It has been just over a year since Gov. Deval Patrick enacted
the state law on bullying, making Massachusetts the 42nd state to
pass such a law.1 The law quickly became known as one of
the strictest anti-bullying laws in the country, and the 2010-11
school year was the first test run for school districts, charter
schools, non-public schools, approved private day or residential
schools and collaborative schools across the state.
Looking back over the past year, it is appropriate timing to
reflect on the various legal implications that the law has created
for all those involved -- schools, students and their respective
parents.
Brief 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; (4) infringes on the rights of the victim at
school; or (5) materially and substantially disrupts the education
process or the orderly operation of a school."2
In addition, bullying includes cyberbullying, which is defined as
"bullying through the use of technology or any electronic
communication."3 The law sets forth many different means
of cyberbullying, but the most common uses for students are text
messages, e-mails, phone calls or social media websites such as
Facebook or MySpace. The main difference between bullying and
cyberbullying is that bullying requires that the prohibited
behavior be repeated, whereas cyberbullying only requires a single
instance.4
The law rightfully offers additional protections for students with
disabilities because they are more susceptible to being "targets"
of bullying.5 The law has two requirements for students
with disabilities, both of which must occur simultaneously: (1)
there must be a school-wide response to prevent student bullying of
students with disabilities; and (2) the disabled student's
Individualized Education Program (IEP) must "address the skills and
proficiencies needed to avoid and respond to bullying, harassment
or teasing."6
For students with disabilities, reasonable fear of harm is
individually determined for each student regardless of their
disability.7 Therefore, the law protects students whose
disability causes them to be in fear even if other students would
perceive the act or behavior in a different way.
The law places great emphasis on the schools' role in responding
to bullying. Initially, it required all school districts to
formulate and implement a bullying prevention and intervention plan
in their schools by Dec. 31, 2010.8 Shortly after the
law was passed, the Department of Elementary and Secondary
Education provided a model plan for all districts statewide to use
as a guideline and resource when creating their own
plans.9 School districts, with input from teachers,
school staff, students, parents, law enforcement and community
representatives, were then expected to implement a plan for each
school.10
Under the law, school districts are accountable for the
implementation and enforcement of their plan.11
Consequently, districts are held to a higher standard and are
required to report to the Department of Elementary and Secondary
Education. The main responsibilities for the schools are the
reporting procedures and the investigation procedures, which place
greater liability on employees to promptly recognize and identify a
problem. Because all employees must report suspicions of bullying,
similar to instances of suspected abuse and neglect, neither the
employee nor school system has any discretion but must report all
suspected incidents of bullying.12
Potential legal issues
Although the purpose of the law is to prevent bullying in
schools, it 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.
The victim
There are several issues that arise for victims of bullying.
First and foremost, the law is meant to protect victims of
bullying, and every school has policies and procedures in place
that they must follow. However, the law does not create a private
right of action for victims and their families.13
Therefore, even though the law requires schools to establish and
follow their district's plan, victims may not use this as a cause
of action against schools which fail to do so. There may be other
legal claims available, however, such as failure to exercise
reasonable care, negligence, intentional or negligent infliction of
emotional distress, negligent hiring or supervision, breach of
contract and various criminal charges.
Another issue is the limitations on the school's obligation to
become involved. Currently, the scope of a school'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.14 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."15
This means schools are not required to intervene and protect the
victim in certain situations. These limitations are potentially
problematic because bullying can take place anywhere, potentially
leaving 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 school
staff to ascertain or suspect that an incident of bullying has
occurred and consequently intervene. It seems that this would leave
many victims unprotected, which is exactly what the law is trying
to prevent.
The 'bully'
One concern for the accused aggressor is the vagueness and lack
of uniformity when discussing the disciplinary measures. Given that
the law does not set forth strict guidelines that schools must
follow and yet seems to leave discipline in the hands of
schools,16 it is likely 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, this lack of uniformity risks precluding
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 might have been
appropriate for the state to have mandated disciplinary actions for
various levels of offenses so schools are not left to determine
appropriate measures on an individual, subjective basis.
In addition, the law was enacted intending to set guidelines for
schools to follow to ensure that all students are protected from
bullying. With this, the burden is placed on schools to act quickly
in investigating the incident and punishing the aggressor. However,
one of the recurring issues our office has seen over the past year
has been the fact that the word "bully" was overused by school
staff, students and parents.
In some instances, any action at all was considered bullying and
the student was automatically labeled as a bully. Schools now are
required to have procedures they must follow, and if done
correctly, protect the victim, punish the aggressor and ultimately
put a stop to the behavior. However, as this past year has shown,
that does not always happen. It is important to remember that the
law works both ways, and students unfairly labeled as the bully
have rights as well.
Final thoughts
We are fortunate to live and work in a state that is dedicated
to putting an end to bullying in our schools. Although this law
creates various potential legal issues for all those involved, it
brings us closer to creating a safe environment for
every child in every school district across the state.
Katie A. Meinelt, Esq., is an attorney with the law firm
of Kerstein, Coren & Lichtenstein LLP in Wellesley. She is a
member of the Young Lawyers Division's Board of Directors and is
active in anti-bullying issues. She is a former teacher and
practices special education and education law.
1G.L. ch. 71, §37O
2G.L. ch. 71, §37O(a)
3G.L. ch. 71, §37O(a)
4G.L. ch. 71, §37O(a)
5G.L. ch. 71B, §3
6G.L. ch. 71B, §3
7G.L. ch. 71B, §3
8G.L. ch. 71, §37O(d)
9G.L. ch. 71, §37O(j)
10G.L. ch. 71, §37O(j)
11G.L. ch. 71, §37O(d)
12G.L. ch. 71, §37O(g)
13G.L. ch. 71, §37O(i)
14G.L. ch. 71, §37O(b)
15G.L. ch. 71, §37O(a)
16G.L. ch. 71, §37O(d)(v)