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Bullying Prevention Law Expanded To Cover Bullying By School Employees

[August 22, 2013]  The Massachusetts Bullying Prevention Law, M.G.L. c. 71, sec. 37O, has been amended.  The amendments, which are nominally effective July 1, 2013, expand the protections afforded to students to include bullying by school staff.

Specifically, the definition of “bullying” has been expanded to include the repeated acts of not only one or more students, but also “a 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 . . .

Similarly, the definition of “perpetrator” has been amended to include, in addition to a student, “. . . a 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 who engages in bullying or retaliation.”

Finally, subsection (d) of the law, which refers to the requisite bullying prevention and intervention plan, has been revised to provide that the plan “. . . shall apply to students and members of a school staff, including, but not limited to, educators, administrators, school nurses, cafeteria workers, custodians, bus drivers, athletic coaches, advisors to an extracurricular activity and paraprofessionals.

In light of these amendments, we recommend that each school:

  • Revise the anti-bullying policies in its student and employee handbooks to incorporate these new mandates as well as to update the policies for recent best practices;
  • Revise the bullying prevention and intervention plan on its website to incorporate these new mandates as well as to update the plan for recent best practices; and
  • Provide educational sessions for employees regarding this significant change in the law.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about the Massachusetts Bullying Prevention Law or its requirements.

Gender Identity: A New Challenge For Schools

[July 22, 2013]  Recently, a first-grader in Colorado who was born a boy but identifies as a girl was awarded the right to use a girls’ restroom at school.  In its decision, the Colorado Division of Civil Rights noted that the school’s prohibition on the first-grader’s use of the girls’ restroom had created an environment that was “objectively and subjectively hostile, intimidating or offensive.”  Similar cases have surfaced across the country.  For example, the Maine Supreme Judicial Court recently heard a similar case: the question was whether a boy who identifies as a girl is entitled to use a girls’ restroom at school, under Maine’s human rights law.

As these cases illustrate, gender identity issues at schools can create both practical and legal challenges.  Some of the questions that consistently arise in these cases are: which bathroom can the student use? Which pronoun should be used when referring to the student who is of one gender, but identifies with another?  School policies and practices that do not properly address gender identity issues can expose schools to potential legal liability.  At least thirteen states (i.e., California, Colorado, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, North Carolina, Oregon, Vermont, and Washington) and the District of Columbia have passed laws that specifically prohibit bullying, harassment, intimidation or discrimination on the basis of gender identity in schools.

We recommend that schools carefully evaluate applicable laws in the school’s jurisdiction.  We also recommend that schools update their policies related to anti-discrimination, anti-bullying and anti-harassment to account for potential gender identity issues.

Please do not hesitate to contact us if you have any questions regarding gender identity issues or the applicable state law that governs your policies and practices related to gender identity.

School Employees As Targets Of Bullying

[July 19, 2012] You may have seen the recent news coverage of the bus monitor who was bullied by students. This incident is a sobering reminder that employees can become victims of bullying by students. As reported by news outlets around the country, the incident involved a 68-year-old school bus monitor and four seventh grade students from upstate New York. The students made inappropriate verbal remarks and touched the school bus monitor during a bus ride. The bullying incident was recorded on a cellular phone and posted on YouTube. The video received tremendous public attention and the four students involved in the incident were suspended from school – for one year.

While student-on-student bullying is frequently discussed, student-on-employee bullying has become an increasingly common problem. Clearly, schools are vulnerable to legal claims resulting from such bullying incidents.

In order to foster a culture in which bullying is not tolerated and bullying incidents are quickly and effectively resolved, we recommend that independent schools take the following measures:

  • Conduct a review of the school’s policies and procedures for preventing and responding to allegations of bullying;
  • Ensure that the school’s policies and practices are in compliance with applicable state and federal laws, as well as recommended best practices;
  • Ensure that the school’s policies and procedures adequately address bullying by and against students, employees, volunteers and all other individuals associated with the school;
  • Evaluate the school’s protocols on the related topics of hazing, intimidation and retaliation; and
  • Educate employees, parents, volunteers and students regarding the school’s policies and procedures pertaining to bullying.

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Please do not hesitate to contact us if you have any questions regarding bullying prevention and response policies, procedures, and training programs. The Firm conducts bullying prevention training programs tailored to the needs of independent schools, colleges and universities.