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

  • 5/8/13 N.Y. St. Reg. EDU-07-13-00014-A
    NEW YORK STATE REGISTER
    VOLUME XXXV, ISSUE 19
    May 08, 2013
    RULE MAKING ACTIVITIES
    EDUCATION DEPARTMENT
    NOTICE OF ADOPTION
     
    I.D No. EDU-07-13-00014-A
    Filing No. 425
    Filing Date. Apr. 23, 2013
    Effective Date. Jul. 01, 2013
    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 action:
    Action taken:
    Amendment of section 100.2(kk) of Title 8 NYCRR.
    Statutory authority:
    Education Law, sections 11(7), (8), 13(1), 15(not subdivided), 16(not subdivided), 101(not subdivided), 207(not subdivided), 305(1), (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 final rule:
    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.
    (iv) 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.
    (v) 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.
    (vi) 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.
    Final rule as compared with last published rule:
    Nonsubstantive changes were made in section 100.2(kk)(2) and (3).
    Text of 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, (518) 474-6400, email: legal@mail.nysed.gov
    Revised Regulatory Impact Statement
    Since publication of a Notice of Proposed Rule Making in the State Register on February 13, 2013, nonsubstantial revisions were made to the proposed rule as follows.
    In paragraph 100.2(kk)(2), the proposed rule included two subparagraphs that were both labeled as (iii). The second subparagraph (iii) has been relabeled (iv), and the subsequent subparagraphs (iv) and (v) have been relabeled (v) and (vi).
    In clause 100.2(kk)(3)(iii)(c), the term “verbal” was deleted in order to ensure terminological consistency with clause 100.2(kk)(1)(viii)(d).
    The above revisions require that the Paperwork section in the previously published Regulatory Impact Statement be revised to read as follows:
    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 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.
    Revised Regulatory Flexibility Analysis
    Since publication of a Notice of Proposed Rule Making in the State Register on February 13, 2013, nonsubstantial revisions were made to the proposed rule as set forth in the Revised Regulatory Impact Statement submitted herewith.
    The changes require that the Compliance Requirement section of the previously published Regulatory Flexibility Analysis be revised as follows:
    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 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.
    Revised Rural Area Flexibility Analysis
    Since publication of a Notice of Proposed Rule Making in the State Register on February 13, 2013, nonsubstantial revisions were made to the proposed rule as set forth in the Revised Regulatory Impact Statement submitted herewith.
    The changes require that the Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services section of the previously published Rural Area Flexibility Analysis be revised to read as follows:
    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 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.
    Revised Job Impact Statement
    Since publication of a Notice of Proposed Rule Making in the State Register on February 13, 2013, nonsubstantial revisions were made to the proposed rule as set forth in the Revised Regulatory Impact Statement submitted herewith.
    The proposed amendment, as so revised, 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 revised amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed revised 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.
    Initial Review of Rule
    As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is the 4th or 5th year after the year in which this rule is being adopted. This review period, justification for proposing same, and invitation for public comment thereon, were contained in a RFA, RAFA or JIS:
    Assessment of Public Comment
    Since publication of a Notice of Proposed Rule Making in the State Register on February 13, 2013, the State Education Department received the following comments.
    1. COMMENT:
    The definition of "discrimination" in section 100.2(kk)(1)(vii) is inadequate and should be improved.
    DEPARTMENT RESPONSE:
    The comment is beyond the scope of the proposed amendment. The discrimination definition in section 100.2(kk)(1)(vii) has remained unchanged since its adoption by the Board of Regents in 2012, and has not been proposed for amendment pursuant to the current pending rule making.
    The purpose of the proposed amendment is to conform the Commissioner's Regulations to, and otherwise implement, the reporting requirements of the Dignity for All Students Act (L.2010, Ch 482 - "Dignity Act"), as amended by Chapter 102 of the Laws of 2012. 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.
    2. COMMENT:
    There is a mislabeling in section 100.2(kk)(2), consisting of two subparagraphs both being labeled (iii).
    DEPARTMENT RESPONSE:
    Nonsubstantial changes have been made to section 100.2(kk)(2) to correct the mislabeling.
    3. COMMENT:
    Section 100.2(kk)(3)(ii)(a) should be revised to indicate that the incidents being reported have been verified as the result of the investigation.
    DEPARTMENT RESPONSE:
    Section 100.2(kk)(3)(ii) relates to the reporting of material incidents of harassment, bullying and/or discrimination to the Commissioner. Section 100.2(kk)(1)(ix) defines a “material incident of harassment, bullying, and/or discrimination” as a “single verified incident or a series of related verified incidents. . . [emphasis added]." Therefore, there is no need to restate “verified” elsewhere in the rule.
    4. COMMENT:
    The provision in section 100.2(kk)(3)(b) that requires reporting of material incidents of harassment, bullying and/or discrimination that "are otherwise directly observed by such superintendent, principal or their designee, or by any other employee regardless of whether a complaint is made" is problematic because if they observed such incidents, they are required to make a written report (which seems to mean the same thing as filing a complaint); and even if such incidents were directly observed, wouldn't an investigation still be necessary to ensure they perceived the incident correctly and that the incident was indeed a "material" incident?
    DEPARTMENT RESPONSE:
    The comment appears to reflect confusion about the differences in reporting requirements at the local level versus the State level. Education Law § 13 contains various reporting requirements and each of these reporting requirements have their own sets of obligations. Education Law § 13(1)(c) requires school employees who witness harassment, bullying or discrimination, or receive an oral or written report of harassment, bullying or discrimination, to promptly orally notify the principal, superintendent or the principal's or superintendent's designee not later than one day after such school employee witnesses or receives a report of harassment, bullying or discrimination and to file a written report with the principal, superintendent or the principal's or superintendent's designee not later than two days after making such report. This provision does not contain the word "verified" and, thus, the statute requires the reporting of all incidents at this stage of the process regardless of whether the incident has been "verified as the result of an investigation" as the comment is proposing here. Proposed 8 NYCRR § 100.2(kk)(2)(i) and (ii) implement these statutory requirements.
    Education Law § 13(1)(d) then requires the principal, superintendent or the principal or superintendent's designee to lead or supervise the thorough investigation of all reports of harassment, bullying and discrimination, and to ensure that such investigation is completed promptly after receipt of any written reports made under this section. This provision also does not contain the word "verified." Proposed 8 NYCRR § 100.2(kk)(2)(iii) implements these statutory requirements.
    Education Law § 13(1)(e) requires the school, when an investigation reveals any such verified harassment, bullying or discrimination, to take prompt actions reasonably calculated to end the harassment, bullying or discrimination, eliminate any hostile environment, create a more positive school culture and climate, prevent reoccurrence of the behavior, and ensure the safety of the student or students against whom such harassment, bullying or discrimination was directed. This is the first time the words "verified" and "investigation" are used together in this section of the Dignity statute. Pursuant to this statutory provision, schools are required to take certain actions only after an investigation verifies that an incident of harassment, bullying or discrimination has occurred. Proposed 8 NYCRR § 100.2(kk)(2)(iv) implements these statutory requirements.
    Pursuant to the definition of "material incidents of harassment, bullying and/or discrimination" in section 100.2(kk)(1)(ix), only those directly-observed incidents that are verified through investigation are required to be reported to the Commissioner of Education pursuant to 100.2(kk)(3).
    5. COMMENT:
    There needs to be resolution of the apparent inconsistency between the VADIR system, which requires school districts to report in item 20 incidents of bullying and harassment that haven't necessarily been founded, and the Dignity Act reporting system, which requires reporting of verified incidents of harassment, bullying and/or discrimination.
    DEPARTMENT RESPONSE:
    The comment is beyond the scope of the proposed rule making, the purpose of which is to conform the Commissioner's Regulations to, and otherwise implement, the reporting requirements of the Dignity for All Students Act (L.2010, Ch 482 - "Dignity Act"), as amended by Chapter 102 of the Laws of 2012. 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.
    In any event, the resolution of any perceived inconsistency between the VADIR and Dignity Act reporting systems would be more appropriately addressed in guidance than in regulation. Although the intent of VADIR and the Dignity Act are related to each other in some ways, their requirements, including, but not limited to, reporting requirements, and definitions are separate and distinct from one another. Thus, the Department determined that, due to these differences, the Dignity Act’s reporting system should be separate and distinct from the VADIR system.
    6. COMMENT:
    Section 100.2(kk)(3)(iii)(a) of the proposed rule continues to be a concern. Asking school districts to report by the type of bias involved in such detail will generate data that isn’t meaningful. The differences between race, color, national origin, and ethnic group are difficult to recognize. It would make more sense to collapse the twelve reporting categories into six: (1) race – ethnicity – national origin; (2) religion – religious practice; (3) weight; (4) disability; (5) sex – gender – sexual orientation; and (6) other. In addition the proposed rule doesn’t indicate who determines the category (the complainant, the investigator, or the Dignity Act Coordinator).
    DEPARTMENT RESPONSE:
    Section 15 of the Dignity Act statue, 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 are reported to the Department on at least an annual basis, and further provides that “[s]uch procedure shall provide that such reports shall, whenever possible, also delineate the specific nature of such incidents of harassment, bullying and discrimination. . .” Combining the categories specified in the statute will contradict the intent of this section, which is to define the underlying basis for material incidents of harassment, bullying, and/or discrimination. It is the responsibility of the school district submitting the report to the Department to determine whether an incident involves one or more of the specified categories. The Department has issued guidance that provides some definitions for these terms that the school district can use to determine what category or categories and incident should be reported in.
    7. COMMENT:
    The proposed rule does not make clear that schools will need to make reports that include information describing the specific nature of incidents of discrimination and harassment, including the type of bias involved (including multiple forms of bias), whether the incident resulted from student or employee conduct, the nature of the incident, and the location of the incident. School districts will need to make a report once per year, however the guidance and reporting mechanism should provide schools with the ability to conduct a real time analysis of data collected about their school climate.
    DEPARTMENT RESPONSE:
    The Department disagrees. Since its adoption in 2012, section 100.2(kk)(3)(iii) has required the annual report to the Department to include information describing the specific nature of incidents including: (a) the type(s) of bias involved (including multiple types of bias); (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; and (d) the location where the incident occurred. Furthermore, in order to conform the regulation to Chapter 102 of the Laws of 2012, the proposed amendment would also require reporting of cyberbullying and, where applicable, incidents occurring off school property.
    The exact method used within a school district to record data in real time is a local decision. However, the proposed amendment does require the principal to provide a regular report on data and trends related to harassment, bullying, and/or discrimination to the superintendent of schools.
    8. COMMENT:
    The proposed amendment would impose additional burdensome administrative requirements on charter schools. Charter schools should be exempt from reporting requirements under Sections 100.2(kk)(2)(i)-(ii); 100.2(kk)(2)(v); and 100.2(kk)(3) for the following reasons: No duplicative obligation to report both verbally and in writing should be imposed on school staff; it is unreasonable to provide a written report prior to an investigation; and SED lacks the authority to dictate who at a charter school is required to take on administrative burdens such as report writing. No written reporting requirements reside with our instructional staff.
    DEPARTMENT RESPONSE:
    The citations noted reflect the language and requirements in the statute, which require school employees who witness harassment, bullying or discrimination, or receive an oral or written report of such conduct, to promptly orally, notify the principal, superintendent or designee and file a written report [Education Law § 13(1)(c)]; require the principal, superintendent or designee to notify promptly the appropriate law enforcement agency when it is believed that any harassment, bullying or discrimination constitutes criminal conduct [Education Law § 13(1)(i)]; and require the annual reporting of material incidents of harassment, bullying and/or discrimination (Education Law § 15). In addition, Education Law § 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. The Dignity Act imposes certain health, safety and civil rights requirements on public schools. The Department lacks authority to revise statutory requirements and/or exempt charter schools from these requirements.

Document Information

Effective Date:
7/1/2013
Publish Date:
05/08/2013