The Massachusetts Anti-Bullying Statute and Public School Liability

image_pdf

The Massachusetts Anti-Bullying Statute and Public School Liability

On May 3, 2010, Governor Deval Patrick signed into law the Massachusetts Anti-Bullying Statute. The bulk of this law’s provisions have been codified in Chapter 71 §§ 37H & 37O. This highly publicized legislation, under consideration in various forms for quite some time, was passed in the aftermath of recent suicides of students in South Hadley and Springfield who were alleged victims of school bullying. Massachusetts is now one of 43 states with some form of anti-bullying legislation. The law imposes various administrative requirements which, in turn, raise concerns about potential claims against public school officials. Prior to exploring this impact, it is helpful to briefly describe the content of the legislation.

Under the law, two types of conduct are prohibited in public schools: Bullying or retaliation against a person reporting bullying or assisting bullying investigations In addition to these prohibitions, the Anti-Bullying statute also amended several criminal laws, such as the crimes of Stalking (Mass. Gen. L. ch. 265 § 43), Criminal Harassment (Mass. Gen. L. ch. 265 § 43A); Intimidation of Witnesses (Mass. Gen. L. ch. 268 § 13B); and Annoying Telephone Calls (Mass. Gen. L. ch. 269 § 14A) to encompass conduct falling within the definition of “bullying,” and its subcategory of “cyber-bullying.” School officials should also be aware that a separate law passed in February 2010 authorizes State courts to issue “Harassment Prevention Orders” in the form of civil restraining orders upon a showing of “harassment” consisting of “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property.” See Mass. Gen. L. Chapter 258E. There are criminal penalties for violating such orders. Unlike the more familiar Chapter 209A restraining orders, these “Harassment Prevention Orders” are not restricted to family members or household members.

The new statute broadly defines Bullying as:

  • the repeated use by students of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that
  • causes physical or emotional harm or property damage; or
  • places the victim in reasonable fear of harm or damage to his property; or
  • creates a “hostile environment” for the victim; or
  • infringes on the rights of the victim at school; or
  • materially and substantially disrupts the education process or orderly operation of the School.

The statute includes Cyber-bullying within this definition, which itself is defined as:“bullying through the use of technology or any electronic communication.” The law then provides a non-exhaustive list of examples of such communications:

  • any transfer of signs, signals, writing, images, … including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications;
  • the creation of a web page or blog in which the creator assumes the identity of another person;
  • the knowing impersonation of another person as the author of posted content or messages, if the creation or impersonation creates any of the conditions proscribed in the definition of bullying;
  • the distribution of electronic communications to more than one person or the posting of material on an electronic medium that may be accessed by one or more persons, if the distribution or posting creates any of the conditions proscribed in the definition of bullying.

The law then prohibits bullying both inside and outside school property. The prohibition thus applies to conduct:

  • on school grounds; or
  • property immediately adjacent to school grounds; or
  • at a school-sponsored or school-related activity, function or program at any location; or
  • at a school bus stop; or
  • on a school bus or other vehicle owned, leased or used by a school; or
  • through the use of technology or device owned, leased or used by a school; or
  • at any other location or using non-school owned technology if the bullying creates a hostile environment at school for the victim, infringes on the rights of the victim at school or materially and substantially disrupts the education process or the orderly operation of a school.

School administrators should consult with their legal counsel in order to comply with the new law. Briefly stated, the Act imposes a number of affirmative obligations upon public Schools to prevent bullying, which must be in place by December 31, 2010, as follows:

  • Anti-Bullying Plan: each school shall develop, adhere to and update a plan to address bullying prevention and intervention.
  • Professional Development: All school employees, from custodians to administrators, must participate in a program of professional development to build the skills to prevent, identify and respond to bullying,
  • Reporting: All school employees must report bullying or retaliation.
  • Investigating and discipline: The Principal or designee shall promptly conduct an investigation of reported bullying and take appropriate disciplinary action.
  • Notifications: A school must notify the parents and guardians of both the perpetrator and victim of bullying (to the extent permitted by law governing confidentiality of student records); must notify local law enforcement of any potential criminal conduct; notify other school administrators if other schools are involved; annually notify staff of the bullying prevention plan.
  • Promulgate policies: Internet Safety policy is required.
  • Special Education: If an IEP team determines a student is vulnerable to bullying, the IEP must address skills and proficiencies to avoid and respond to bullying.

IMPACT ON PUBLIC SCHOOL LIABILITY:

The key provision in the law for purposes of school liability is the following passage, G.L. ch. 71 § 37O(i):

“Nothing in this section shall supersede or replace existing rights or remedies under any other general or special law, nor shall this section create a private right of action.”

Thus, there is no new civil cause of action solely for violating the obligation under the anti-bullying statute. Nonetheless, despite this provision, the new duties created on school officials may be looked at by potential litigants as a basis for claims under pre-existing common law legal theories such as negligent supervision, negligent hiring or retention, or alternative theories.

The scope of a public school’s anti-bullying duties may be broad, but they are not without limit. Although the law prohibits activity which may take place outside of the school property or school activities, the law does not create an affirmative obligations to police the entire universe of student conduct: “Nothing contained herein shall require schools to staff any non-school related activities, functions, or programs.” See G.L. ch. 71 § 37O(b). Despite these new obligations to prevent bullying, schools arguably retain their immunities from liability found under the Massachusetts Tort Claims Act, Mass. Gen. L. ch. 258.

 – John J. Cloherty III