Enacts the "dignity for all students act" to prevent harassment and discrimination

Summary of specific provisions

Section one of the bill establishes its short title, the Dignity for all Students Act. Section 2 of the bill amends the Education Law by adding a new article 2 entitled "Dignity for all Students." New article 2 sets forth the legislative intent in section 10, and sets forth definitions in section 11. The definition of 'harassment" in section 11(7) was carefully drafted to ensure that this legislation protects children against harassment in a manner that is consistent with the First Amendment protections of speech and expression. See Tinker v. Des Moines School District, 393 U,S. 503 (1969) and its progeny. In addition, by moving the list of protected classes to the end of the definition, and by adding the phrase "not limited to" at the beginning of the list, the amendment made in the B-print explicitly establishes, in the bill text itself, that the list is non-exclusive and that the definition is content neutral.

Harassment is defined as "creation of a hostile environment by conduct or by verbal threats, intimidation or abuse that has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being:" Education Law §11(7), as proposed in this bill. The definition includes an objective reasonableness standard and, consistent with Tinker and the cases decided after Tinker, it also provides that speech (e.g., the verbal threats included in the defi- nition) becomes harassment only when it does, or foreseeably would, substantially interfere with a students education. it is also the legis- lative intent that, consistent with the hostile environment case law developed in the employment context, conduct or verbal behavior must be severe or pervasive in order to substantially interfere with educational performance, opportunities, etc. and to therefore be harassment under this definition. This content-neutral definition is followed by a non- exclusive list of protected classes whose members are often the targets of the type of harassment the bill seeks to prevent. The purpose of listing these protected classes is to provide examples of the types of status-based harassment frequently encountered by students without in any way limiting the application of the definition-to individuals in those classes.

Section 12 prohibits harassment, as defined in section 11(7) and discussed above, and it also prohibits discrimination on the basis of actual or perceived race, color, weight, national origin, ethnic group,

religion, religious practice, disability, sexual orientation, gender, or sex in any activity occurring on school grounds or at a school function. New section 12 includes language intended to make clear that the Dignity for All Students Act does not contravene or override existing provisions of law, including but not limited to the Education Commissioner's regu- lations, regarding single gender schools and athletic teams.

Sections 13 and 14 of new article 2 respectively provide for the poli- cies and guidelines to be established by school districts, and the State Education Commissioners responsibilities. This part of the bill requires school districts to develop procedures which create a school environment free of discrimination and harassment and to establish guidelines for training school personnel. School districts must also establish guide- lines for developing nondiscriminatory instructional and counseling methods and ensuring that staff will be available at every school who have been trained to handle human relations in the areas in which discrimination is prohibited. The Commissioner of Education is to provide advice, which may include model policies, and direct services, to the extent possible, to help districts prevent discrimination and harassment. The commissioner will also provide grants, from funds appro- priated for such purpose, to local school districts to assist them in implementing the guidelines provided for by the bill.

Section 15 of new Education Law article 2 requires the commissioner to create a procedure whereby material incidents of discrimination and harassment on school grounds or at school functions are reported to the State Education Department at least annually. The commissioner may use the existing UVIR (uniform violent incident reporting) system for this purpose; however, it is the legislative intent that the UVIR system will be adapted to include information about the specific nature of the inci- dent, i.e., the type or types of bias involved in a reported incident of harassment or discrimination, including the possibility that multiple types of bias could be involved in a single incident, and all of the types of bias involved should be reported.

Section 16 of new Education Law article 2 provides protection for people who report incidents of discrimination or harassment. Section 17 provides for applicability of the new article with respect to certain institutions and other laws, and section 18 provides for severability and construction.

Section 3 of the bill amends section 801-a of the education law by requiring sensitivity to the harassment or discrimination prohibited by section 2 of this bill to be incorporated into the civility and charac- ter training currently required by section 801-a of the education law.

Section 4 of the bill amends section 2801 of the education law by adding a new paragraph n. Section 5 of the bill now provides that the bill will take effect on July 1, 2012. This change in the effective date is the only change made in the C-print of the bill.

The A-print added weight to the non-exclusive list of protected classes, whose members are often the targets of the type of harassment the bill seeks to prevent, that is contained in the harassment definition, and also added weight to the same list that appears in other places in the bill. As noted in the Justification section below, the GLSEN study shows that looks/body size was the most frequently reported basis for harass- ment of students in New York schools. There were no other changes in the A-print

The B-print revised the harassment definition by moving the non-exclu- sive list of protected classes from the middle of the definition to the end of the definition, and by adding the phrase "not limited to" at the beginning of the list. This change clarifies the consistently expressed legislative intent that the list is non-exclusive and that the defi- nition is content neutral. The B-print also made a conforming change in proposed new Education Law §10, by removing the list of protected class- es and simply stating the broad legislative intent to provide a school environment free of discrimination and harassment. There were no other changes in the B-print.

The C-print changes the effective date to July 1, 2012 to ensure that there is adequate time for both SEA and school districts to develop thoughtful and well-designed implementation plans. This time frame also will permit proposed budgets at the state and local levels to include consideration of the implementation plans before the law takes effect. There are no other changes in the C-print.

Justification

In deciding First Amendment cases in school settings, courts have recognized "the special need to maintain a safe, secure and effective learning environment," Harper v. Poway Unified School, 445 F.3d 1166 at 1176 (9th Cir. 2006), citing Tinker v. Des Moines School District, 393 U.S. 503 (1969). Students need such a safe, welcoming and supportive school environment so that they can concentrate on their academic and personal growth, and they should never have to be preoccu- pied by the threat or actual occurrence of harassment or discrimination at school. The Dignity for All Students Act promotes civility among students and between students and teachers. It will also help create an atmosphere where learning is paramount and distractions to learning are minimized:

Moreover, the Act provides a response to the large numbers of harassed and stigmatized students skipping school and engaging in high risk behaviors like drug use, alcohol abuse, and perhaps even suicide. No child or teen should ever be pushed to such extremes because of an intolerable environment in his or her school. Scholarly literature and common sense establish that harassment and intimidation interfere with students' ability to learn. By prohibiting harassment in public schools and establishing the basis for proactive measures such as training and model policies, the "Dignity for All Students Act" takes a major step in creating more nurturing environments in all our schools.

A 2008 review of existing literature, that also analyzed 1993-94 data from a large urban school district, noted that bullying victimization is estimated to affect 15-20% of the U.S. student population. The authors defined bullying to include threats, intimidation and other conduct, and concluded it was the most common form of "low level" school violence. Meyer-Adams, N. & Conner, B.T., "School violence: Bullying behavior and the Psychosocial School Environment in Middle Schools," Children & Schools, Vol. 30, No. 4 (October 2008), The negative effects of bullying include increased truancy and dropout rates as well as negative psycho- social effects such as depression, etc. Id. at p. 212, Verbal teasing and intimidation are the most common form of bullying. Dupper, D.R. & Meyer-Adams, N., "Low-level violence: A neglected aspect of school culture," Urban Education, Vol. 37, No. 3 at p. 351 (2002). A 1992 study found that 88% of secondary school students reported having observed bullying and 76.8% stated they had been victims. id. In addition to the negative effects discussed above, bullying victims' grades may suffer and even "good kids" may be pushed into starting fights. Id. at 352. There is also harm to those who witness peer harassment. id.

The continuing need for this legislation is apparent from recent data demonstrating the prevalence of bias-based harassment in New York schools. A survey commissioned by the Gay, Lesbian and Straight Educa- tion Network (GLSEN) found that more than one-third (39%) of New York students reported that bullying, name-calling, and harassment is a seri- ous problem in school. Students were asked about the frequency of witnessing other students bullied, called names, or harassed in school. From Teasing to Torment: A Report on School Climate in New York (GLSEN 2005), at p. B. The most commonly reported harassment was based on phys- ical appearance. Sixty-six percent (66%) of students reported that people at school were harassed at least sometimes because of their looks or body size, with 38% reporting that this happened often or very often. id. This bill therefore now includes weight as one of the examples contained in the non-exclusive list at the end of the harassment defi- nition. Bullying and harassment based on how people expressed their gender, or because of their actual or perceived sexual orientation was also very common. Fifty seven percent of respondents reported that students were bullied or harassed at least sometimes because of the way they expressed their gender, and about a quarter (23%) said these behav- iors occurred often or very often. Id. More than five out of ten (52%) reported that students were harassed because they were or were perceived to be lesbian, gay, or bisexual, id., even as only 5% identified as being so. Id. at 2. About a quarter (24%) said these behaviors occurred often or very often. Id. at 8.

Prior legislative history

A.3496-A/S.1571 (passed Assembly 2007 and 2008); A.949115.1454 (passed Assembly 2006); A.4963/S.1454 (passed Assembly 2005); A,1118/S.1925 (2003-04) passed Assembly 2003 and 2004; A.2634-A /8.1628-A (2001-02) passed Assembly 2002; A.9244- A/S.5775-A (2000).

Fiscal implications

Minimal.

Effective date

This act shall take effect on July 1, 2012.