SENATE DOCKET, NO. 2559 FILED ON: 4/28/2010
SENATE . . . . . . . . . . . . . . No. 2404
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The Commonwealth of Massachusetts
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In the Year Two Thousand Ten
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An Act relative to bullying in schools.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Chapter 6 of the General Laws is hereby amended by inserting after section 15MMMMM the following section:-
15NNNNN. The governor shall annually issue a proclamation setting apart the fourth Wednesday in January as No Name Calling Day to increase public awareness of the devastating effects of verbal bullying, to encourage students to use positive dialogue and pledge not to use hurtful names on this designated day, to promote tolerance and respect for differences and to reaffirm the commitment of the citizens of the commonwealth to basic human rights and dignity.
SECTION 2. The third paragraph of section 1D of chapter 69 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out the fourth sentence and inserting in place thereof the following sentence:- The standards may provide for instruction in the issues of nutrition, physical education, AIDS education, violence prevention, including teen dating violence, bullying prevention, conflict resolution and drug, alcohol and tobacco abuse prevention.
SECTION 3. The first paragraph of section 37H of chapter 71 of the General Laws, as so appearing, is hereby amended by inserting after the third sentence the following sentence:- The policies shall also prohibit bullying as defined in section 37O and shall include the student-related sections of the bullying prevention and intervention plan required by said section 37O.
SECTION 4. The third paragraph of said section 37H of said chapter 71, as so appearing, is hereby amended by inserting after the first sentence the following sentence:- The student handbook shall include an age-appropriate summary of the student-related sections of the bullying prevention and intervention plan required by section 37O.
SECTION 5. Said chapter 71 is hereby further amended by inserting after section 37N the following section:-
Section 37O. (a) As used in this section the following words shall, unless the context clearly requires otherwise, have the following meaning:-
"Approved private day or residential school”, a school that accepts, through agreement with a school committee, a child requiring special education pursuant to section 10 of chapter 71B.
“Bullying”, 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. For the purposes of this section, bullying shall include cyber-bullying.
“Charter school”, commonwealth charter schools and Horace Mann charter schools established pursuant to section 89 of chapter 71.
“Cyber-bullying”, bullying through the use of technology or any electronic communication, which shall include, but shall not be limited to, any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications. Cyber-bullying shall also include (i) the creation of a web page or blog in which the creator assumes the identity of another person or (ii) the knowing impersonation of another person as the author of posted content or messages, if the creation or impersonation creates any of the conditions enumerated in clauses (i) to (v), inclusive, of the definition of bullying. Cyber-bullying shall also include the distribution by electronic means of a communication to more than one person or the posting of material on an electronic medium that may be accessed by one or more persons, if the distribution or posting creates any of the conditions enumerated in clauses (i) to (v), inclusive, of the definition of bullying.
“Collaborative school”, a school operated by an educational collaborative established pursuant to section 4E of chapter 40.
“Department”, the department of elementary and secondary education.
“Hostile environment”, a situation in which bullying causes the school environment to be permeated with intimidation, ridicule or insult that is sufficiently severe or pervasive to alter the conditions of the student’s education.
“Plan”, a bullying prevention and intervention plan established pursuant to subsection (d).
“Perpetrator”, a student who engages in bullying or retaliation.
“School district”, the school department of a city or town, a regional school district or a county agricultural school.
“School grounds”, property on which a school building or facility is located or property that is owned, leased or used by a school district, charter school, non-public school, approved private day or residential school, or collaborative school for a school-sponsored activity, function, program, instruction or training.
“Victim”, a student against whom bullying or retaliation has been perpetrated.
(b) Bullying shall be prohibited: (i) on school grounds, property immediately adjacent to school grounds, at a school-sponsored or school-related activity, function or program whether on or off school grounds, at a school bus stop, on a school bus or other vehicle owned, leased or used by a school district or school, or through the use of technology or an electronic device owned, leased or used by a school district or school and (ii) at a location, activity, function or program that is not school-related, or through the use of technology or an electronic device that is not owned, leased or used by a school district or school, 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. Nothing contained herein shall require schools to staff any non-school related activities, functions, or programs.
Retaliation against a person who reports bullying, provides information during an investigation of bullying, or witnesses or has reliable information about bullying shall be prohibited.
(c) Each school district, charter school, approved private day or residential school and collaborative school shall provide age-appropriate instruction on bullying prevention in each grade that is incorporated into the curriculum of the school district or school. The curriculum shall be evidence-based.
(d) Each school district, charter school, non-public school, approved private day or residential school and collaborative school shall develop, adhere to and update a plan to address bullying prevention and intervention in consultation with teachers, school staff, professional support personnel, school volunteers, administrators, community representatives, local law enforcement agencies, students, parents and guardians. The consultation shall include, but not be limited to, notice and a public comment period; provided, however, that a non-public school shall only be required to give notice to and provide a comment period for families that have a child attending the school. The plan shall be updated at least biennially.
Each plan shall include, but not be limited to: (i) descriptions of and statements prohibiting bullying, cyber-bullying and retaliation; (ii) clear procedures for students, staff, parents, guardians and others to report bullying or retaliation; (iii) a provision that reports of bullying or retaliation may be made anonymously; provided, however, that no disciplinary action shall be taken against a student solely on the basis of an anonymous report; (iv) clear procedures for promptly responding to and investigating reports of bullying or retaliation; (v) the range of disciplinary actions that may be taken against a perpetrator for bullying or retaliation; provided, however, that the disciplinary actions shall balance the need for accountability with the need to teach appropriate behavior; (vi) clear procedures for restoring a sense of safety for a victim and assessing that victim’s needs for protection; (vii) strategies for protecting from bullying or retaliation a person who reports bullying, provides information during an investigation of bullying or witnesses or has reliable information about an act of bullying; (viii) procedures consistent with state and federal law for promptly notifying the parents or guardians of a victim and a perpetrator; provided, further, that the parents or guardians of a victim shall also be notified of the action taken to prevent any further acts of bullying or retaliation; and provided, further, that the procedures shall provide for immediate notification pursuant to regulations promulgated under this subsection by the principal or person who holds a comparable role to the local law enforcement agency when criminal charges may be pursued against the perpetrator; (ix) a provision that a student who knowingly makes a false accusation of bullying or retaliation shall be subject to disciplinary action; and (x) a strategy for providing counseling or referral to appropriate services for perpetrators and victims and for appropriate family members of said students. The plan shall afford all students the same protection regardless of their status under the law.
A school district, charter school, non-public school, approved private day or residential school or collaborative school may establish separate discrimination or harassment policies that include categories of students. Nothing in this section shall prevent a school district, charter school, non-public school, approved private day or residential school or collaborative school from remediating any discrimination or harassment based on a person’s membership in a legally protected category under local, state or federal law.
The plan for a school district, charter school, approved private day or residential school and collaborative school shall include a provision for ongoing professional development to build the skills of all staff members, including, but not limited to, educators, administrators, school nurses, cafeteria workers, custodians, bus drivers, athletic coaches, advisors to extracurricular activities and paraprofessionals, to prevent, identify and respond to bullying. The content of such professional development shall include, but not be limited to: (i) developmentally appropriate strategies to prevent bullying incidents; (ii) developmentally appropriate strategies for immediate, effective interventions to stop bullying incidents; (iii) information regarding the complex interaction and power differential that can take place between and among a perpetrator, victim and witnesses to the bullying; (iv) research findings on bullying, including information about specific categories of students who have been shown to be particularly at risk for bullying in the school environment; (v) information on the incidence and nature of cyber-bullying; and (vi) internet safety issues as they relate to cyber-bullying. The department shall identify and offer information on alternative methods for fulfilling the professional development requirements of this section, at least 1 of which shall be available at no cost to school districts, charter schools, approved private day or residential schools and collaborative schools.
The plan shall include provisions for informing parents and guardians about the bullying prevention curriculum of the school district or school and shall include, but not be limited to: (i) how parents and guardians can reinforce the curriculum at home and support the school district or school plan; (ii) the dynamics of bullying; and (iii) online safety and cyber-bullying.
The department shall promulgate rules and regulations on the requirements related to a principal’s duties under clause (viii) of the second paragraph of this subsection; provided, that school districts, charter schools, approved private day or residential schools and collaborative schools shall be subject to the regulations. A non-public school shall develop procedures for immediate notification by the principal or person who holds a comparable role to the local law enforcement agency when criminal charges may be pursued against the perpetrator.
(e)(1) Each school district, charter school, non-public school, approved private day or residential school and collaborative school shall provide to students and parents or guardians, in age-appropriate terms and in the languages which are most prevalent among the students, parents or guardians, annual written notice of the relevant student-related sections of the plan.
(2) Each school district, charter school, non-public school, approved private day or residential school and collaborative school shall provide to all school staff annual written notice of the plan. The faculty and staff at each school shall be trained annually on the plan applicable to the school. Relevant sections of the plan relating to the duties of faculty and staff shall be included in a school district or school employee handbook.
(3) The plan shall be posted on the website of each school district, charter school, non-public school, approved private day or residential school and collaborative school.
(f) Each school principal or the person who holds a comparable position shall be responsible for the implementation and oversight of the plan at his school.
(g) A member of a school staff, including, but not limited to, an educator, administrator, school nurse, cafeteria worker, custodian, bus driver, athletic coach, advisor to an extracurricular activity or paraprofessional, shall immediately report any instance of bullying or retaliation the staff member has witnessed or become aware of to the principal or to the school official identified in the plan as responsible for receiving such reports or both. Upon receipt of such a report, the school principal or a designee shall promptly conduct an investigation. If the school principal or a designee determines that bullying or retaliation has occurred, the school principal or designee shall (i) notify the local law enforcement agency if the school principal or designee believes that criminal charges may be pursued against a perpetrator; (ii) take appropriate disciplinary action; (iii) notify the parents or guardians of a perpetrator; and (iv) notify the parents or guardians 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.
(h) If an incident of bullying or retaliation involves students from more than one school district, charter school, non-public school, approved private day or residential school or collaborative school, the school district or school first informed of the bullying or retaliation shall, consistent with state and federal law, promptly notify the appropriate administrator of the other school district or school so that both may take appropriate action. If an incident of bullying or retaliation occurs on school grounds and involves a former student under the age of 21 who is no longer enrolled in a local school district, charter school, non-public school, approved private day or residential school or collaborative school, the school district or school informed of the bullying or retaliation shall contact law enforcement consistent with the provisions of clause (viii) of the second paragraph of subsection (d).
(i) Nothing in this section shall supersede or replace existing rights or remedies under any other general or special law, nor shall this section create a private right of action.
(j) The department, after consultation with the department of public health, the department of mental health, the attorney general, the Massachusetts District Attorneys Association and experts on bullying shall: (i) publish a model plan for school districts and schools to consider when creating their plans; and (ii) compile a list of bullying prevention and intervention resources, evidence-based curricula, best practices and academic-based research that shall be made available to schools. The model plan shall be consistent with the behavioral health and public schools framework developed by the department in accordance with section 19 of chapter 321 of the acts of 2008. The resources may include, but shall not be limited to, print, audio, video or digital media; subscription based online services; and on-site or technology-enabled professional development and training sessions. The department shall biennially update the model plan and the list of the resources, curricula, best practices and research and shall post them on its website.
SECTION 6. Said chapter 71 is hereby further amended by adding after section 92, added by section 8 of chapter 12 of the acts of 2010, the following section: -
Section 93. Every public school providing computer access to students shall have a policy regarding internet safety measures to protect students from inappropriate subject matter and materials that can be accessed via the internet and shall notify the parents or guardians of all students attending the school of the policy. The policy and any standards and rules enforcing the policy shall be prescribed by the school committee in conjunction with the superintendent or the board of trustees of a commonwealth charter school.
SECTION 7. The sixth paragraph of section 3 of chapter 71B of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting after the third sentence the following sentence:-
Whenever the evaluation of the Individualized Education Program team indicates that the child has a disability that affects social skills development or that the child is vulnerable to bullying, harassment or teasing because of the child’s disability, the Individualized Education Program shall address the skills and proficiencies needed to avoid and respond to bullying, harassment or teasing.
SECTION 8. Said section 3 of said chapter 71B, as so appearing, is hereby amended by inserting after the word “proficiencies”, in line 154, the following words:- ; the skills and proficiencies needed to avoid and respond to bullying, harassment or teasing.
SECTION 9. Section 43 of chapter 265 of the General Laws, as so appearing, is hereby amended by striking out subsection (a) and inserting in place thereof the following subsection:-
(a) Whoever (1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking and shall be punished by imprisonment in the state prison for not more than 5 years or by a fine of not more than $1,000, or imprisonment in the house of correction for not more than 2 ½ years or by both such fine and imprisonment. The conduct, acts or threats described in this subsection shall include, but not be limited to, conduct, acts or threats conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.
SECTION 10. Section 43A of said chapter 265, as so appearing, is hereby amended by striking out paragraph (a) and inserting in place thereof the following paragraph:-
(a) Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment and shall be punished by imprisonment in a house of correction for not more than 2 ½ years or by a fine of not more than $1,000, or by both such fine and imprisonment. The conduct or acts described in this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.
SECTION 11. Subsection (3) of section 13B of chapter 268 of the General Laws, as so appearing, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- Such act shall include, but not be limited to, an act conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including but not limited to any device that transfers signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.
SECTION 12. Chapter 269 of the General Laws is hereby amended by striking out section 14A, as so appearing, and inserting in place thereof the following section:-
Section 14A. Whoever telephones another person or contacts another person by electronic communication, or causes a person to be telephoned or contacted by electronic communication, repeatedly, for the sole purpose of harassing, annoying or molesting the person or the person’s family, whether or not conversation ensues, or whoever telephones or contacts a person repeatedly by electronic communication and uses indecent or obscene language to the person, shall be punished by a fine of not more than $500 or by imprisonment for not more than 3 months, or by both such a fine and imprisonment.
For purposes of this section, “electronic communication” shall include, but not be limited to, any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.
SECTION 13. The department of elementary and secondary education shall periodically review school districts, charter schools, approved private day or residential schools and collaborative schools to determine whether the districts and schools are in compliance with this act.
SECTION 14. The department of elementary and secondary education shall issue a report detailing cost-effective ways to implement the professional development requirements in subsection (d) of section 37O of chapter 71 of the General Laws; provided, further, that the report shall: (i) include an option available at no cost to school districts, charter schools, approved private day or residential schools and collaborative schools; (ii) explore the feasibility of an option for a “train-the-trainer” model, so-called, with demonstrated success and an option for online professional development; and (iii) include any other options which may be cost effective; provided, further, that the report shall include a cost estimate for the professional development; and provided, further, that the report shall be provided to the clerks of the senate and house of representatives not later than August 31, 2010; and provided, further, that the clerks of the senate and house of representatives shall forward the report to the chairs of the house and senate committees on ways and means and the house and senate chairs of the joint committee on education.
SECTION 15. School districts, charter schools, approved private day or residential schools and collaborative schools shall establish a bullying prevention and intervention plan in compliance with this act and shall file the plan with the department of elementary and secondary education on or before December 31, 2010; provided, however, that school districts, charter schools, approved private day or residential schools and collaborative schools shall establish and have in place the professional development provisions of the fourth paragraph of subsection (d) of section 37O of chapter 71 of the General Laws at the start of the 2010-2011 academic year. Non-public schools shall establish a bullying prevention and intervention plan in compliance with this act on or before December 31, 2010.
SECTION 16. The department of elementary and secondary education shall publish guidelines for the implementation of social and emotional learning curricula in kindergarten to grade 12, inclusive, on or before June 30, 2011. The guidelines shall be updated biennially. For purposes of this section, social and emotional learning shall mean the processes by which children acquire the knowledge, attitudes and skills necessary to recognize and manage their emotions, demonstrate caring and concern for others, establish positive relationships, make responsible decisions and constructively handle challenging social situations.
SECTION 17. The department of elementary and secondary education shall promulgate the rules and regulations required under the last paragraph of subsection (d) of Section 37O of chapter 71 of the General Laws on or before September 30, 2010.
SECTION 18. There shall be a special commission to consist of 7 members: 1 of whom shall be the attorney general or a designee who shall chair the commission; 1 of whom shall be a representative of the Massachusetts District Attorneys Association; 1 of whom shall be a representative of the Massachusetts Chiefs of Police Association; 1 of whom shall be a representative of the Massachusetts Sheriffs’ Association; 1 of whom shall be a representative of the Massachusetts Association of School Committees; 1 of whom shall be a representative of the Massachusetts Association of School Superintendents; and 1 of whom shall be a representative of the Association of Independent Schools in New England who represents a Massachusetts school, for the purpose of making an investigation and study relative to bullying and cyber-bullying. The commission shall review the General Laws to determine if they need to be amended in order to address bullying and cyber-bullying; provided, further, that the commission shall also investigate parental responsibility and liability for bullying and cyber-bullying. The commission shall report to the general court the results of its investigation and study and its recommendations, if any, together with drafts of legislation necessary to carry out such recommendations, by filing the same with the clerks of the senate and the house of representatives who shall forward the same to the chairs of the joint committee on education, the chairs of the joint committee on the judiciary, and the chairs of the house and senate committees on ways and means on or before June 30, 2011.