Analysis and text of Bill S2323 -- "anti-bullying" bill passed by Mass. Senate on Thursday, March 11

S2323 - An Act Relative Bullying in Schools

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1.Section 1D of chapter 69 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out, in lines 30 to 32, inclusive, the following words “The standards may provide for instruction in the issues of nutrition, physical education, AIDS education, violence prevention, and drug, alcohol and tobacco abuse prevention.” and inserting in place thereof the following words:-  “The standards may provide for instruction in the issues of nutrition, physical education, AIDS education, violence prevention, including teen dating violence, bullying prevention, conflict resolution, and drug, alcohol and tobacco abuse prevention.”

SECTION 2. Section 37H of chapter 71 of the General Laws, as so appearing, is hereby amended by inserting after the word “department” in line 9 the following sentence:-  “The policies shall also prohibit bullying as defined in section 37O and shall include the bullying prevention and intervention plan required by section 37O.”

SECTION 3. Said section 37H of said chapter 71, as so appearing, is further amended by inserting after the word “students” in line 26 the following sentence:- “The student handbook shall include an age-appropriate summary of the student-related sections of the bullying prevention and intervention plan required by section 37O.” 

SECTION 4. Said chapter 71 is hereby amended by inserting after section 37N the following section:-

Section 37O.  (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

 “Bullying” means the severe or repeated use by one or more students of a written, verbal, or electronic expression, or a physical act or gesture, or any combination thereof, directed at another student that has the effect of: (i) causing physical or emotional harm to the other student or damage to the other student’s property; (ii) placing the other student in reasonable fear of harm to himself or of damage to his property; (iii) creating a hostile environment at school for the other student; (iv) infringing on the rights of the other student at school; or (v) materially and substantially disrupting the education process or the orderly operation of a school.

“Cyber-bullying” means bullying through the use of technology or any electronic means. The use of bullying in this section shall include cyber-bullying.

“Hostile environment” means a situation in which bullying causes the school environment to permeate with intimidation, ridicule or insult that is sufficiently severe or pervasive to alter the conditions of the student’s education and create an abusive school environment.

“Perpetrator” means the student who engages in bullying or retaliation.

“School grounds” means property on which a school building or facility is located or property that is owned, leased or used by a school district, commonwealth charter school or non-public school for any school-sponsored activities, functions, programs, instruction or training. 

“Victim” means the student against whom bullying or retaliation has been perpetrated.

(b) Bullying is prohibited on school grounds, property immediately adjacent to school grounds, at school-sponsored or school-related activities, functions or programs whether on or off school grounds, at school bus stops, on school buses or other vehicles owned, leased or used by a district or school, or through the use of technology or an electronic device owned, leased or used by a school district, commonwealth charter school, or non-public school.

Bullying is also prohibited both (i) at a location, activity, function or program that is not school-related and (ii) through the use of technology or an electronic device that is not owned, leased or used by a district or school if the act or acts in question create a hostile environment at school for the victim, infringe on the rights of the victim at school, or materially and substantially disrupt the education process or the orderly operation of a school. 

Retaliation against a person who reports bullying, who provides information during an investigation of bullying, or who is a witness to or has reliable information about bullying is prohibited.

(c) Each school district, commonwealth charter school and non-public school shall provide age- appropriate instruction on bullying prevention in each grade that is incorporated into the curriculum of the district or school. The curriculum shall be evidence-based.

(d) Each school district, commonwealth charter school and non-public school shall develop and update a bullying prevention and intervention plan in consultation with teachers, school staff, professional support personnel, school volunteers, administrators,  community representatives, local law enforcement agencies, students, parents and guardians.  The consultation shall at a minimum include a public comment period.  The bullying prevention and intervention plan shall be updated at least biennially. 

Each bullying prevention and intervention plan at a minimum shall: (i) include descriptions of and statements prohibiting bullying, cyber-bullying and retaliation; (ii) establish clear procedures for students, staff, parents, guardians, and others to report bullying or retaliation; (iii) include a provision that reports of bullying or retaliation may be made anonymously; provided, however, that no disciplinary action shall be taken against a student solely on the basis of an anonymous report; (iv) establish clear procedures for promptly responding to and investigating reports of bullying or retaliation; (v) identify the range of disciplinary actions that may be taken against a perpetrator for bullying or retaliation; (vi) establish clear procedures for restoring a sense of safety for a victim and assessing that student’s needs for protection; (vii) establish strategies for protecting from bullying or retaliation a person who reports bullying, provides information during an investigation of bullying, or is witness to or has reliable information about an act of bullying; (viii) establish procedures consistent with state and federal law for promptly notifying the parents or guardians of a victim and a perpetrator; provided, however, that the parents or guardians of a victim shall also be notified of the action taken to prevent any further acts of bullying; and provided further that said procedures must provide for immediate notification to the local law enforcement agency where criminal charges may be pursued against the perpetrator; (ix) include a provision that a student who knowingly makes a false accusation of bullying shall be subject to disciplinary action; and (x) include a strategy for providing counseling or referral to appropriate services for perpetrators and victims and for appropriate family members of said students.

A school district, commonwealth charter school or a non-public school may establish separate discrimination or harassment policies that include categories of students, and nothing in this section shall prevent a school district, commonwealth charter school or non-public school from remediating any discrimination or harassment based on a person’s membership in a legally protected category under local, state or federal law. 

The bullying prevention and intervention plan may include ongoing professional development to build the skills of all members of school staff, including but not limited to educators, administrators, school nurses, cafeteria workers, custodians, and paraprofessionals, to prevent, identify and respond to bullying.  The content of such professional development shall include, but not be limited to: (i) developmentally appropriate strategies to prevent bullying incidents; (ii) developmentally appropriate strategies for immediate, effective interventions to stop bullying incidents;(iii) information regarding the complex interaction and power differential that can take place between and among the perpetrator, the victim, and any witnesses to the bullying; (iv) research findings on bullying, including information about specific categories of students who have been shown to be particularly at risk for bullying in the school environment; (v) information on the incidence and nature of cyber-bullying; and (vi) internet safety issues as they relate to cyber-bullying.

The bullying prevention and intervention plan shall include provisions for educating parents and guardians about the bullying prevention curriculum of the district or school; how parents and guardians can reinforce the curriculum at home and support the district or school prevention and intervention plan; the dynamics of bullying; and online safety and cyber-bullying.

(e)(1) Each school district, commonwealth charter school and non-public school shall provide to students and their parents or guardians, in age-appropriate terms and in the languages which are most predominant among the students, parents and guardians, annual written notice of the relevant sections of the bullying prevention and intervention plan.

(2) Each school district, commonwealth charter school and non-public school shall provide to all school staff annual written notice of the bullying prevention and intervention plan.   The faculty and staff at each school shall be trained annually on the bullying prevention and intervention plan applicable to the school. Relevant sections of the bullying prevention and intervention plan shall be included in a district or school employee handbook. 

(3) The bullying prevention and intervention plan shall be posted on the website of each school district, commonwealth charter school and non-public school.

(f) Each school principal or the person who holds a comparable role shall be responsible for the implementation and oversight of the bullying prevention and intervention plan at his school. 

(g) A member of a school staff, including but not limited to an educator, administrator, school nurse, cafeteria worker, custodian, and paraprofessional, shall immediately report any instance of bullying or retaliation the staff member has witnessed or become aware of to the school principal or to the school official identified in the bullying prevention and intervention plan as responsible for receiving such reports or both.  Upon receipt of such a report, the school principal or a designee shall promptly investigate.  If the school principal or a designee determines that bullying or retaliation has occurred, the school principal or designee shall (i) notify the local law enforcement agency if the school principal or designee believes that criminal charges may be pursued against the perpetrator; (ii) take appropriate disciplinary action; (iii) notify the parents or guardians of the perpetrator; and (iv) notify the parents or guardians of the victim, and to the extent consistent with state and federal law, notify them of the action taken to prevent any further acts of bullying or retaliation.

(h) If an incident of bullying or retaliation involves students from more than one school district, commonwealth charter school or non-public school, the district or school first informed of the bullying or retaliation shall promptly notify the appropriate administrator of other district or school so that both may take appropriate action; provided however that the notification shall be in compliance with 20 U.S.C. section 1232g.

(i) Nothing in this section shall be construed to abridge the rights of students that are protected by the First Amendment to the Constitution of the United States or by Article XVI, as amended, of the Constitution of the commonwealth.

(j) Nothing in this section shall supersede or replace existing rights or remedies under any other general or special law, nor shall this section create a private right of action.

(k) The department of elementary and secondary education, after consultation with the department of public health, the department of mental health, the attorney general and experts on bullying, shall (i) publish a model bullying prevention and intervention plan for school districts, commonwealth charter schools, and non-public schools to consider when creating their own plans and (ii) compile a list of bullying prevention and intervention resources, evidence-based curricula, best practices and academic-based research that shall be made available for use by schools. These resources may include, but shall not be limited to, print, audio, video or digital media; subscription-based online services; and on-site or technology-enabled professional development and training sessions. The department of elementary and secondary education shall biennially update the model bullying prevention and intervention plan and the list of these resources, curricula, best practices and research and shall ensure that they are posted on its website.

Section 4a: Section 3 of chapter 71B in the 2008 official edition is hereby amended by adding after the word “psychiatrist.” in line 131, the following sentence: - “Whenever the evaluation indicates that a child requires an Individualized Education Program, this program may address the skills and proficiencies to avoid and respond to bullying, harassment or teasing.”

SECTION 5.  Section 3 of said chapter 71B, as appearing in the 2008 Official Edition, is hereby amended by adding in line 154 after the word “proficiencies;” the following words:  “the skills and proficiencies needed to avoid and respond to bullying, harassment or teasing;”.

SECTION 5A. Section 43 of chapter 265 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out subsection (a) and inserting in place thereof the following subsection:-

(a) Whoever (1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking and shall be punished by imprisonment in the state prison for not more than 5 years or by a fine of not more than $1,000, or imprisonment in the house of correction for not more than 2 and one-half years or both. Such conduct, acts or threats described in this subsection shall include, but not be limited to, conduct, acts or threats conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers 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.

SECTION 5B. Section 43A of said chapter 265, as so appearing, is hereby amended by striking out paragraph (a) and inserting in place thereof the following paragraph:-

(a) Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment and shall be punished by imprisonment in a house of correction for not more than 2 and one-half years or by a fine of not more than $1,000, or by both such fine and imprisonment. Such conduct or acts described in this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers 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.

SECTION 5C. Chapter 269 of the General Laws is hereby amended by striking out section 14A and inserting in place thereof the following section:-

Section 14A. Whoever telephones another person or contacts another person by electronic communication, or causes a person to be telephoned or contacted by electronic communication, repeatedly, for the sole purpose of harassing, annoying or molesting the person or the person’s family, whether or not conversation ensues, or whoever telephones or contacts a person repeatedly by electronic communication and uses indecent or obscene language to the person, shall be punished by a fine of not more than $500 or by imprisonment for not more than 3 months, or both.

SECTION 6.  School districts, commonwealth charter schools, and non-public schools shall have a bullying prevention and intervention plan in compliance with this act and incorporate the plan into the district code of conduct required by section 37H of chapter 71 of the General Laws and shall file the plan with the department of elementary and secondary education not later than December 31, 2010.

SECTION 7.  The department of elementary and secondary education shall publish guidelines for the implementation of social and emotional learning curricula in kindergarten through grade 12 not later than June 30, 2011.  For purposes of this section, social and emotional learning shall mean the processes through which children acquire the knowledge, attitudes, and skills they need to recognize and manage their emotions, demonstrate caring and concern for others, establish positive relationships, make responsible decisions, and handle challenging social situations constructively. 

SECTION 8. The department of elementary and secondary education shall periodically review school district programs, activities, and services to determine whether the school boards are in compliance with this act.

Section 9. There shall be a special commission for the purpose of making an investigation and study relative to bullying and cyber-bullying.   The commission shall consist of 7 members:  1 of whom shall be the attorney general, or a designee, who shall chair the commission; 1 of whom shall be a representative of the Massachusetts District Attorneys Association; 1 of whom shall be a representative of the Massachusetts Chiefs of Police Association; 1 of whom shall be a representative of the Massachusetts Sheriffs’ Association; 1 of whom shall be a representative of the Massachusetts Association of School Committees; 1 of whom shall be a representative of the Massachusetts Association of School Superintendents; and 1 of whom shall be a representative of the Massachusetts Association of Secondary School Administrators.   The commission shall review criminal laws to determine if they need to be amended in order to address bullying and cyber-bullying; provided further that the commission shall also investigate parental responsibility and liability for bullying and cyber-bullying.  The commission shall also investigate and study the efficacy of including in the general laws specific categories or methods of bullying, specific classes of individuals for whom anti-bullying polices should be in place, as well as the efficacy of putting in place a mandated report system for bullying similar to the system currently established in section 51A of chapter 119 of the General Laws. The commission shall report to the general court the results of its investigation and study and its recommendations, if any, together with drafts of legislation necessary to carry out such recommendations, by filing the same with the clerks of the senate and the house of representatives who shall forward the same to the chairs of the joint committee on education, the chairs of the joint committee on the judiciary, the chairs of the joint committee on public safety and homeland security, the chairs of the joint committee on children and families and the chairs of the house and senate committees on ways and means not later than January 1, 2011.