New Laws in Massachusetts to Protect Students from Bullying, Harassment and Other Harm: What Schools Must Do Now to Comply

Two well-publicized student suicides in Massachusetts have turned the spotlight on the devastating effects of bullying on school children. On April 6, 2009, an 11-year-old boy, Carl Joseph Walker-Hoover, hanged himself after being bullied relentlessly at school and being called gay. Fifteen-year-old Phoebe Prince hanged herself on January 14, 2010, after being bullied, both at school and online, in part due to a relationship she had with a popular boy. In both cases, the schools allegedly were aware of the bullying but did not do enough to stop it.

In response, the Massachusetts legislature approved a strong anti-bullying bill that impacts both public and private elementary and secondary schools. The bill, signed into law by Governor Deval Patrick on May 3, 2010, adds to other Massachusetts laws that support and protect children from harassment and other harm. The anti-bullying law – which may be the strictest in the country – expands the definition of bullying, imposes immediate reporting and response requirements, and mandates written bullying prevention plans in all schools by the end of the year. Other states might follow Massachusetts’ lead, making this legislation noteworthy for educational institutions around the country.

Note that this alert describes the requirements placed on all Massachusetts schools, including “non-public” schools. The law places additional requirements, which are not discussed here, on school districts, charter schools, certain private schools with agreements to accept children requiring special education, and collaborative schools.

The Anti-Bullying Law

Massachusetts’ new anti-bullying law broadly defines bullying as “the 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 a victim that: (i) causes physical or emotional harm to the victim or damage to the victim’s property; (ii) places the victim in reasonable fear of harm to himself or of damage to his property; (iii) 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.” The definition specifically includes “cyber-bullying.”

Bullying Prohibited Beyond School Grounds and Online

The new law gives schools sweeping authority over student conduct. As of May 3, 2010, bullying is prohibited on school grounds or property immediately adjacent to school grounds, at school-sponsored or school-related activities, or through the use of technology or an electronic device owned, leased or used by the school. Even bullying conducted off school property or with technology not owned or leased by the school is prohibited 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 the school. By including conduct that occurs electronically and outside of school, the new law recognizes that bullying can be just as harmful when it occurs via email, on Facebook or through Twitter.

The anti-bullying law also prohibits retaliating against any person who reports bullying, provides information during an investigation of bullying, or witnesses or has reliable information about bullying.

What Schools Must Do Now To Comply

1. Begin Drafting a School Bullying Prevention Plan

Public and private schools must fulfill stringent new planning, training, notice, reporting and investigation obligations. The cornerstone is a written plan to address bullying prevention and intervention. The deadline for having a bullying-prevention plan is December 31, 2010, but schools should act now, especially given that plans must be developed in consultation with many stakeholders, including teachers, school staff, professional support personnel, school volunteers, administrators, community representatives, local law enforcement agencies, students, parents and guardians. Plans must be updated biennially and must at least include the following:

• descriptions of and statements prohibiting bullying, cyber-bullying and retaliation
• clear procedures for reporting bullying or retaliation
• a provision allowing for the reporting of bullying or retaliation to be made anonymously
• clear procedures for promptly responding to and investigating reports of bullying or retaliation
• details regarding the range of disciplinary actions that can be taken for bullying or retaliation
• clear procedures for restoring a sense of safety for a victim and assessing the victim’s need for protection
• strategies for protecting from bullying or retaliation those who report bullying or assist during an investigation
• procedures consistent with state and federal law for promptly notifying the parents of a victim and perpetrator – procedures that must provide that, to the extent consistent with state and federal law, the victim’s parents be notified of the action taken to prevent any further acts of bullying or retaliation, and must provide for the immediate notification of the local law enforcement agency when criminal charges may be pursued
• a provision that a student who knowingly makes a false bullying or retaliation accusation will be subject to disciplinary action
• a strategy for providing counseling or referral to appropriate services

Each school principal or person who holds a comparable position will be responsible for the implementation and oversight of the plan.

2. Immediately Report Incidents of Bullying or Retaliation

As of May 3, 2010, school staff members must report immediately any instance of bullying or retaliation that they learn of or witness. Reports should be delivered to the principal or the responsible school official identified in the anti-bullying plan.

3. Promptly Notify Other Schools When Necessary

If a bullying or retaliation incident involves students from more than one school, the school first informed of the incident must, consistent with state and federal law, promptly notify the appropriate administrator of the other school. If a bullying or retaliation incident occurs on school grounds and involves a former student under the age of 21 who is no longer enrolled at the school, then the school informed of the bullying or retaliation must contact law enforcement when criminal charges may be pursued.

4. Promptly Investigate Reports of Bullying or Retaliation

As of May 3, 2010, upon receipt of a bullying or retaliation report, the principal or designee must promptly conduct an investigation. If the principal or designee determines that bullying or retaliation has occurred, he/she must: (1) notify the local law enforcement agency if he/she believes that criminal charges may be pursued; (2) take appropriate disciplinary action; (3) notify the parents of the perpetrator; and (4) notify the parents 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.

5. Provide Annual Notices and Schedule Training

Each school must provide annual written notice to students and parents of the relevant student-related sections of the bullying-prevention plan and must post the plan on its website. Relevant sections of the plan relating to the duties of faculty and staff must be included in the school’s employee handbook. In addition, schools must provide annual written notice of the plan to all school staff and conduct annual training for faculty and staff.

Other Massachusetts Laws to Protect Students

In addition to the anti-bullying law, Massachusetts has enacted other laws to protect students from harassment or other harm.

Reckless Endangerment of Children

In 2002, before the focus on bullying, Massachusetts criminalized the reckless endangerment of children under age 18. Specifically, Massachusetts General Laws Chapter 265, Section 13L punishes whoever “wantonly or recklessly engages in conduct that creates a substantial risk of serious bodily injury or sexual abuse to a child or wantonly or recklessly fails to take reasonable steps to alleviate such risk where there is a duty to act.” Acts or omissions are “wanton” or “reckless” if the person “is aware of and consciously disregards a substantial and unjustifiable risk that his acts, or omissions where there is a duty to act, would result in serious bodily injury or sexual abuse to a child.” Consequently, school officials must take action, or face criminal charges, if they are aware that a child is facing a substantial risk of sexual abuse or other serious bodily injury. Such circumstances might occur, for example, if a school permits a student to ride on a bus with an intoxicated driver, puts a child in contact with a known sex offender, or fails to stop bullying that involves physical harm.

Harassment Prevention

On May 10, 2010, the Massachusetts harassment prevention law went into effect. Unlike the anti-bullying law, this law (Chapter 258E) does not place specific requirements on schools or school personnel, but makes it easier for victims of harassment to obtain restraining orders against minors or adults.

The law defines harassment as: (i) three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that: (a) by force, threat or duress causes another to involuntarily engage in sexual relations; or (b) conduct that constitutes one of the following crimes: indecent assault and battery on child under age 14; indecent assault and battery on mentally retarded person; indecent assault and battery on person fourteen or older; rape; rape of a child; rape and abuse of a child; assault with intent to commit rape; assault of child with intent to commit rape; enticement of child under age 16; stalking; criminal harassment; and drugging persons for sexual intercourse.

A person suffering from harassment may file a complaint in the appropriate court (i.e., district or Boston municipal court, the superior court or the juvenile court departments of the trial court) and petition the court for an order that the harasser: (1) refrain from abusing or harassing the plaintiff; (2) refrain from contacting the plaintiff, unless authorized by the court; (3) remain away from the plaintiff’s household or workplace; and, for adults, (4) pay the plaintiff monetary compensation for losses suffered due to the harassment. Chapter 258E allows individuals to obtain restraining orders against non-family and non-household members without paying any filing fees.

Impact on Educational Institutions

The anti-bullying law, in conjunction with the reckless endangerment law and the harassment prevention law, dramatically increases the protections available to stop bullying, harassment and other actions causing harm to students.

In compliance with these laws, effective immediately, schools must do all of the following:

• ensure that school personnel report any bullying incidents
• ensure that bullying incidents are promptly investigated by the principal or other designated individual
• take appropriate disciplinary action
• notify parents and local law enforcement agencies, when appropriate
• ensure that all staff members are aware of their responsibility to take reasonable steps to alleviate the risk of bodily injury and abuse to students

Again, schools that do not already have anti-bullying plans that meet the requirements of the anti-bullying law must develop such plans by the end of 2010. In addition, schools should publicize that students who report harassment can seek restraining orders in court, even against other students.

Although Massachusetts is the first state to pass such a sweeping anti-bullying law, other states are likely to take notice and might consider similar legislation.