EDU-11-13-00017-A Policy, Procedures and Guidelines Prohibiting Harassment, Bullying (including Cyberbullying) and Discrimination Against Students

6/5/13 N.Y. St. Reg. EDU-11-13-00017-A

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 23

June 05, 2013

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

NOTICE OF ADOPTION

 

I.D No. EDU-11-13-00017-A

Filing No. 529

Filing Date. May. 21, 2013

Effective Date. Jun. 05, 2013

Policy, Procedures and Guidelines Prohibiting Harassment, Bullying (including Cyberbullying) and Discrimination Against Students

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(jj) of Title 8 NYCRR.

Statutory authority:

Education Law, sections 11(7) and (8), 12(1), 13(1-5), 14(1-5), 101(not subdivided), 207(not subdivided), 305(1) and (2) and 2854(1)(b); and L. 2012, ch. 102

Subject:

Policy, procedures and guidelines prohibiting harassment, bullying (including cyberbullying) and discrimination against students.

Purpose:

To implement the ch. 102, L. 2012 amendments to the Dignity for All Students Act.

Text of final rule:

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

(jj) Dignity [For All Students] Act Coordinator and School Employee Training Program.

(1) Definitions. As used in 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)(ii) 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 or 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.

(2) On or before July 1, [2012] 2013, each school district and each charter school shall establish policies, procedures and guidelines for its school or schools to implement, commencing with the [2012-2013] 2013-2014 school year and continuing in each school year thereafter, Dignity [for All Students] Act school employee training programs to promote a positive school environment that is free from [discrimination and] harassment, bullying and/or discrimination; and to discourage and respond to incidents of [discrimination and/or] harassment, bullying, and/or discrimination on school property or at a school function, or off school property pursuant to subclause (1)(viii)(c)(iii) of this subdivision. Such polices, procedures and guidelines shall be approved by the board of education, trustees or sole trustee of the school district (or by the chancellor of the city school district, in the case of the City School District of the City of New York) or by the board of trustees of the charter school.

(3) The polices, procedures and guidelines shall include, but not be limited to, guidelines relating to the development of nondiscriminatory instructional and counseling methods, and providing employees, including school and district administrators and instructional and non-instructional staff, with [(i)] training to:

(a) raise awareness and sensitivity to potential acts of [discrimination and/or] harassment, bullying, and/or discrimination directed at students that are committed by students and/or school employees on school property or at a school function, or off school property pursuant to subclause (1)(viii)(c)(iii) of this subdivision; including, but not limited to, [discrimination and/or] harassment, bullying, and/or 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. Such training shall address the social patterns of harassment, bullying and/or discrimination, the identification and mitigation of such acts, and strategies for effectively addressing problems of exclusion, bias and aggression in educational settings; [and]

(b) [training to] enable employees to prevent and respond to incidents of [discrimination and/or] harassment, bullying, and/or discrimination, consistent with Education Law section 13(4);

(c) make school employees aware of the effects of harassment, bullying, cyberbullying, and/or discrimination on students;

(d) ensure the effective implementation of school policy on school conduct and discipline, including but not limited to, guidelines on promoting a safe and supportive school climate while discouraging harassment, bullying, and/or discrimination against students by students and/or school employees; and

(e) include safe and supportive school climate concepts in curriculum and classroom management.

[(c)] (f) [such] Such training may be implemented and conducted in conjunction with existing professional development training pursuant to subparagraph 100.2(dd)(2)(ii) of this Title and/or with any other training for school employees[; and] .

[(ii) guidelines relating to the development of nondiscriminatory instructional and counseling methods.]

(4) At least one employee in every school shall be designated as a Dignity Act Coordinator [and] who shall be:

(i) instructed in the provisions of this subdivision [and];

(ii) thoroughly trained to handle human relations in the areas of race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, and sex;

(iii) provided with training which addresses the social patterns of harassment, bullying and discrimination, including but not limited to those acts based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, and sex;

(iv) provided with training in the identification and mitigation of harassment, bullying and discrimination; and

(v) provided with training in strategies for effectively addressing problems of exclusion, bias, and aggression in educational settings.

[(i)] (vi) The designation of each Dignity Act Coordinator shall be approved by the board of education, trustees or sole trustee of the school district (or in the case of the City School District of the City of New York, by the principal of the school in which the designated employee is employed) or, in the case of a charter school, by the board of trustees. Each Coordinator shall be employed by such school district, BOCES or charter school, as applicable, and be licensed and/or certified by the Commissioner as a classroom teacher, school counselor, school psychologist, school nurse, school social worker, school administrator or supervisor, or superintendent of schools.

[(ii)] (vii) The name(s) and contact information for the Dignity Act Coordinator(s) shall be shared with all school personnel, students, and persons in parental relation, which shall include, but is not limited to, providing the name, designated school, and contact information of each Dignity Act Coordinator by:

(a) listing such information in the code of conduct and updates posted on the Internet web site, if available, of the school or school district, or of the board of cooperative educational services, pursuant to subclause 100.2(l)(2)(iii)(b)(1) of this Part; provided that, notwithstanding the provisions of clause 100.2(l)(2)(iii)(a) of this Title, a change in the name and/or contact information of a Dignity Act Coordinator shall not be deemed to constitute a revision to the code of conduct so as to require a public hearing be held pursuant to such clause, and nothing herein shall be deemed to require such public hearing in such instance; and

(b) posting such information in highly-visible areas of school buildings; and

(c) making such information available at the district and school-level administrative offices; and either

[(b)] (d) including such information in the plain language summary of the code of conduct provided to all persons in parental relation to students before the beginning of each school year, pursuant to subclause 100.2(l)(2)(iii)(b)(3); or

[(c)] (e) providing such information to parents and persons in parental relation [in] at least [one] once per school year [district or school mailing or other method of distribution] in a manner as determined by the school, including, but not limited to, through electronic communication and/or sending such information home with [each student] students [and, if such information changes, in at least one subsequent district or school mailing or other such method of distribution as soon as practicable thereafter;].

[(d) posting such information in highly-visible areas of school buildings; and

(e) making such information available at the district and school-level administrative offices.]

[(iii)] (viii) In the event a Dignity Act Coordinator vacates his or her position, another [school] eligible employee shall be immediately designated for an interim appointment as Coordinator, pending approval of a successor Coordinator by the applicable governing body as set forth in subparagraph [(i)] (vi) of this paragraph within 30 days of the date the position was vacated. In the event a Coordinator is unable to perform the duties of his or her position for an extended period of time, another [school] eligible employee shall be immediately designated for an interim appointment as Coordinator, pending return of the previous Coordinator to his or her duties as Coordinator.

(5) 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.

Final rule as compared with last published rule:

Nonsubstantive changes were made in section 100.2(jj)(4).

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, [phone], email: [e-mail]

Revised Regulatory Impact Statement

Since publication of a Notice of Proposed Rule Making in the State Register on March 13, 2013, nonsubstantial revisions were made to the proposed rule as follows:

In section 100.2(jj)(4)(vi), the phrase "The Coordinator shall be employed. . ." was replaced with "Each Coordinator shall be employed. . ." for purposes of ensuring internal consistency with the language in subparagraph (vi), as well as ensuring consistency with the requirement in the introductory language to section 100.2(jj)(4) that at least one employee in every school shall be designated as a Dignity Act Coordinator.

The above change does not require any further changes to the previously published Regulatory Impact Statement.

Revised Regulatory Flexibility Analysis

Since publication of a Notice of Proposed Rule Making in the State Register on March 13, 2013, a nonsubstantial revision was made to the proposed rule as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The change does not require any further changes to the previously published Regulatory Flexibility Analysis.

Revised Rural Area Flexibility Analysis

Since publication of a Notice of Proposed Rule Making in the State Register on March 13, 2013, a nonsubstantial revision was made to the proposed rule as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The change does not require any further changes to the previously published Rural Area Flexibility Analysis.

Revised Job Impact Statement

Since publication of a Notice of Proposed Rule Making in the State Register on March 13, 2013, a nonsubstantial revision was made to the proposed rule as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The proposed amendment, as revised, is applicable to school districts, boards of cooperative educational services and charter schools and is necessary to implement the policies, procedures and guideline requirements of the Dignity for All Students Act, as amended by Chapter 102 of the Laws of 2012. 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 March 13, 2013, the State Education Department received the following comments:

1. COMMENT:

Small school districts should have flexibility to appoint one Dignity Act Coordinator instead of a Coordinator for each school. With increased responsibilities, due to shrinking staff size, it is difficult to assign one person responsibility as Coordinator. Having two Coordinators causes small districts to pay a stipend for this position to two people, as this is not a responsibility staff members are willing to do uncompensated; and to send two people to mandatory/recommended trainings. In addition, having two Coordinators may result in discrepancies related to two individuals interpreting and following school policy in their separate buildings. In small school districts one person can do this position very effectively.

DEPARTMENT RESPONSE:

The comment is beyond the scope of the rulemaking. The requirement in section 100.2(jj)(4) that at least one employee in every school shall be designated as a Coordinator has remained unchanged since its adoption by the Regents in 2012, and has not been proposed for amendment pursuant to this rulemaking. In any event, section 100.2(jj)(4) reflects the requirement in Education Law section 13(3) ". . . that at least one staff member at every school be thoroughly trained. . ." Therefore, it would require a change in statute before the Commissioner's Regulations could be amended to provide an exception for small school districts.

2. COMMENT:

Section 100.2(jj)(1), regarding definitions, repeats the same language in section 100.2(kk), which seems repetitious and likely to lead to future problems.

DEPARTMENT RESPONSE:

The comment appears to suggest that the definitions used in sections 100.2(jj) and 100.2(kk) be incorporated into a single definitions section. It would not be appropriate to combine the definitions into a single section because the training provisions and the reporting provisions are in two different subdivisions of section 100.2.

3. COMMENT:

Section 100.2(jj)(4)(vi) should be revised to replace "The Coordinator shall be employed. . ." with "Each Coordinator shall be employed. . ." because referring to "the Coordinator" may confuse some school districts that have multiple schools into thinking only one Coordinator is required.

DEPARTMENT RESPONSE:

The Department agrees and has made a nonsubstantial change to section 100.2(jj)(4)(vi) to refer to "Each Coordinator shall be employed. . ."

4. COMMENT:

The rule imposes licensing and certification requirements on charter school personnel that conflicts with the Charter Schools Act. Charter school administrators are not required to have traditional certification, and charter schools may, consistent with Education Law section 2854(3)(a-1), employ some uncertified teachers. A charter school must be able to select the staff member it feels is appropriate for Coordinator, whether or not that person is certified or licensed. The rule should be revised to exempt charter schools.

DEPARTMENT RESPONSE:

The Department disagrees. 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.

Education Law section 13, as amended by Chapter 102 of the Laws of 2012, imposes certain health, safety and civil rights requirements on public schools, including a requirement that such schools create guidelines relating to the development of nondiscriminatory instructional and counseling methods, and requiring at least one staff member at every school be thoroughly trained to handle human relations in the areas of race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender and sex;

Education Law section 14, as amended by Chapter 102 of the Laws of 2012, requires the Commissioner to provide direction, including model policies and, to the extent possible, direct services to school districts in preventing harassment, bullying and discrimination and fostering an environment in every school where all children can learn free of manifestations of bias. Section 14(3), as amended, authorizes the Commissioner to promulgate regulations to assist school districts in developing measured, balanced and age-appropriate response to violations of this policy, with remedies and procedures following a progressive model that makes appropriate use of intervention, discipline and education and provide guidance related to the application of regulations. Section 14(4), as added by Chapter 102, requires the Commissioner to provide guidance and educational materials to schools districts relating to best practices in addressing cyberbullying and helping families and communities work cooperatively with schools in addressing cyberbullying, whether on or off school property or at or away from a school function.

The requirement in section 100.2(jj)(4)(vi) that each Coordinator shall be licensed and/or certified by the Commissioner as a classroom teacher, school counselor, school psychologist, school nurse, school social worker, school administrator or supervisor, or superintendent of schools is consistent with the above statutory authority.

5. COMMENT:

Nothing in the law permits the Department to impose requirements on charter schools with respect to day-to-day curriculum development, instructional content, and/or classroom management. The rule should be revised to exempt charter schools.

DEPARTMENT RESPONSE:

The Department disagrees. 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. Education Law section 13, as amended by Chapter 102 of the Laws of 2012, requires school districts to create:

(1) policies and procedures to create a school environment that is free from harassment, bullying and discrimination;

(2) guidelines to be used in school training programs to discourage the development of harassment, bullying and discrimination, and to make school employees aware of the effects of harassment, bullying, cyberbullying and discrimination on students;

(3) guidelines relating to the development of nondiscriminatory instructional and counseling methods, and requiring at least one staff member at every school be thoroughly trained to handle human relations in the areas of race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender and sex;

(4) guidelines relating to the development of measured, balanced and age-appropriate responses to instances of harassment, bullying and discrimination by students with remedies and procedures following a progressive model that make appropriate use of intervention, discipline and education, vary in method according to the nature of the behavior, the developmental age of the student and the student's history of problem behaviors, and are consistent with the district's code of conduct; and

(5) training that addresses the social patterns of harassment, bullying and discrimination, including but not limited to those 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, the identification and mitigation of harassment, bullying and discrimination, and strategies for effectively addressing problems of exclusion, bias and aggression.

To the extent the rule imposes requirements relating to day-to-day curriculum development, instructional content, and/or classroom management, those requirements are necessary in order to implement and conform the Commissioner' s Regulations to the above statutory requirements.

6. COMMENT:

Schools should be permitted to designate a position (as opposed to a specific, named individual) to serve as Coordinator for each school, and the board of trustees should only be required to approve that position designation. A promotion or personnel change affecting this role would require the school to re-designate, obtain board approval within 30 days (which is not always possible, depending on timing of board meetings), and re-issue all documentation to parents with the updated name—a time-consuming and expensive proposition that could be alleviated by simply designating a position rather than an individual name.

DEPARTMENT RESPONSE:

The provisions in section 100.2(jj)(4) that at least one employee be designated as a Coordinator and the designation be approved by the board have remained unchanged since their adoption by the Regents in 2012, and have not been proposed for amendment pursuant to the current rule making. To that extent, the comment is beyond the scope of this rulemaking.

Regardless, boards of education are legally responsible for ensuring that the Dignity Act statute and rules are implemented to ensure safe and supportive environments. Since the Act applies to student-to-student behaviors, employee-to-student behaviors and student and employee to student behaviors, approving the specific individuals designated as the Coordinator in each school is a critical element to ensuring that the Act’s integration into the overall school environment will be timely and objective. This provision is necessary to ensure that one or more specifically designated individuals act as Coordinator at all times, and that the board of education, BOCES or governing body of the charter school are directly involved in the delegation of individual(s) as Coordinator in order to elevate the standing of the position and to make it clear that this is an important and necessary position.

7. COMMENT:

Schools should not be required to list specific, individual names or contact information in a code of conduct, any summary of a code of conduct, or any equivalent document, or to post this information throughout the school building. Mailing is not an effective manner of disseminating this information, as the mailed notice is a one-time notice that will likely be quickly discarded and forgotten. Instead, schools should be permitted to disseminate the information in a widely distributed bullying policy, with the name and contact information of the position explicitly and clearly listed. Provision of information on websites should be optional, or required only to the extent that detailed personnel and HR matters are included on the website. Schools should not be required to disseminate contact information prior to the start of the school year; instead, the information should be disseminated at or around the start of the school year.

DEPARTMENT RESPONSE:

The provision in section 100.2(jj)(4)(vii)(d) that the name and contact information of the Coordinator(s) be included in the plain language summary of the code of conduct has remained unchanged since its adoption by the Regents in 2012, and has not been proposed for amendment pursuant to the current pending rule making and is therefore beyond the scope of this proposed amendment. Furthermore, to the extent the comment addresses requirements in the code of conduct itself, such requirements were part of a separate rule making specifically relating to the code of conduct (EDU-07-13-00013-P) and are therefore beyond the scope of this proposed amendment.

The provision requiring schools to provide Coordinator contact information in at least one per school year district mailing or other method of distribution has been deleted in the proposed amendment and replaced with a requirement that such information be provided at least once per school year in a manner as determined by the school, including but not limited to electronic communication and/or sending the information home with students.

Communication between students, parents, persons in parental relation, teachers, administrators, other educational professionals/school employees, and the Coordinator is essential. Posting the name and contact information of the Coordinator by various means as set forth in section 100.2(jj)(4)(vii) will promote the importance of the Dignity Act on a daily basis, remind students and the rest of the school community who the Coordinator is, and encourage communication and interaction related to the Act between all school building occupants and the school community. It will also ensure greater school community awareness of this vital information than mere inclusion of name(s) and contact information in a bullying policy, which would only serve to reference the existence of the Coordinator rather than proactively promoting the Coordinator's availability in the school. Requiring a wide and varying means of disseminating this contact information elevates the importance of the Coordinator and the requirements of the Dignity Act. Finally, since the official start of the school year is July 1st and the official end of the school year is June 30th, requiring Coordinators to be designated in each school by September is not unreasonable.