Senate Bill S1987B

                                 BILL NUMBER:  S1987

 TITLE OF BILL :
An act to amend the education law, in relation to enacting the dignity
for all students act


 PURPOSE OR GENERAL IDEA OF BILL :
The purpose of this bill is to afford all persons in public schools an
environment free of harassment and discrimination based on actual or
perceived race, weight, national origin,- ethnic group, religion,
disability, sexual orientation, gender, or sex.

 SUMMARY OF SPECIFIC PROVISIONS :

Section one of the bill establishes its short title, the dignity for
all students act.

Section 2 of the bill amends the Education Law by adding a new article
2 entitled "Dignity for all Students." New article 2 sets forth the
legislative intent in section 10, and sets forth definitions in
section 11, The definition of "harassment" in section 11(7) was
carefully drafted to ensure that this legislation protects children
against harassment in a manner that is consistent with the First
Amendment protections of speech and expression. Harassment is defined
as "creation of a hostile environment by conduct or by verbal threats,
              

intimidation or abuse". That content-neutral definition is followed by
a non-exclusive list of protected classes whose members are often the
targets of the type of harassment the bill seeks to prevent. The
purpose of listing these protected classes is to provide examples of
the types of status-based harassment frequently encountered by
students without in any way limiting the application of the definition
to individuals in those classes.

In order to constitute harassment, as defined in this bill, the
proscribed conduct, verbal threats, intimidation or abuse must be such
that it "has or would have the effect of unreasonably and
substantially interfering with a student's educational performance,
opportunities or benefits, or mental, emotional or physical
well-being;...". This additional requirement adds an objective
reasonableness standard and, consistent with First Amendment case law,
provides that the interference must be substantial; creation of
substantial interference with educational performance, etc. means that
the conduct or verbal behavior must be of a sufficient severity or
pervasiveness to rise to that level.

Section 12 prohibits discrimination and harassment against, students,
administrators and staff in public schools on the basis of actual or
perceived race, weight, national origin, ethnic group, religion,
mental or physical disability, sexual orientation, gender, or sex in
any activity occurring on school grounds and any activity conducted by
the educational institution or its agents. The amendments to new
section 12 in the A~print are intended to clarify that the Dignity for
All Students Act is not intended to contravene or override existing
provisions of law, including but not limited to the Education
Commissioner's regulations, regarding single gender schools and
athletic teams.

Sections 13 and 14 of new article 2 respectively provide for the
policies and guidelines to be established by school districts, and the
State Education Commissioner's responsibilities. This part of the bill
requires school districts to develop procedures which create a school
environment free of discrimination and harassment and to establish
guidelines for training school personnel. School districts must also
establish guidelines for development of nondiscriminatory
instructional and counseling methods and require that at least one
member of each school's staff be trained to handle human relations in
the areas in which discrimination and harassment are prohibited. The
Commissioner of Education is to provide advice, which may include
model policies, and direct services, to the extent possible, to help
districts prevent discrimination and harassment. The commissioner will
also provide grants, from funds appropriated for such purpose, to
local school districts to assist them in implementing the guidelines
provided for by the bill.

Section 15 of new Education Law article 2 requires the commissioner to
create a procedure whereby material incidents of discrimination and
harassment on school grounds or at school functions are reported to
the State Education Department at least annually. The amendments in
the A-print clarify that the commissioner may use the existing UVIR
(uniform violent incident reporting) system for this purpose; however,
the UVIR system will have to be adapted so that it will include
information about the specific nature of the incident, i.e., the type
or types of bias involved in a reported incident of harassment or
discrimination, including the possibility that multiple types of bias
could be involved in a single incident and all of the types of bias
involved should be reported.

Sections 16, 17 and 18 of new Education Law article 2 respectively
provide for protection of people who report incidents of
discrimination or harassment, applicability with respect to certain
institutions and other laws, and severability and construction.

Section 3 of the bill amends section 801-a of the education law by
requiring sensitivity to the harassment or discrimination prohibited
by section 2 of this bill to be incorporated into the civility and
character training currently required by section 801-a of the
education law.

Section 4 of the bill amends section 2801 of the education law by
adding a new paragraph n. Section 5 of the bill provides that the bill
will take effect 120 days after enactment.

 JUSTIFICATION :
All students need a safe, welcoming and affirming environment in
school in order to concentrate on their academic and personal growth.
They should never have to be preoccupied by the threat or actual
occurrence of harassment or discrimination, be it verbal or physical,
either from school employees or fellow students.  The Dignity for All
Students Act promotes civility among students and between students and
teachers. It will also help create an atmosphere where learning is
paramount and distractions to learning are minimized.

Moreover, the Act provides a response to the large numbers of harassed
and stigmatized students skipping school and engaging in high risk
behaviors like drug use, alcohol abuse, and perhaps even suicide. No
child or teen should ever be pushed to such extremes because of an
intolerable environment in his or her school. By prohibiting
harassment in public schools and establishing the procedures called
for by the bill, the "Dignity for All students Act" takes a major step
in creating more nurturing environments in all our schools.

The continuing need for this legislation is apparent from recent data
demonstrating the prevalence of bias-based harassment in New York
schools. A survey commissioned by the Gay, Lesbian and Straight
Education Network (GLSEN) found that more than one-third (39%) of New
York students reported that bullying, name-calling, and harassment is
a serious problem in school. Students were asked about the frequency
of witnessing other students bullied, called names, or harassed in
school.  From Teasing to Torment: A Report on School Climate in New
York (GLSEN 2005), at p. 8. The most commonly reported harassment was
based on physical appearance. Sixty-six percent (66%) of students
reported that people at school were harassed at least sometimes
because of their looks or body size, with 38% reporting that this
happened often or very often.  Id. Bullying and harassment based on
how a person expressed their gender, or because of their actual or
perceived sexual orientation was also very common. Fifty seven percent
of respondents reported that students were bullied or harassed at
least sometimes because of the way they expressed their gender, and
about a quarter (23%) said these behaviors occurred often or very
often. Id. More than five out of ten (52%) reported that students were
harassed because they were or were perceived to be lesbian, gay, or
bisexual, id., even as only 5% identified as being so. Id. at 2. About
a quarter (24%) said these behaviors occurred often or very often. Id.
at 8.

 PRIOR LEGISLATIVE HISTORY :
A3496-A/S.1571 (passed Assembly 2007 and 2008); A.9491/S.1454 (2006),
passed Assembly; A.4963/S.1454 (2005), passed Assembly; A.1118/S.1925
(2003-04) passed Assembly 2003 and 2004; A.2634-A/S.1628-A (2001-02)
passed Assembly 2002; A.9244-A/S.5775-A (2000)

 FISCAL IMPLICATIONS :
Minimal.

 EFFECTIVE DATE :
This act shall take effect 120 days after enactment.

                                 BILL NUMBER:  S1987A


 PURPOSE OR GENERAL IDEA OF BILL :
The purpose of this bill is to afford all students an environment free
of any harassment that substantially interferes with their education,
regardless of the basis of the harassment, and free of discrimination
based on actual or perceived race, color, weight, national origin,
ethnic group, religion, disability, sexual orientation, gender, or
sex.

 SUMMARY OF SPECIFIC PROVISIONS :
Section one of the bill establishes its short title, the Dignity for
all Students Act.

Section 2 of the bill amends the Education Law by adding a new article
2 entitled "Dignity for all Students." New article 2 sets forth the
legislative intent in section 10, and sets forth definitions in
section 11. The definition of "harassment" in section 11 (7) was
carefully drafted to ensure that this legislation protects children
against harassment in a manner that is consistent with the First
Amendment protections of speech and expression. See Tinker v. Des
Moines School District, 393 U.S. 503 (1969) and its progeny. In
addition, by moving the list of protected classes to the end of the
definition, and by adding the phrase "not limited to" at the beginning
of the list, the amendment made in the B-print explicitly establishes,
              

in the bill text itself, that the list is non-exclusive and that the
definition is content neutral.

Harassment is defined as "creation of a hostile environment by conduct
or by verbal threats, intimidation or abuse that has or would have the
effect of unreasonably and substantially interfering with a student's
educational performance, opportunities or benefits, or mental,
emotional or physical well-being;...". Education Law §11(7), as
proposed in this bill. The definition includes an objective
reasonableness standard and, consistent with Tinker and the cases
decided after Tinker, it also provides that speech (e.g., the verbal
threats included in the definition) becomes harassment only when it
does, or foreseeably would, substantially interfere with a student's
education. It is also the legislative intent that, consistent with the
hostile environment case law developed in the employment context,
conduct or verbal behavior must be severe or pervasive in order to
substantially interfere with educational performance, opportunities,
etc. and to therefore be harassment under this definition, This
content-neutral definition is followed by a non-exclusive list of
protected classes whose members are often the targets of the type of
harassment the bill seeks to prevent. The purpose of listing these
protected classes is to provide examples of the types of status-based
harassment frequently encountered by students without in any way
limiting the application of the definition to individuals in those
classes.

Section 12 prohibits harassment, as defined in section 11(7) and
discussed above, and it also prohibits discrimination on the basis of
actual or perceived race, color, weight, national origin, ethnic
group, religion, religious practice, disability, sexual orientation,
gender, or sex in any activity occurring on school grounds or at a
school function. New section 12 includes language intended to make
clear that the Dignity for All Students Act does not contravene or
override existing provisions of law, including but not limited to the
Education Commissioner's regulations, regarding single gender schools
and athletic teams.

Sections 13 and 14 of new article 2 respectively provide for the
policies and guidelines to be established by school districts, and the
State Education Commissioner's responsibilities. This part of the bill
requires school districts to develop procedures which create a school
environment free of discrimination and harassment and to establish
guidelines for training school personnel. School districts must also
establish guidelines for development of nondiscriminatory
instructional and counseling methods and require that at least one
member of each school's staff be trained to handle human relations in
the areas in which discrimination and harassment are prohibited. The
Commissioner of Education is to provide advice, which may include
model policies, and direct services, to the extent possible, to help
districts prevent discrimination and harassment. The commissioner will
also provide grants, from funds appropriated for such purpose, to
local school districts to assist them in implementing the guidelines
provided for by the bill.

Section 15 of new Education Law article 2 requires the commissioner to
create a procedure whereby material incidents of discrimination and
harassment on school grounds or at school functions are reported to
the State Education Department at least annually. The commissioner may
use the existing UVIR (uniform violent incident reporting) system for
this purpose; however, it is the legislative intent that the UVIR
system will be adapted to include information about the specific
nature of the incident, i.e., the type or types of bias involved in a
reported incident of harassment or discrimination, including the
possibility that multiple types of bias could be involved in a single
incident, and all of the types of bias involved should be reported.

Section 16 of new Education Law article 2 provides protection for
people who report incidents of discrimination or harassment. Section
17 provides for applicability of the new article with respect to
certain institutions and other laws, and section 18 provides for
severability and construction.

Section 3 of the bill amends section 801-a of the education law by
requiring sensitivity to the harassment or discrimination prohibited
by section 2 of this bill to be incorporated into the civility and
character training currently required by section 801-a of the
education law.

Section 4 of the bill amends section 2801 of the education law by
adding a new paragraph n. Section 5 of the bill provides that the bill
will take effect 120 days after enactment.

The B-print revises the harassment definition by moving the
non-exclusive list of protected classes from the middle of the
definition to the end of the definition, and by adding the phrase "not
limited to" at the beginning of the list. This change clarifies the
consistently expressed legislative intent that the list is
non-exclusive and that the definition is content neutral. The B-print
also makes a conforming change in proposed new Education Law § 10, by
removing the list of protected classes and simply stating the broad
legislative intent to provide a school environment free of
discrimination and harassment. There are no other changes in the
B-print.

 JUSTIFICATION :
In deciding First Amendment cases in school settings, courts have
recognized "the special need to maintain a safe, secure and effective
learning environment," Harper v. Poway Unified School, 445 F .3d 1166
at 1176 (9th Cir. 2006), citing Tinker v. Des Moines School District,
393 U.S. 503 (1969). Students need such a safe, welcoming and
supportive school environment so that they can concentrate on their
academic and personal growth, and they should never have to be
preoccupied by the threat or actual occurrence of harassment or
discrimination at school. The Dignity for All Students Act promotes
civility among students and between students and teachers. It will

also help create an atmosphere where learning is paramount and
distractions to learning are minimized.

Moreover, the Act provides a response to the large numbers of harassed
and stigmatized students skipping school and engaging in high risk
behaviors like drug use, alcohol abuse, and perhaps even suicide. No
child or teen should ever be pushed to such extremes because of an
intolerable environment in his or her school. Scholarly literature and
common sense establish that harassment and intimidation interfere with
students' ability to learn. By prohibiting harassment in public
schools and establishing the basis for proactive measures such as
training and model policies, the "Dignity for All Students Act" takes
a major step in creating more nurturing environments in all our
schools.

A 2008 review of existing literature, that also analyzed 1993-94 data
from a large urban school district, noted that bullying victimization
is estimated to affect 15-20% of the U.S. student population. The
authors defined bullying to include threats, intimidation and other
conduct, and concluded it was the most common form of "low level"
school violence. Meyer-Adams, N. & Conner, B.T., "School violence:
Bullying behavior and the Psychosocial School Environment in Middle
Schools," Children & Schools, Vol. 30, No.4 (October 2008). The
negative effects of bullying include increased truancy and dropout
rates as well as negative psychosocial effects such as depression,
etc. Id. at p. 212. Verbal teasing and intimidation are the most
common form of bullying. Dupper, D.R. & Meyer-Adams, N., "Low-level
violence: A neglected aspect of school culture," Urban Education, Vol.
37, No.3 at p. 351 (2002). A 1992 study found that 88% of secondary
school students reported having observed bullying and 76.8% stated
they had been victims. Id. In addition to the negative effects
discussed above, bullying victims' grades may suffer and even "good
kids" may be pushed into starting fights. Id.  at 352. There is also
harm to those who witness peer harassment. lQ.

The continuing need for this legislation is apparent from recent data
demonstrating the prevalence of bias-based harassment in New York
schools. A survey commissioned by the Gay, Lesbian and Straight
Education Network (GLSEN) found that more than one-third (39%) of New
York students reported that bullying, name·calling, and harassment is
a serious problem in school. Students were asked about the frequency
of witnessing other students bullied, called names, or harassed in
school. From Teasing to Torment: A Report on School Climate in New
York (GLSEN 2005), at p. 8. The most commonly reported harassment was
based on physical appearance.  Sixty-six percent (66%) of students
reported that people at school were harassed at least sometimes
because of their looks or body size, with 38% reporting that this
happened often or very often. lQ. This bill therefore now includes
weight as one of the examples contained in the non-exclusive list at
the end of the harassment definition.  Bullying and harassment based
on how people expressed their gender, or because of their actual or
perceived sexual orientation was also very common. Fifty seven percent
of respondents reported that students were bullied or harassed at
least sometimes because of the way they expressed their gender, and
about a quarter (23%) said these behaviors occurred often or very
often. Id. More than five out of ten (52%) reported that students were
harassed because they were or were perceived to be lesbian, gay, or
bisexual, id., even as only 5% identified as being so.Id. at 2.  About
a quarter (24%) said these behaviors occurred often or very often. Id.
at 8.

 PRIOR LEGISLATIVE HISTORY :
A.3496-A/S.1571 (passed Assembly 2007 and 2008); A.9491/S.1454 (passed
Assembly 2006); A.4963/S.1454 (passed Assembly 2005); A. 1118/S.1925
(2003-04) passed Assembly 2003 and 2004; A.2634-A /S.1628-A (2001-02)
passed Assembly 2002; A.9244A/S.5775-A (2000).
 FISCAL IMPLICATIONS :
Minimal.

 EFFECTIVE DATE :
This act shall take effect 120 days after enactment.