EDU-07-13-00014-P Reporting Requirements Under the Dignity for All Students Act

2/13/13 N.Y. St. Reg. EDU-07-13-00014-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 07

February 13, 2013

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-07-13-00014-P

Reporting Requirements Under the Dignity for All Students Act

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of section 100.2(kk) of Title 8 NYCRR.

Statutory authority:

Education Law, sections 11(7) and (8), 13(1), 15(not subdivided), 16(not subdivided), 101(not subdivided), 207(not subdivided), 305(1) and (2) and 2854(1)(b); and L. 2012, ch. 102

Subject:

Reporting requirements under the Dignity for All Students Act.

Purpose:

To implement ch. 102, L. 2012 changes to the Dignity Act, for reporting incidents of harassment, bullying and discrimination.

Text of proposed rule:

Pursuant to Education Law sections 11, 15, 16, 101, 207, 215, 305 and 2854(1)(b) and Chapter 102 of the Laws of 2012.

Subdivision (kk) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective July 1, 2013, as follows:

(kk) Dignity Act reporting requirements.

(1) Definitions. For purposes of this subdivision:

(i) "School property" means in or within any building, structure, athletic playing field, playground, parking lot, or land contained within the real property boundary line of a public elementary or secondary school, including a charter school; or in or on a school bus, as defined in Vehicle and Traffic Law section 142.

(ii) "School function" means a school-sponsored extracurricular event or activity.

(iii) "Disability" means disability as defined in Executive Law section 292(21).

(iv) "Employee" means employee as defined in Education Law section 1125(3), including an employee of a charter school.

(v) "Sexual orientation" means actual or perceived heterosexuality, homosexuality or bisexuality.

(vi) "Gender" means actual or perceived sex and shall include a person’s gender identity or expression.

(vii) "Discrimination" means discrimination against any student by a student or students and/or an employee or employees on school property or at a school function including, but not limited to, discrimination based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex.

(viii) "Harassment or bullying" means the creation of a hostile environment by conduct or by [verbal] threats, intimidation or abuse, including cyberbullying as defined in Education Law section 11(8), that either:

(a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional [or] and/or physical well-being [; or], including conduct, [verbal] threats, intimidation or abuse that reasonably causes or would reasonably be expected to cause emotional harm; or

(b) reasonably causes or would reasonably be expected to cause physical injury to a student or to cause a student to fear for his or her physical safety. [; such conduct, verbal threats, intimidation or abuse includes but is not limited to conduct, verbal threats, intimidation or abuse]

(c) Such definition shall include acts of harassment or bullying that occur:

(i) on school property, as defined in section 100.2(kk)(1)(i) of this Part; and/or

(ii) at a school function, as defined in section 100.2(kk)(1) of this Part; or

(iii) off school property where such acts create or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.

(d) For purposes of this subdivision, the term “threats, intimidation or abuse” shall include verbal and non-verbal actions. Acts of harassment and bullying shall include, but not be limited to, acts based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex.

(e) "Emotional harm" that takes place in the context of “harassment or bullying” means harm to a student's emotional well-being through creation of a hostile school environment that is so severe or pervasive as to unreasonably and substantially interfere with a student's education.

(ix) "Material Incident of [Discrimination and/or] Harassment, Bullying, and/or Discrimination" means a single verified incident or a series of related verified incidents where a student is subjected to [discrimination and/or] harassment, bullying and/or discrimination by a student and/or employee on school property or at a school function [that creates a hostile environment by conduct, with or without physical contact and/or by verbal threats, intimidation or abuse, of such severe or pervasive nature that:

(a) has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional and/or physical well-being; or

(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety]. In addition, such term shall include a verified incident or series of related incidents of harassment or bullying that occur off school property, meets the definition in subclause (1)(viii)(c)(iii) of this subdivision, and is the subject of a written or oral complaint to the superintendent, principal, or their designee, or other school employee. Such conduct shall include, but is not limited to, threats, intimidation or abuse based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex; provided that nothing in this subdivision shall be construed to prohibit a denial of admission into, or exclusion from, a course of instruction based on a person’s gender that would be permissible under Education Law sections 3201-a or 2854(2)(a) and Title IX of the Education Amendments of 1972 (20 U.S.C. section 1681, et seq.), or to prohibit, as discrimination based on disability, actions that would be permissible under section 504 of the Rehabilitation Act of 1973.

(2) Reporting of incidents to the superintendent, principal, or designee.

(i) School employees who witness harassment, bullying, and/or discrimination or receive an oral or written report of harassment, bullying, and/or discrimination shall promptly orally notify the principal, superintendent, or their designee not later than one school day after such employee witnesses or receives a report of harassment, bullying, and/or discrimination, and.

(ii) such school employee shall also file a written report in a manner prescribed by, as applicable, the school district, board of cooperative educational services (BOCES) or charter school with the principal, superintendent, or their designee no later than two school days after making an oral report.

(iii) the principal, superintendent or the principal's or superintendent's designee shall lead or supervise the thorough investigation of all reports of harassment, bullying and/or discrimination, and ensure that such investigation is completed promptly after receipt of any written reports made under Education Law section 13.

(iii) When an investigation verifies a material incident of harassment, bullying, and/or discrimination, the superintendent, principal, or designee shall take prompt action, consistent with the district’s code of conduct including but not limited to the provisions of section 100.2(l)(2)(ii)(h), reasonably calculated to end the harassment, bullying, and/or discrimination, eliminate any hostile environment, create a more positive school culture and climate, prevent recurrence of the behavior, and ensure the safety of the student or students against whom such behavior was directed.

(iv) The principal, superintendent, or their designee shall notify promptly the appropriate local law enforcement agency when it is believed that any harassment, bullying or discrimination constitutes criminal conduct.

(v) The principal shall provide a regular report on data and trends related to harassment, bullying, and/or discrimination to the superintendent. For the purpose of this subdivision, the term “regular report” shall mean at least once during each school year, and in a manner prescribed by, as applicable, the school district, BOCES or charter school.

(3) Reporting of material incidents to the commissioner.

(i) For the [2012-2013] 2013-2014 school year and for each succeeding school year thereafter, each school district, board of cooperative educational services (BOCES) and charter school shall submit to the commissioner an annual report of material incidents of [discrimination and/or] harassment, bullying, and/or discrimination, that occurred in such school year, in accordance with Education Law section 15 and this subdivision. Such report shall be submitted in a manner prescribed by the commissioner, on or before the basic educational data system (BEDS) reporting deadline or such other date as determined by the commissioner.

(ii) For purposes of reporting pursuant to this subdivision, a school district, BOCES or charter school shall include in its annual report all material incidents of [discrimination and/or] harassment, bullying, and/or discrimination that:

(a) are the result of the investigation of a written or oral complaint made to the superintendent, [school] principal or their designee, [or other school administrator responsible for school discipline,] or to any other employee; or

(b) are otherwise directly observed by such superintendent, principal or [administrator,] their designee, or by any other employee regardless of whether a complaint is made.

(iii) Such report shall include information describing the specific nature of the incident, including, but not limited to:

(a) the type(s) of bias involved (actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, sex, or other). Where multiple types of bias are involved, they shall all be reported;

(b) whether the incident resulted from student and/or employee conduct;

(c) whether the incident involved physical contact and/or verbal threats, intimidation or abuse, including cyberbullying as defined in Education Law section 11(8);

(d) the location where the incident occurred (on school property or at a school function, or off school property, where applicable).

[(3)] (4) Protection of people who report discrimination and/or harassment.

(i) Pursuant to Education Law section 16, any person having reasonable cause to suspect that a student has been subjected to [discrimination and/or] harassment, bullying, and/or discrimination by an employee or student, on school grounds or at a school function, who acting reasonably and in good faith, either reports such information to school officials, to the commissioner, or to law enforcement authorities or otherwise initiates, testifies, participates or assists in any formal or informal proceedings under this subdivision, shall have immunity from any civil liability that may arise from the making of such report or from initiating, testifying, participating or assisting in such formal or informal proceedings.

(ii) No school district, BOCES or charter school, or an employee thereof, shall take, request or cause a retaliatory action against any such person who, acting reasonably and in good faith, either makes such a report or initiates, testifies, participates or assists in such formal or informal proceedings.

(iii) Pursuant to Education Law section 13, retaliation by any school employee or student shall be prohibited against any individual who, in good faith, reports or assists in the investigation of harassment, bullying, and/or discrimination.

Text of proposed rule and any required statements and analyses may be obtained from:

Mary Gammon, State Education Department, Office of Counsel, State Education Building Room 148, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Ken Slentz, Deputy Commissioner P-12 Education, State Education Department, State Education Building 2M West, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Education Law section 11(7), as amended by Chapter 102 of the Laws of 2012, expands the definition of "Harassment" to include "bullying" and "cyberbullying" and to include certain acts occurring off school property, for purposes of the Dignity for All Students Act ("Dignity Act"). Education Law section 11(8), as added by Chapter 102, provides a definition of "cyberbullying."

Education Law section 13(1), as amended by Chapter 102 of the Laws of 2012(1) includes provisions specifying procedures for reporting incidents of harassment, bullying and discrimination to school authorities and local law enforcement agencies.

Education Law section 15, as amended by Chapter 102 of the Laws of 2012, requires the Commissioner to create a procedure under which material incidents of harassment, bullying and discrimination on school grounds or at a school function are reported to the State Education Department at least on an annual basis. The procedure shall provide that such reports shall, wherever possible, also delineate the specific nature of such incidents of harassment, bullying and discrimination.

Education Law section 16, as amended by Chapter 102 of the Laws of 2012, confers, under certain specified conditions, immunity from civil liability on persons reporting harassment, bullying or discrimination against students by a school employee or student. The statute further provides that no school district or employee shall take, request or cause a retaliatory action against a person, acting reasonably and in good faith, who makes such report or who initiates, testifies, participates or assists in any formal or informal proceeding under Education Law Article 2.

Education Law section 101 continues the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges the Department with the general management and supervision of public schools and the educational work of the State.

Education Law section 207 grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.

Education Law section 305(1) empowers the Commissioner of Education to be the chief executive officer of the State system of education and the Board of Regents and authorizes the Commissioner to enforce laws relating to the educational system and to execute educational policies determined by the Board of Regents. Education Law section 305(2) authorizes the Commissioner to have general supervision over all schools subject to the Education Law.

Education Law section 2854(1)(b) provides that charter schools shall meet the same health and safety, civil rights, and student assessment requirements applicable to other public schools, except as otherwise specifically provided in Article 56 of the Education Law.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the above statutory authority and is necessary to implement the reporting requirements of the Dignity Act, as amended by Chapter 102 of the Laws of 2012.

3. NEEDS AND BENEFITS:

The proposed amendment to section 100.2(kk) of the Commissioner's Regulations is necessary to conform the Commissioner's Regulations to, and otherwise implement, the reporting requirements of the Dignity Act, as amended by Chapter 102 of the Laws of 2012, to ensure that no student shall be subjected to harassment, bullying (including cyberbullying) and discrimination by employees or students.

4. COSTS:

(a) Costs to State government: None.

(b) Costs to local government: None.

(c) Costs to private regulated parties: None.

(d) Costs to regulating agency for implementation and continued administration of this rule: None.

The proposed amendment is necessary to implement Chapter 102 of the Laws of 2012 and will not impose any additional costs beyond those imposed by the statute.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment is necessary to conform the Commissioner's Regulations to, and to otherwise implement, Chapter 102 of the Laws of 2012, by establishing requirements for reporting incidents of harassment, bullying (including cyberbullying) and discrimination to school authorities and local law enforcement agencies, and for reporting material incidents of harassment, bullying/cyberbullying and discrimination to the Commissioner. The proposed amendment will not impose any additional program, service, duty or responsibility beyond those imposed by the statute.

Consistent with Chapter 102, the proposed amendment revises the regulation to add provisions for reporting of incidents of harassment, bullying/cyberbullying and discrimination to the superintendent, principal, or their designee, including requirements that:

(1) School employees who witness harassment, bullying, and/or discrimination or receive an oral or written report of such acts shall promptly orally notify the principal, superintendent, or their designee not later than one school day after such employee witnesses or receives a report of such acts, and shall also file a written report with the principal, superintendent, or their designee no later than two school days after making an oral report.

(2) The principal, superintendent or the principal's or superintendent's designee shall lead or supervise the thorough investigation of all reports of harassment, bullying and/or discrimination, and ensure that such investigation is completed promptly after receipt of any written reports.

(3) When an investigation verifies a material incident of harassment, bullying, and/or discrimination, the superintendent, principal, or designee shall take prompt action, reasonably calculated to end the harassment, bullying, and/or discrimination, eliminate any hostile environment, create a more positive school culture and climate, prevent recurrence of the behavior, and ensure the safety of the student or students against whom such behavior was directed.

(4) The principal, superintendent, or their designee shall notify promptly the appropriate local law enforcement agency when it is believed that any harassment, bullying or discrimination constitutes criminal conduct.

(5) The principal shall provide a regular report, at least once during each school year, on data and trends related to harassment, bullying, and/or discrimination to the superintendent.

(6) Pursuant to Education Law section 13, retaliation by any school employee or student shall be prohibited against any individual who, in good faith, reports or assists in the investigation of harassment, bullying, and/or discrimination.

6. PAPERWORK:

For the 2013-2014 school year and for each succeeding school year thereafter, each school district, board of cooperative educational services (BOCES) and charter school shall submit to the Commissioner an annual report of material incidents of harassment, bullying and discrimination that occurred in such school year.

A school district, BOCES or charter school shall include in its annual report all material incidents of harassment, bullying and discrimination that:

(a) are the result of the investigation of a written or oral complaint made to the superintendent, principal, or their designee, or to any other employee; or

(b) are otherwise directly observed by such superintendent, principal or their designee, or by any other employee regardless of whether a complaint is made.

The report shall include information describing the specific nature of the incident, including, but not limited to:

(a) the type(s) of bias involved (actual or perceived race, color, weight, national origin, ethnic group, religion, religious practices, disability, sexual orientation, gender, sex or other). Where multiple types of bias are involved, they shall all be reported;

(b) whether the incident resulted from student and/or employee conduct;

(c) whether the incident involved physical contact and/or verbal threats, intimidation or abuse, including cyberbullying, and

(d) the location where the incident occurred (on school property and/or at a school function, or off school property, where applicable).

No school district, BOCES or charter school, or an employee thereof, shall take, request or cause a retaliatory action against any such person who, acting reasonably and in good faith, either makes such a report or initiates, testifies, participates or assists in such formal or informal proceedings. Retaliation by any school employee or student shall be prohibited against any individual, who, in good faith reports or assists in the investigation of harassment, bullying and/or discrimination.

Each school district, BOCES and charter school shall annually submit its report on material incidents of harassment, bullying and discrimination in a manner prescribed by the commissioner, on or before the basic educational data system (BEDS) reporting deadline or such other date as determined by the Commissioner.

7. DUPLICATION:

The proposed amendment does not duplicate existing State or Federal regulations, and is necessary to implement Chapter 102 of the Laws of 2012.

8. ALTERNATIVES:

The proposed amendment is necessary to conform the Commissioner's Regulations to, and to otherwise implement, Chapter 102 of the Laws of 2012, by establishing requirements for reporting incidents of harassment, bullying (including cyberbullying) and discrimination to school authorities and local law enforcement agencies, and for reporting material incidents of harassment, bullying (including cyberbullying) and discrimination to the Commissioner. There are no viable alternatives and none were considered.

9. FEDERAL STANDARDS:

There are no related Federal standards.

10. COMPLIANCE SCHEDULE:

The proposed amendment is necessary to conform the Commissioner's Regulations to Chapter 102 of the Laws of 2012, and will not impose any additional compliance requirements or costs on regulated parties beyond those imposed by the statute. It is anticipated that regulated parties will be able to achieve compliance with proposed amendment by its effective date.

Regulatory Flexibility Analysis

Small Businesses:

The proposed amendment applies to school districts, boards of cooperative educational services (BOCES) and charter schools and relates to reporting requirements under the Dignity for All Students Act ("Dignity Act"), as amended by Chapter 102 of the Laws of 2012. The proposed rule does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed rule that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local governments:

1. EFFECT OF RULE:

The proposed rule applies to each school district, BOCES and charter school in the State. At present, there are 695 school districts (including New York City), 37 BOCES and approximately 190 charter schools.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment is necessary to conform the Commissioner's Regulations to, and to otherwise implement, Chapter 102 of the Laws of 2012, by establishing requirements for reporting incidents of harassment, bullying (including cyberbullying) and discrimination to school authorities and local law enforcement agencies, and for reporting material incidents of harassment, bullying/cyberbullying and discrimination to the Commissioner. The proposed amendment will not impose any additional compliance requirements on school districts, BOCES or charter schools beyond those imposed by the statute.

Consistent with Chapter 102, the proposed amendment revises the regulation to add provisions for reporting of incidents of harassment, bullying/cyberbullying and discrimination to the superintendent, principal, or their designee, including requirements that:

(1) School employees who witness harassment, bullying, and/or discrimination or receive an oral or written report of such acts shall promptly orally notify the principal, superintendent, or their designee not later than one school day after such employee witnesses or receives a report of such acts, and shall also file a written report with the principal, superintendent, or their designee no later than two school days after making an oral report.

(2) The principal, superintendent or the principal's or superintendent's designee shall lead or supervise the thorough investigation of all reports of harassment, bullying and/or discrimination, and ensure that such investigation is completed promptly after receipt of any written reports.

(3) When an investigation verifies a material incident of harassment, bullying, and/or discrimination, the superintendent, principal, or designee shall take prompt action, reasonably calculated to end the harassment, bullying, and/or discrimination, eliminate any hostile environment, create a more positive school culture and climate, prevent recurrence of the behavior, and ensure the safety of the student or students against whom such behavior was directed.

(4) The principal, superintendent, or their designee shall notify promptly the appropriate local law enforcement agency when it is believed that any harassment, bullying or discrimination constitutes criminal conduct.

(5) The principal shall provide a regular report, at least once during each school year, on data and trends related to harassment, bullying, and/or discrimination to the superintendent.

(6) Pursuant to Education Law section 13, retaliation by any school employee or student shall be prohibited against any individual who, in good faith, reports or assists in the investigation of harassment, bullying, and/or discrimination.

For the 2013-2014 school year and for each succeeding school year thereafter, each school district, board of cooperative educational services (BOCES) and charter school shall submit to the Commissioner an annual report of material incidents of harassment, bullying and discrimination that occurred in such school year.

A school district, BOCES or charter school shall include in its annual report all material incidents of harassment, bullying and discrimination that:

(a) are the result of the investigation of a written or oral complaint made to the superintendent, principal, or their designee, or to any other employee; or

(b) are otherwise directly observed by such superintendent, principal or their designee, or by any other employee regardless of whether a complaint is made.

The report shall include information describing the specific nature of the incident, including, but not limited to:

(a) the type(s) of bias involved (actual or perceived race, color, weight, national origin, ethnic group, religion, religious practices, disability, sexual orientation, gender, sex or other). Where multiple types of bias are involved, they shall all be reported;

(b) whether the incident resulted from student and/or employee conduct;

(c) whether the incident involved physical contact and/or verbal threats, intimidation or abuse, including cyberbullying, and

(d) the location where the incident occurred (on school property and/or at a school function, or off school property, where applicable).

No school district, BOCES or charter school, or an employee thereof, shall take, request or cause a retaliatory action against any such person who, acting reasonably and in good faith, either makes such a report or initiates, testifies, participates or assists in such formal or informal proceedings. Retaliation by any school employee or student shall be prohibited against any individual, who, in good faith reports or assists in the investigation of harassment, bullying and/or discrimination.

Each school district, BOCES and charter school shall annually submit its report on material incidents of harassment, bullying and discrimination in a manner prescribed by the commissioner, on or before the basic educational data system (BEDS) reporting deadline or such other date as determined by the Commissioner.

3. PROFESSIONAL SERVICES:

The proposed amendment will not impose any additional professional services requirements.

4. COMPLIANCE COSTS:

The proposed amendment is necessary to implement Chapter 102 of the Laws of 2012 and will not impose any additional costs beyond those imposed by the statute.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any additional costs or technological requirements.

6. MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to implement, and otherwise conform the Commissioner's Regulations to, the reporting requirements of the Dignity Act, as amended by Chapter 102 of the Laws of 2012, and will not impose any additional compliance requirements or costs on school districts, BOCES and charter schools beyond those imposed by the statute. Because these statutory requirements specifically apply to school districts, BOCES and charter schools it is not possible to exempt them from the proposed rule's requirements or impose a lesser standard. The proposed amendment has been carefully drafted to meet statutory requirements and Regents policy while minimizing the impact on school districts, BOCES and charter schools.

7. LOCAL GOVERNMENT PARTICIPATION:

The proposed amendment was developed in cooperation with the Dignity Act Task Force State Policy Work Group which is comprised of other State agencies, the New York City Department of Education, and several not-for-profit organizations. Copies of the proposed amendment have been provided to District Superintendents with the request that they distribute them to school districts within their supervisory districts for review and comment. Copies were also provided for review and comment to the chief school officers of the five big city school districts and to charter schools.

8. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment merely implements, and conforms the Commissioner's Regulations to, statutory requirements under Chapter 102 of the Laws of 2012 and therefore the substantive provisions of the proposed amendment cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to all school districts and boards of cooperative educational services (BOCES) in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less. The proposed amendment also applies to charter schools. At present, there is one charter school in a rural area.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed amendment is necessary to conform the Commissioner's Regulations to, and to otherwise implement, Chapter 102 of the Laws of 2012, by establishing requirements for reporting incidents of harassment, bullying (including cyberbullying) and discrimination to school authorities and local law enforcement agencies, and for reporting material incidents of harassment, bullying/cyberbullying and discrimination to the Commissioner. The proposed amendment will not impose any additional compliance requirements on school districts, BOCES or charter schools beyond those imposed by the statute.

Consistent with Chapter 102, the proposed amendment revises the regulation to add provisions for reporting of incidents of harassment, bullying/cyberbullying and discrimination to the superintendent, principal, or their designee, including requirements that:

(1) School employees who witness harassment, bullying, and/or discrimination or receive an oral or written report of such acts shall promptly orally notify the principal, superintendent, or their designee not later than one school day after such employee witnesses or receives a report of such acts, and shall also file a written report with the principal, superintendent, or their designee no later than two school days after making an oral report.

(2) The principal, superintendent or the principal's or superintendent's designee shall lead or supervise the thorough investigation of all reports of harassment, bullying and/or discrimination, and ensure that such investigation is completed promptly after receipt of any written reports.

(3) When an investigation verifies a material incident of harassment, bullying, and/or discrimination, the superintendent, principal, or designee shall take prompt action, reasonably calculated to end the harassment, bullying, and/or discrimination, eliminate any hostile environment, create a more positive school culture and climate, prevent recurrence of the behavior, and ensure the safety of the student or students against whom such behavior was directed.

(4) The principal, superintendent, or their designee shall notify promptly the appropriate local law enforcement agency when it is believed that any harassment, bullying or discrimination constitutes criminal conduct.

(5) The principal shall provide a regular report, at least once during each school year, on data and trends related to harassment, bullying, and/or discrimination to the superintendent.

(6) Pursuant to Education Law section 13, retaliation by any school employee or student shall be prohibited against any individual who, in good faith, reports or assists in the investigation of harassment, bullying, and/or discrimination.

For the 2013-2014 school year and for each succeeding school year thereafter, each school district, board of cooperative educational services (BOCES) and charter school shall submit to the Commissioner an annual report of material incidents of harassment, bullying and discrimination that occurred in such school year.

A school district, BOCES or charter school shall include in its annual report all material incidents of harassment, bullying and discrimination that:

(a) are the result of the investigation of a written or oral complaint made to the superintendent, principal, or their designee, or to any other employee; or

(b) are otherwise directly observed by such superintendent, principal or their designee, or by any other employee regardless of whether a complaint is made.

The report shall include information describing the specific nature of the incident, including, but not limited to:

(a) the type(s) of bias involved (actual or perceived race, color, weight, national origin, ethnic group, religion, religious practices, disability, sexual orientation, gender, sex or other). Where multiple types of bias are involved, they shall all be reported;

(b) whether the incident resulted from student and/or employee conduct;

(c) whether the incident involved physical contact and/or verbal threats, intimidation or abuse, including cyberbullying, and

(d) the location where the incident occurred (on school property and/or at a school function, or off school property, where applicable).

No school district, BOCES or charter school, or an employee thereof, shall take, request or cause a retaliatory action against any such person who, acting reasonably and in good faith, either makes such a report or initiates, testifies, participates or assists in such formal or informal proceedings. Retaliation by any school employee or student shall be prohibited against any individual, who, in good faith reports or assists in the investigation of harassment, bullying and/or discrimination.

Each school district, BOCES and charter school shall annually submit its report on material incidents of harassment, bullying and discrimination in a manner prescribed by the commissioner, on or before the basic educational data system (BEDS) reporting deadline or such other date as determined by the Commissioner.

3. COSTS:

The proposed amendment is necessary to implement Chapter 102 of the Laws of 2012 and will not impose any additional costs on school districts, BOCES and charter schools in rural areas beyond those imposed by the statute.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to implement, and otherwise conform the Commissioner's Regulations to, the reporting requirements of the Dignity Act, as amended by Chapter 102 of the Laws of 2012, and will not impose any additional compliance requirements or costs on school districts, BOCES and charter schools beyond those imposed by the statute. Because these statutory requirements specifically apply to school districts, BOCES and charter schools it is not possible to exempt them from the proposed rule's requirements or impose a lesser standard. The proposed amendment has been carefully drafted to meet statutory requirements and Regents policy while minimizing the impact on school districts, BOCES and charter schools.

The statute which the proposed amendment implements applies to all school districts, BOCES and charter schools throughout the State, including those in rural areas. Therefore, it was not possible to establish different requirements for entities in rural areas, or to exempt them from the amendment's provisions.

5. RURAL AREA PARTICIPATION:

Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas. The proposed amendments were developed in cooperation with the Dignity Act Task Force State Policy Work Group which is comprised of other State agencies, the New York City Department of Education, and several not-for-profit organizations.

6. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment merely implements, and conforms the Commissioner's Regulations to, statutory requirements under Chapter 102 of the Laws of 2012 and therefore the substantive provisions of the proposed amendment cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.

Job Impact Statement

The proposed amendment relates to reporting requirements under the Dignity for All Students Act (L. 2010, Ch. 482) and is applicable to school districts, boards of cooperative educational services and charter schools. The proposed amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.