the difficult task of merging legal compliance (based on the statutory definition) with the use of evidence-based effective practices (designed for classical bullying).

Finding a "Distinguishing Characteristic" in A Bullying Incident

Given that students are rarely, if ever, picked truly “at random” to be targets of their peers’ hurtful behavior, it should theoretically be possible to find a “distinguishing characteristic” in any incident of classical bullying.  In general, students are chosen as targets because they are more vulnerable, or different from others in some way.  That difference might be the basis of a prejudice, e.g., it could be an enumerated difference such as race, religion, or sexual orientation.  Or the difference might be some other characteristic that, for some reason, makes that student more vulnerable, more “fun to pick on,” or more difficult for peers to empathize with.  Sometimes, students pick on peers, not because they themselves are prejudiced against, or dislike, that specific peer, but because they want to prove or express something by hurting someone, and they know that that specific peer will not be defended by other classmates.  In other words, it might be the perception that a peer is vulnerable, or disliked by others, that causes a student to choose that peer as a target even in the absence of any personal animosity or disrespect toward that peer.  In a case that is clearly bullying in the classical sense, then, the question to ask is, “why did student(s) choose this peer, and not any other peer, to target?”  If a distinguishing characteristic was not already evident in the situation, the answer to that question can provide the distinguishing characteristic that qualifies the incident as HIB.

The 2014 Annual Report of the New Jersey Anti-Bullying Task Force (ABTF) suggested that, if a power imbalance is evident in a bullying situation, then that power imbalance can be the key to identifying the distinguishing characteristic that can qualify the incident as HIB.  Classical understandings of bullying suggest that a potential bully will choose a target because s/he perceives that peer to have less power than her/himself, so in cases of classical bullying, there will often be a power imbalance from the point of view--the perception--of the bully. A power imbalance implies a relative difference between the aggressor (the actor) and the target.  Therefore, the target’s “half” of that difference--whether actual or perceived as such by the actor--is the distinguishing characteristic that motivated the actor’s behavior.  For example, if the power imbalance is physical, i.e., if a stronger student has physically aggressed against a physically weaker student, then it is the relative physical weakness of the targeted student that constitutes the distinguishing characteristic that motivated the actor to aggress against that particular target.  This approach provides a very insightful and effective way to identity a distinguishing characteristic when one should be identified, and helps school personnel align the statutory definition of HIB with the classical definition of bullying, thus reducing confusion and facilitating evidence-based responses to incidents that should be treated as bullying incidents but might not otherwise be determined to be HIB. 

However, Three Caveats Are in Order:

  1. “Power imbalance” is an aspect of the classical definition of bullying; it is not a criterion in the statutory definition of HIB.  Because of confusion over the differences between the classical and the statutory definitions of HIB, and widespread education, based on the classical definition, that bullying involves a “power imbalance” and that “bullying is not conflict,” some school personnel have the mistaken impression that an incident must involve a power imbalance to be HIB, as well as the related, and also mistaken, impression that if an incident is conflict, it is not HIB.  Given that these types of misunderstandings are already widespread, it is very important to emphasize that the ABTF suggestion that a power imbalance can be the key toward identifying a distinguishing characteristic, does not mean that it has become necessary, or that it ever was necessary, to find a power imbalance in an incident in order to qualify that incident as HIB.  If a distinguishing characteristic is already recognized in an incident, there is no need to look for a power imbalance, and no need to use an observed power imbalance as a means to finding another distinguishing characteristic in order to determine that the incident is HIB.  The statutory criterion is the distinguishing characteristic; HIB does not have to involve a power imbalance.
  2. If the distinguishing characteristic is discovered through the “lens” provided by a power imbalance, then the characteristic thus identified will probably be one that is not flattering to the targeted student.  For example, if the power imbalance is physical strength, then the distinguishing characteristic would be “physical weakness.”  If the power imbalance is popularity, then the distinguishing characteristic would be “lacks friends.”  It would be contrary to evidence-based practices and to the welfare of targeted students, if an HIB investigation--which is supposed to enhance the welfare of students--instead involved the collection and documentation of information that is demeaning to the targeted student.  Therefore, in furtherance of the spirit of the law, it would be important for school personnel to recast such a “distinguishing characteristic” in terms that do not cause the school to re-victimize a student who has already been targeted by a peer.  For example, “physical weakness” could be recast as “body type,” and “lack of friends,” could be recast as “belongs to a different social circle than the aggressor.”
  3. The ABTF suggestion works well when the power imbalance is one that is either actual, or is perceived by the actor.  In cases of classical bullying, this will often be adequate, because presumably the actor chose the target because of the actor’s perception of a power imbalance, i.e., the vulnerability of the victim.  However, the impact of the bullying on the target derives largely from the feelings of powerlessness it invokes in the target.  In other words, it is the target’s experience of powerlessness--inability to defend oneself, or resist successfully--that is at the heart of the harmful impact that bullying has on the target.  In the classical definition of bullying, therefore, the concept of an “actual or perceived” power imbalance refers not only to the perception of the actor but also, and possibly more importantly, the perception of the target.  The ABTF suggestion focuses on the perception of a power imbalance on the part of the actor, but it might also be necessary to remember that the power imbalance might exist in the perception of the target instead, and that if it does, it is as real in its consequences as an actual power imbalance.