The schoolyard lawyer

Issue August 2011 By Katherine Meinelt

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)