Enacts the "Dignity For All Students Act"; authorizes the commissioner of education to establish policies and procedures affording all students in public schools an environment free of harassment and discrimination; requires reporting harassment and discrimination to such commission; makes exemptions.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3661C
SPONSOR: O'Donnell (MS) TITLE OF BILL: An act to amend the education law, in relation to
enacting the dignity for all students act
PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to
afford all students an environment free of any harassment that substan-
tially interferes with their education, regardless of the basis of the
harassment, and free of discrimination based on actual or perceived
race, color, weight, national origin, ethnic group, religion, disabili-
ty, sexual orientation, gender, or sex.
SUMMARY OF SPECIFIC PROVISIONS: Section 1 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 student's education. it is also the
legislative 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 educa-
tional 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
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 Commissioner's 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 guidelines 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 bully-
ing include increased truancy and dropout rates as well as negative
psychosocial effects such as depression, etc.
ID.ct. 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.ct. In
addition to the negative effects discussed above, bullying victims'
grades may suffer and even "good kids" may be pushed into starting
fights.
ID.ct. at 352. There is also harm to those who witness peer
harassment.
ID.ct.
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. 8. 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.ct. 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.ct. 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.ct., even as only 5%
identified as being so.
ID.ct. at 2. About a quarter (24%) said these
behaviors occurred often or very often.
ID.ct. at 8.
PRIOR LEGISLATIVE HISTORY: A.3496-A/S.1571 (passed Assembly 2007 and
2008); A.9491/S.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/S.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.
STATE OF NEW YORK
________________________________________________________________________
3661--C
Cal. No. 275
2009-2010 Regular Sessions
IN ASSEMBLY
January 28, 2009
___________
Introduced by M. of A. O'DONNELL, GLICK, NOLAN, LIFTON, BENJAMIN,
FIELDS, McENENY, CLARK, PAULIN, ROSENTHAL, JOHN, GALEF, HEVESI,
ESPAILLAT, ENGLEBRIGHT, KAVANAGH, POWELL, N. RIVERA, LANCMAN, PERALTA,
STIRPE, HOYT, DINOWITZ, JAFFEE, SCHIMEL, CAHILL, BRODSKY, TITONE --
Multi-Sponsored by -- M. of A. ALFANO, BARRA, BING, BRENNAN, FARRELL,
GIANARIS, GOTTFRIED, JACOBS, JEFFRIES, KELLNER, KOON, LATIMER, LUPAR-
DO, MARKEY, MILLMAN, PEOPLES-STOKES, PERRY, PHEFFER, SWEENEY, WEISEN-
BERG, WRIGHT -- read once and referred to the Committee on Education
-- reported and referred to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- reported
from committee, advanced to a third reading, amended and ordered
reprinted, retaining its place on the order of third reading
AN ACT to amend the education law, in relation to enacting the dignity
for all students act
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "dignity for all students act".
3 § 2. The education law is amended by adding a new article 2 to read as
4 follows:
5 ARTICLE 2
6 DIGNITY FOR ALL STUDENTS
7 Section 10. Legislative intent.
8 11. Definitions.
9 12. Discrimination and harassment prohibited.
10 13. Policies and guidelines.
11 14. Commissioner's responsibilities.
12 15. Reporting by commissioner.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01245-11-0
A. 3661--C 2
1 16. Protection of people who report discrimination or harass-
2 ment.
3 17. Application.
4 18. Severability and construction.
5 § 10. Legislative intent. The legislature finds that students' ability
6 to learn and to meet high academic standards, and a school's ability to
7 educate its students, are compromised by incidents of discrimination or
8 harassment including bullying, taunting or intimidation. It is hereby
9 declared to be the policy of the state to afford all students in public
10 schools an environment free of discrimination and harassment. The
11 purpose of this article is to foster civility in public schools and to
12 prevent and prohibit conduct which is inconsistent with a school's
13 educational mission.
14 § 11. Definitions. For the purposes of this article, the following
15 terms shall have the following meanings:
16 1. "School property" shall mean in or within any building, structure,
17 athletic playing field, playground, parking lot, or land contained with-
18 in the real property boundary line of a public elementary or secondary
19 school; or in or on a school bus, as defined in section one hundred
20 forty-two of the vehicle and traffic law.
21 2. "School function" shall mean a school-sponsored extra-curricular
22 event or activity.
23 3. "Disability" shall mean disability as defined in subdivision twen-
24 ty-one of section two hundred ninety-two of the executive law.
25 4. "Employee" shall mean employee as defined in subdivision three of
26 section eleven hundred twenty-five of this title.
27 5. "Sexual orientation" shall mean actual or perceived heterosexuali-
28 ty, homosexuality or bisexuality.
29 6. "Gender" shall mean actual or perceived sex and shall include a
30 person's gender identity or expression.
31 7. "Harassment" shall mean the creation of a hostile environment by
32 conduct or by verbal threats, intimidation or abuse that has or would
33 have the effect of unreasonably and substantially interfering with a
34 student's educational performance, opportunities or benefits, or mental,
35 emotional or physical well-being; or conduct, verbal threats, intim-
36 idation or abuse that reasonably causes or would reasonably be expected
37 to cause a student to fear for his or her physical safety; such conduct,
38 verbal threats, intimidation or abuse includes but is not limited to
39 conduct, verbal threats, intimidation or abuse based on a person's actu-
40 al or perceived race, color, weight, national origin, ethnic group,
41 religion, religious practice, disability, sexual orientation, gender or
42 sex.
43 § 12. Discrimination and harassment prohibited. 1. No student shall
44 be subjected to harassment by employees or students on school property
45 or at a school function; nor shall any student be subjected to discrimi-
46 nation based on a person's actual or perceived race, color, weight,
47 national origin, ethnic group, religion, religious practice, disability,
48 sexual orientation, gender, or sex by school employees or students on
49 school property or at a school function. Nothing in this subdivision
50 shall be construed to prohibit a denial of admission into, or exclusion
51 from, a course of instruction based on a person's gender that would be
52 permissible under section thirty-two hundred one-a or paragraph (a) of
53 subdivision two of section twenty-eight hundred fifty-four of this chap-
54 ter and title IX of the Education Amendments of 1972 (20 U.S.C. section
55 1681, et. seq.), or to prohibit, as discrimination based on disability,
A. 3661--C 3
1 actions that would be permissible under section 504 of the Rehabili-
2 tation Act of 1973.
3 2. An age-appropriate version of the policy outlined in subdivision
4 one of this section, written in plain-language, shall be included in the
5 code of conduct adopted by boards of education and the trustees or sole
6 trustee pursuant to section twenty-eight hundred one of this chapter and
7 a summary of such policy shall be included in any summaries required by
8 such section twenty-eight hundred one.
9 § 13. Policies and guidelines. The board of education and the trus-
10 tees or sole trustee of every school district shall create policies and
11 guidelines that shall include, but not be limited to:
12 1. Policies intended to create a school environment that is free from
13 discrimination or harassment;
14 2. Guidelines to be used in school training programs to discourage the
15 development of discrimination or harassment and that are designed:
16 a. to raise the awareness and sensitivity of school employees to
17 potential discrimination or harassment, and
18 b. to enable employees to prevent and respond to discrimination or
19 harassment; and
20 3. Guidelines relating to the development of nondiscriminatory
21 instructional and counseling methods, and requiring that at least one
22 staff member at every school be thoroughly trained to handle human
23 relations in the areas of race, color, weight, national origin, ethnic
24 group, religion, religious practice, disability, sexual orientation,
25 gender, and sex.
26 § 14. Commissioner's responsibilities. The commissioner shall:
27 1. Provide direction, which may include development of model policies
28 and, to the extent possible, direct services, to school districts
29 related to preventing discrimination and harassment and to fostering an
30 environment in every school where all children can learn free of
31 manifestations of bias;
32 2. Provide grants, from funds appropriated for such purpose, to local
33 school districts to assist them in implementing the guidelines set forth
34 in this section; and
35 3. Promulgate regulations to assist school districts in implementing
36 this article including, but not limited to, regulations to assist school
37 districts in developing measured, balanced, and age-appropriate
38 responses to violations of this policy, with remedies and procedures
39 focusing on intervention and education.
40 § 15. Reporting by commissioner. The commissioner shall create a
41 procedure under which material incidents of discrimination and harass-
42 ment on school grounds or at a school function are reported to the
43 department at least on an annual basis. Such procedure shall provide
44 that such reports shall, wherever possible, also delineate the specific
45 nature of such incidents of discrimination or harassment, provided that
46 the commissioner may comply with the requirements of this section
47 through use of the existing uniform violent incident reporting system.
48 In addition the department may conduct research or undertake studies to
49 determine compliance throughout the state with the provisions of this
50 article.
51 § 16. Protection of people who report discrimination or harassment.
52 Any person having reasonable cause to suspect that a student has been
53 subjected to discrimination or harassment by an employee or student, on
54 school grounds or at a school function, who, acting reasonably and in
55 good faith, either reports such information to school officials, to the
56 commissioner, or to law enforcement authorities or otherwise initiates,
A. 3661--C 4
1 testifies, participates or assists in any formal or informal proceedings
2 under this article, shall have immunity from any civil liability that
3 may arise from the making of such report or from initiating, testifying,
4 participating or assisting in such formal or informal proceedings, and
5 no school district or employee shall take, request or cause a retaliato-
6 ry action against any such person who, acting reasonably and in good
7 faith, either makes such a report or initiates, testifies, participates
8 or assists in such formal or informal proceedings.
9 § 17. Application. Nothing in this article shall:
10 1. Apply to private, religious or denominational educational insti-
11 tutions; or
12 2. Preclude or limit any right or cause of action provided under any
13 local, state or federal ordinance, law or regulation including but not
14 limited to any remedies or rights available under the Individuals With
15 Disabilities Education Act, Title VII of the Civil Rights Law of 1964,
16 section 504 of the Rehabilitation Act of 1973 or the Americans with
17 Disabilities Act of 1990.
18 § 18. Severability and construction. The provisions of this article
19 shall be severable, and if any court of competent jurisdiction declares
20 any phrase, clause, sentence or provision of this article to be invalid,
21 or its applicability to any government agency, person or circumstance is
22 declared invalid, the remainder of this article and its relevant appli-
23 cability shall not be affected. The provisions of this article shall be
24 liberally construed to give effect to the purposes thereof.
25 § 3. Section 801-a of the education law, as added by chapter 181 of
26 the laws of 2000, is amended to read as follows:
27 § 801-a. Instruction in civility, citizenship and character education.
28 The regents shall ensure that the course of instruction in grades
29 kindergarten through twelve includes a component on civility, citizen-
30 ship and character education. Such component shall instruct students on
31 the principles of honesty, tolerance, personal responsibility, respect
32 for others, observance of laws and rules, courtesy, dignity and other
33 traits which will enhance the quality of their experiences in, and
34 contributions to, the community. The regents shall determine how to
35 incorporate such component in existing curricula and the commissioner
36 shall promulgate any regulations needed to carry out such determination
37 of the regents. For the purposes of this section, "tolerance," "respect
38 for others" and "dignity" shall include awareness and sensitivity to
39 discrimination or harassment and civility in the relations of people of
40 different races, weights, national origins, ethnic groups, religions,
41 religious practices, mental or physical abilities, sexual orientations,
42 genders, and sexes.
43 § 4. Paragraphs l and m of subdivision 2 of section 2801 of the educa-
44 tion law, as added by chapter 181 of the laws of 2000, are amended and a
45 new paragraph n is added to read as follows:
46 l. a minimum suspension period, for students who repeatedly are
47 substantially disruptive of the educational process or substantially
48 interfere with the teacher's authority over the classroom, provided that
49 the suspending authority may reduce such period on a case by case basis
50 to be consistent with any other state and federal law. For purposes of
51 this section, the definition of "repeatedly are substantially disrup-
52 tive" shall be determined in accordance with the regulations of the
53 commissioner; [and]
54 m. a minimum suspension period for acts that would qualify the pupil
55 to be defined as a violent pupil pursuant to paragraph a of subdivision
56 two-a of section thirty-two hundred fourteen of this chapter, provided
A. 3661--C 5
1 that the suspending authority may reduce such period on a case by case
2 basis to be consistent with any other state and federal law[.]; and
3 n. provisions to comply with article two of this chapter.
4 § 5. This act shall take effect July 1, 2012, except that any rules or
5 regulations necessary for the timely implementation of this act on its
6 effective date shall be promulgated on or before such date.
