In light of recent incidents involving bullying in schools in Massachusetts and all over the country, Governor D Patrick signed an anti-bullying bill into law on May 3, 2010 making Massachusetts the 42nd state to pass such a law. Both the Senate and the House of Representatives unanimously passed the bill, and it has quickly become known as one of the strictest anti-bullying laws in the country. The law applies to school districts, charter schools, non-public schools, approved private day or residential schools, and collaborative schools.
Summary of the Law
The law defines bullying as unwelcome and repeated “written, verbal, or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that (1) causes physical or emotional harm to the victim or damage to the victim’s property, (2) places the victim in reasonable fear of harm to himself or of damage to his property; (3) creates a hostile environment at school for the victim; (iv) infringes on the rights of the victim at school; or (v) materially and substantially disrupts the education process or the orderly operation of a school.”
In addition, bullying includes cyber-bullying, which is defined as “bullying through the use of technology or any electronic communication, which shall include, but shall not be limited to, any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications. Cyber-bullying shall also include (i) the creation of a web page or blog in which the creator assumes the identity of another person or (ii) the knowing impersonation of another person as the author of posted content or messages, if the creation or impersonation creates any of the conditions enumerated in clauses (i) to (v), inclusive, of the definition of bullying.”
The law requires all school districts in Massachusetts to adopt and implement a bullying prevention and intervention plan in their schools by December 31, 2010. Shortly after the law was passed, the Department of Elementary and Secondary Education provided a model plan for all school districts statewide to use as a guideline and serve as a resource to schools. School districts, with input from teachers, school staff, professional support personnel, volunteers, administrators, students, parents, guardians, law enforcement, and community representatives, must create a plan to be implemented in each respective school.
The law places great emphasis on the schools’ role in responding to bullying by requiring all school districts to formulate and implement a prevention plan. At a minimum, every plan shall include (i) definitions of bullying, cyber-bullying and retaliation and statements prohibiting each; (ii) clear reporting procedures for students, staff, parents, guardians and others; (iii) a provision that allows anonymous reports as long as no disciplinary action is taken solely on the anonymous report; (iv) prompt investigation of all reports of bullying or retaliation; (v) possible disciplinary actions for the perpetrator as long as the disciplinary actions “balance the need for accountability with the need to teach appropriate behavior;” (vi) clear procedures to restore the victim’s safety and need for protection; (vii) ways to protect a person who reports bullying, provides information for an investigation or provides reliable information about an act of bullying; (vii) procedures for promptly notifying (1) the parents or guardians of a victim of the act as well as the action taken to prevent further acts as long as the notification is consistent with state and federal law and (2) the law enforcement agency if criminal charges may be pursued against the perpetrator; (ix) a provision that a student who intentionally makes a false allegation of bullying or retaliation shall be subject to disciplinary action; and (x) a strategy that provides counseling or appropriate services for perpetrators, victims, and their family members. In order to ensure the prevention plan is successfully implemented in each school, a school official must be designated by the superintendent and school principal to oversee the plan.
Potential Legal Issues
Although the purpose of the law is to prevent bullying in schools, it also creates various potential legal issues for all those involved. These issues not only affect the schools but extend to the persons accused of bullying, their victims, and the respective parents.
Potential Legal Issues for the those Accused of Bullying
A primary concern with the law is the vagueness and lack of uniformity when discussing the disciplinary measures that may be imposed on a student who has engaged in the prohibited behavior. For example, the disciplinary provision only states that each plan must discuss the “range of disciplinary actions that may be taken against a perpetrator for bullying and retaliation; provided, however, that the disciplinary actions shall balance the need for accountability with the need to teach appropriate behavior.” Given that the law does not set forth strict disciplinary guidelines that schools must follow when one student has bullied another and seems to leave discipline in the hands of school districts and schools, it is likely that there will be a lack of consistency across the state, from school to school within districts, and even possibly within the same school. Even though the flexibility of the law allows administrators to handle matters on a case by case basis by looking at the facts before them and making a decision, this lack of uniformity precludes parents and school officials from effectively identifying and preventing such behavior going forward. In addition, if there is a lack of uniformity across the state, schools and courts will struggle to establish meaningful precedent. In order to prevent this from happening, it seems appropriate that the state should have mandated disciplinary actions for various levels of offenses so schools are not left to determine appropriate measures on an individual, subjective basis.
Potential Legal Issues for Schools
School districts now face liability because they are accountable for the implementation and enforcement of these policies. Consequently, districts will be held to a higher standard by reporting to the Department of Elementary and Secondary Education. The main responsibilities of the schools and school employees will be the reporting procedures and the investigation procedures. Both the reporting procedures and the investigation procedures place greater liability on school employees to promptly recognize and identify a problem in order to help victims who are being bullied. Even though their liability is greater than before, the mandated procedures will hopefully protect more victims of bullying; because all school employees must report suspicions of bullying, this will eliminate discretion by requiring all incidents to be reported and investigated.
The first major requirement, the reporting procedure, states that every “member of a school staff, including, but not limited to, an educator, administrator, school nurse, cafeteria worker, custodian, bus driver, athletic coach, advisor to an extracurricular activity or paraprofessional, shall immediately report any instance of bullying or retaliation the staff member has witnessed or become aware of to the principal or to the school official identified in the plan as responsible for receiving such reports or both.” Similar to instances of suspected abuse and neglect, all school employees will be required to report suspected bullying to school administration officials. To ensure that this happens, every school is required to implement annual training for all school employees. However, with this mandate comes the responsibility that school districts, schools, and employees be held responsible for failing to recognize and report a problem, and the law does not provide a penalty for those who fail to report the prohibited behavior. Therefore, it is up to the school districts to ensure that all those responsible receive the proper training.
The second major requirement is the investigation procedure, which mandates investigation procedures that schools need to enforce and follow. This also places greater emphasis on the schools’ role in the prevention plan. One potential problem is that the law does not specifically mandate how in-depth the investigations need to be. Under the law, schools are required to implement “clear procedures for promptly responding to and investigating reports of bullying or retaliation.” However, the law does not provide clear guidance on the level and scope of any such investigations, further complicating the creation and enforcement of a consistent, transparent system. Therefore, it seems more beneficial to explicitly state the investigation procedures so school districts and schools are not later accused of falling short in an investigation.
Potential Legal Issues for Victims of Bullying
Currently, the scope of a school district’s authority under the law only requires the school to intervene if the prohibited behavior takes place on school grounds, on property adjacent to school grounds, during a school sponsored event, or through the use of technology owned or leased by the school. If the behavior occurs elsewhere, the school is only required to get involved if the bullying “creates a hostile environment at school for the victim, infringes on the rights of the victim at school, or materially and substantially disrupts the education process or the orderly operation of a school.” These limitations are potentially problematic because bullying can take place anywhere, which would mean schools are not required to intervene and protect the victim in certain situations. This potentially leaves the burden of identification and notification on the victim and/or their parents. In addition, if a victim does not act outwardly different at school, it will be difficult for teachers and school officials to be able to see or suspect that an incident of bullying has occurred and intervene. It seems that this would leave many victims unprotected, which is exactly what the law is trying to prevent. However, the solution is not straightforward. It would be almost impossible for schools to regulate homes, workplaces, or other areas off school grounds, but this is definitely a hole in the law that may need to be addressed to avoid future potential conflicts.
This law is a much needed start to the prevention of bullying in Massachusetts schools, but it has weaknesses. First, disciplinary measures should be uniform statewide because this law gives school districts too much latitude to determine how to discipline each student who is engaging in the prohibited behavior. Second, the law places great liability on the schools and school employees by requiring reporting and investigation procedures, but it does not provide specific and adequate guidance on how to implement such procedures. This, in turn, leaves the schools and employees extremely vulnerable when reporting and investigating incidents. Finally, the law does not provide complete protection to victims because it only requires schools to intervene when the behavior takes place on school grounds, at school sponsored events, with school technology, or affects a student’s academic performance. Massachusetts is on the right track in terms of implementing bullying prevention programs within schools. However, the new law does not provide complete protection to school districts, schools, employees, and students, making potential legal issues more likely down the road.