On April 24, 2014, Governor Deval Patrick signed An Act Relative to Bullying in Schools, which amends the 2010 anti-bullying law.  The Massachusetts House and Senate overwhelmingly supported the legislation, which was authored by the Attorney General’s office and sponsored by Representative Alice Hanlon Peisch (14^th Norfolk) and Senator Sonia Chang-Diaz (2^nd Suffolk).  The amendment changes the bullying law in four principal ways.  (An earlier amendment, effective July 1, 2014, had previously changed the law’s scope by broadening it to include bullying and harassment not only by peers, but also by school staff.)1. Data Collection:

During the nearly four years since the anti-bullying law went into effect, it has been difficult to assess the impact of the law because schools were not required to collect or report data regarding incidents of bullying.  The amended law now requires that each school collect data regarding: (1) the number of reported allegations of bullying or retaliation; (2) the number and nature of substantiated incidents of bullying or retaliation; (3) the number of students disciplined for engaging in bullying or retaliation; and (4) any other information required by the Massachusetts Department of Elementary and Secondary Education (“DESE”).  Each school must report data annually to DESE, which will analyze the data and publish an annual report containing aggregate statewide figures regarding the frequency and nature of bullying in schools.  DESE will file the annual report with the Attorney General and with designated officers and committees of the Legislature.

The addition of data collection and reporting requirements to the anti-bullying law should enable policymakers, school administrators, and parents alike to evaluate the effectiveness of anti-bullying efforts in public schools and to improve bullying prevention plans, responses to bullying, and preventative measures as necessary.

We are concerned about an omission in the amendment’s reporting obligations, however. Although the anti-bullying law specifically requires non-public schools (along with public schools, charter schools, and approved special education schools) to adopt and implement bullying prevention plans, non-public schools are required neither to report data to DESE as discussed above, nor to participate in the student survey protocol discussed below.  We would suggest that data from the non-public school population ought to be gathered, analyzed, and included along with all other data in order to provide a complete look at the problem and to facilitate assessment of strategies for reducing and eliminating bullying among school-age students, no matter where they attend school.

2. Student Surveys:

Per the amended law, DESE will develop an anonymous student survey “to assess school climate and the prevalence, nature and severity of bullying in schools,” which schools will administer for the first time in the 2016 academic year and at least once every four years thereafter.  After receiving the completed surveys, DESE will use the results to “help assess the effectiveness of bullying prevention curricula and instruction” in each school, compare incident data with survey results, identify long-term trends, and monitor prevention efforts over time.

Although data collection on reported and substantiated bullying incidents is a crucial component of the amendment, the surveys should provide an additional source of data to help ascertain whether and to what extent under-reporting is a problem.  We often hear about students who do not want to report bullying, for fear of retaliation or from distrust that school administrators will handle a report effectively.  Over time, it will be interesting to see whether school culture has changed in response to anti-bullying efforts and whether schools are able to adapt their prevention and response patterns to respond effectively.

One concerning aspect of this portion of the amendment is the timing of the surveys.  The law requires that schools administer the surveys at least once every four years. Given the rapidly changing methods by which students engage in cyberbullying, in particular, it would seem prudent to administer the survey more often so that administrators may keep pace with emerging trends.

3. Investigation by DESE:

The amendment also enables DESE to investigate “certain alleged incidents of bullying” and to require a school to take action as a result of such an investigation.  The amendment does not make clear what types of incidents will be investigated, who can invoke DESE review, or what DESE may require of a school if deficiencies become evident after investigation. However, the existence of this provision should at least encourage schools to ensure that their bullying investigations and responses are thorough enough to avoid DESE corrective action.

4. Special Populations:

Finally, the amended law highlights the increased bullying risk that students with certain characteristics face each day and requires each school’s plan to include specific measures to support such vulnerable students. The law states:

Each plan shall recognize that certain students may be more vulnerable to becoming a target of bullying or harassment based on actual or perceived differentiating characteristics, including race, color, religion, ancestry, national origin, sex, socioeconomic status, homelessness, academic status, gender identity or expression, physical appearance, pregnant or parenting status, sexual orientation, mental, physical, developmental or sensory disability or by association with a person who has or is perceived to have 1 or more of these characteristics. The plan shall include the specific steps that each school district, charter school, non-public school, approved private day or residential school and collaborative school shall take to support vulnerable students and to provide all students with the skills, knowledge and strategies needed to prevent or respond to bullying or harassment.

This is an important addition to the law, as it acknowledges the fact that bullying is more prevalent and more insidious against students who appear “different” in any way, and it requires schools to take affirmative steps to support vulnerable students even before bullying occurs.  For more information on bullying and students with disabilities, please take a look at the U.S. Department of Education’s August 2013 Dear Colleague Letter, which we discussed in a previous blog post.

It is encouraging that the Legislature has revisited the anti-bullying law to clarify its scope, to establish protocols for reporting and accountability, and to involve DESE more directly in the task of overseeing the law’s effective implementation in the schools. The amended law includes several improvements that will, we hope, increase the law’s effectiveness by helping schools to prevent and respond to bullying and by allowing DESE to investigate individual cases and keep track of general trends.

Melanie R. Jarboe is an associate in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.