Bullying

Besides Special Education advocacy, we also advocate in issues involving bullying. There are new regulations (finally!) concerning how the school is supposed to handle cases of bullying and they are not always followed.

Bullying is very serious and must be stopped as soon as possible, it cannot be tolerated. It comes in many forms, and if your child is the victim of a bully, or bullies, is intimidated, afraid to go to school, harassed by others either in person or on-line or via any method, we will help you understand your rights, protect your child, and get the school and/or school district to correct the problem.

You are not alone in this fight. We know it all too well.

If your child is the victim of bullying, there is a lot you can do to stop it. If your child is accused of being a bully, that will be discussed below.

Bullying typically does not stop on its own. The legal definition includes the requirement of “repeated.” DO NOT allow it to continue. There is much you can do, and the law protects you and your child from retaliation. The law works, but you must make sure the school deals with it correctly.

This page will define bullying (in both legal and simple terms), will outline the school district’s responsibility, and will explain what you can and should do.

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What is bullying? Here is the definition.

Bullying, pursuant to M.G.L. c. 71, §370, means the repeated use by one or more students of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a target that:
(a) causes physical or emotional harm to the target or damage to the target’s property;
(b) places the target in reasonable fear of harm to himself or herself or damage to his or her property;
(c) creates a hostile environment at school for the target;
(d) infringes on the rights of the target at school; or
(e) materially and substantially disrupts the education process or the orderly operation of a school. Bullying shall include cyberbullying.
~MA DESE 603 CMR 49.03

“Repeated”

If it happens just once, it is NOT bullying. Twice, maybe. More than that, yes, it is bullying.

“written, verbal or electronic expression or a physical act or gesture …”

If is is a note, and email, a letter, written on a locker, a desk, in writing of any form
If it is said, screamed, whispered, sang, verbally taunted …
If it is texted, iMessaged, Tweeted, im’d, commented on a blog, posted on Facebook, …
If there is a punch, kick, push, unwanted touching, inappropriate touching, …
If it is a gesture such as showing the middle finger, or other offensive actions …

Causes one or more of the following …

(a) causes physical or emotional harm to the target or damage to the target’s property;

If it causes physical pain, bruises, tripping, falling, …
If it causes torn clothing, missing items, broken items, …
If it causes anxiety, depression, confusion, lack of focus ..

(b) places the target in reasonable fear of harm to himself or herself or damage to his or her property;

If it causes fear of physical pain, bruises, tripping, falling, …
If it causes fear of torn clothing, missing items, broken items, …

(c) creates a hostile environment at school for the target;

“Hostile environment”, a situation in which bullying causes the school environment to be permeated with intimidation, ridicule or insult that is sufficiently severe or pervasive to alter the conditions of the student’s education. (MA General Law Part I/TITLE XII/CHAPTER 71/Section 370)

(d) infringes on the rights of the target at school;

Civil Rights, human rights, right to an education … (more below)

(e) materially and substantially disrupts the education process or the orderly operation of a school.

If it causes classes, lunch room, recess, etc. to operate differently

Bullying shall include cyberbullying.

Cyberbullying is bullying that takes place using electronic technology. Electronic technology includes devices and equipment such as cell phones, computers, and tablets as well as communication tools including social media sites, text messages, chat, and websites.
Examples of cyberbullying include mean text messages or emails, rumors sent by email or posted on social networking sites, and embarrassing pictures, videos, websites, or fake profiles.

From the Public Schools of Brookline Bullying Prevention and Intervention Plan, December 30, 2013 (emphasis mine):

Bullying and retaliation are prohibited:

On school grounds and property immediately adjacent to school grounds; at a school sponsored or school-related activity, function, or program whether on or off school grounds; at a school bus stop, on a school bus or other vehicle owned, leased, or used by the Public Schools of Brookline; or through the use of technology or an electronic device owned, leased, or used by the Public Schools of Brookline; and

At a location, activity, function, or program that is not school-related, or through the use of technology or an electronic device that is not owned, leased, or used by the Public Schools of Brookline, if the bullying creates a hostile environment at school for the target, infringes on the target’s rights at school, or materially and substantially disrupts the education process or the orderly operation of a school.

Retaliation against a person who reports bullying, provides information during an investigation of bullying, or witnesses or has reliable information about bullying is also prohibited.

What if my child, the target of the bully, has a 504 plan or IEP?

If your child has a 504 plan or an IEP then it has been determined that your child has a disability. Depending on the type of bullying, the civil rights of your child may be being violated. THIS IS A BIG DEAL. Taunting someone as being a “retard” is disability based bullying. Imitating someone’s physical disability is disability based bullying.

The next section describes civil rights violations and talks about the Office of Civil Rights (OCR). All of the information there applies. The OCR has documents about your rights, here is an excerpt:

When investigating disability-based harassment, OCR considers several factors, including, but not limited to:

Was a student with a disability bullied by one or more students based on the student’s disability?

Was the bullying conduct sufficiently serious to create a hostile environment?

Did the school know or should it have known of the conduct?

Did the school fail to take prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects?

If the answer to each of these questions is “yes,” then OCR would find a disability-based harassment violation under Section 504 and, if the student was receiving IDEA FAPE [IEP]or Section 504 FAPE [504 plan] services, OCR would have a basis for investigating whether there was also a denial of FAPE under Section 504.

Even if the answers to one or more of these questions is “no,” for a student who was receiving IDEA FAPE or Section 504 FAPE services, OCR may still consider whether the bullying resulted in a denial of FAPE under Section 504 that must be remedied.

~OCR “Dear Colleague” letter of 10/21/2014

Types of Bullying effecting Civil Rights and the added issues.

If the bullying involves areas of civil rights, and the school does not act quickly and decisively, a civil rights complaint can be filed. The US Department of Education, Office of Civil Rights (OCR) has a simple method of filing a complaint. There is no cost, the complaint must surround events of the last 180 days (although there are exceptions), and if accepted, the OCR will do the investigation. The OCR’s authority to resolve complaints extends to allegations of discrimination based on race, color, national origin, sex, age or disability. Note that Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.

The state’s and school district’s bullying policies do not change if a civil right is violated, the actions by the school are expected to be the same. This comes into account if the school does not promptly and properly handle the issue. It can then be escalated to the OCR, again at no cost, without a lawyer.

How to file a complaint with the OCR.

How do I report bullying? Can it be anonymous?

(Click here for the short answer, or keep reading …)

From Massachusetts General Law c. 71, §370 (emphasis mine):

(d)(1) Each school district, charter school, non-public school, approved private day or residential school and collaborative school shall develop, adhere to and update a plan to address bullying prevention and intervention in consultation with teachers, school staff, professional support personnel, school volunteers, administrators, community representatives, local law enforcement agencies, students, parents and guardians. …

(2) Each plan shall include, but not be limited to: (i) descriptions of and statements prohibiting bullying, cyber-bullying and retaliation, including procedures for collecting, maintaining and reporting bullying incident data required under subsection (k); (ii) clear procedures for students, staff, parents, guardians and others to report bullying or retaliation; (iii) a provision that reports of bullying or retaliation may be made anonymously; provided, however, that no disciplinary action shall be taken against a student solely on the basis of an anonymous report; …

From the Public Schools of Brookline Bullying Prevention and Intervention Plan, December 30, 2013 (emphasis mine):

Reports of bullying or retaliation may be made by staff, students, parents/guardians, or others, and may be oral or written. Oral reports made by or to a staff member shall be recorded in writing. Staff members report immediately to the Headmaster/Principal/Superintendent/School Committee or designee any bullying or retaliation the staff member becomes aware of or witnesses. PSB [Public Schools of Brookline] has incident report forms available on its website for reporting, and encourages families to report incidents of bullying or retaliation.

Use of a Bullying Incident Report Form is not required as a condition of making a report. …

The Bullying Incident Report Form is available in the most prevalent language(s) of students and parents/guardians.

So what does that mean?

You can anonymously report bullying or harassment or retaliation BUT there will be no repercussions for the aggressor, no discipline action taken, based on an anonymous report.
You can report bullying or retaliation orally or in written form. That means, just telling the staff or administration about a bullying incident IS an official report. Mentioning it in an email IS an official report. Filling out the school district’s Bullying Incident Report Form IS an official report (whether or not you put your name on it).

The BEST way to report bullying …

download and fill in the Bullying Incident Report Form
hand deliver to the main office of the school, addressed to the Principal
ask for a signed, date stamped copy of the report
WAIT FOR THE signed, date stamped copy of the report
if they will not sign and date stamp the report while you wait, take it back and bring it to Town Hall, 5th Floor and go to either the Deputy Superintendent for Student Service or to the Superintendent and request the same. They will absolutely do it.

What if there is retaliation?

Retaliation is handled and reported the same was as bullying. When done correctly, the initial bullying report is handled quickly and retaliation does not occur as the penalties are discussed early on. If in fact there is any form of retaliation, it must be reported immediately. But again, typically it does not happen.

What happens after I report it?

From Massachusetts General Law c. 71, §370 (emphasis mine):

(g) A member of a school staff, including, but not limited to, an educator, administrator, school nurse, cafeteria worker, custodian, bus driver, athletic coach, advisor to an extracurricular activity or paraprofessional, shall immediately report any instance of bullying or retaliation the staff member has witnessed or become aware of to the principal or to the school official identified in the plan as responsible for receiving such reports or both. Upon receipt of such a report, the school principal or a designee shall promptly conduct an investigation. If the school principal or a designee determines that bullying or retaliation has occurred, the school principal or designee shall (i) notify the local law enforcement agency if the school principal or designee believes that criminal charges may be pursued against a perpetrator; (ii) take appropriate disciplinary action; (iii) notify the parents or guardians of a perpetrator; (iv) notify the parents or guardians of the victim, and to the extent consistent with state and federal law, notify them of the action taken to prevent any further acts of bullying or retaliation; and (v) inform the parents or guardians of the victim about the department’s problem resolution system and the process for seeking assistance or filing a claim through the problem resolution system.

From the Public Schools of Brookline Bullying Prevention and Intervention Plan, December 30, 2013 (some emphasis mine). There is more in the plan, I am highlighting parts here:

C. Responding to a Report of Bullying or Retaliation
1. Safety
Upon receiving a report of bullying or retaliation, the Headmaster/Principal/Superintendent/School Committee or designee, with the assistance of appropriate support staff, takes prompt steps to assess the need to restore a sense of safety to the alleged target(s), along with those who report, witness, provide information in an investigation of, or have reliable information about, bullying or retaliation. The Headmaster/Principal/Superintendent/School Committee or designee also takes steps to protect these individuals from possible further bullying or retaliation. Responses to promote safety may include, but not be limited to, creating a personal safety plan; pre-determining seating arrangements for the target and/or the aggressor in the classroom, at lunch, or on a transportation vehicle; identifying a staff member who will act as a “safe person” for the target; and altering the aggressor’s schedule and access to the target. The Headmaster/Principal/Superintendent/School Committee or designee takes additional steps to promote safety during the course of and after the bullying or retaliation investigation, as necessary.

2. Obligations to Notify Others
a. Notice to Parents or Guardians
Upon receipt of a report of bullying or retaliation, the Headmaster/Principal/Superintendent/School Committee or designee shall promptly notify the parents/guardians of the alleged target(s) and aggressor(s) of the report. The Headmaster/Principal/Superintendent/School Committee or designee shall also periodically update the parents/guardians of the alleged target(s) and aggressor(s) during the investigation. Notice to parents/guardians under this section shall be in the primary language of the home and consistent with the confidentiality requirements of the Plan. …

D. Investigation
The Headmaster/Principal/Superintendent/School Committee or designee investigates all reports of bullying or retaliation and, in doing so, will consider all available information known, including the nature of the allegation(s) and the ages of the students involved. Specifically, the Headmaster/Principal/Superintendent/School Committee or designee shall complete the investigation within a reasonable amount of time, not to exceed 15 school days following the date of the report. …

E. Determination
The Headmaster/Principal/Superintendent/School Committee or designee makes determinations based upon all of the facts and circumstances. If, after an investigation, the Headmaster/Principal determines that bullying or retaliation has occurred, the Headmaster/Principal/Superintendent/School Committee or designee will take steps reasonably calculated to stop the prohibited conduct, prevent its reoccurrence, and ensure that the target(s) is/are not restricted in participating in school or in benefiting from school activities.
Specifically, the Headmaster/Principal shall:

Determine what remedial action is required, if any;

Determine what responsive actions and/or disciplinary action is necessary, including, when appropriate, consultation with support staff to identify any underlying social or emotional issue(s) that may have contributed to the bullying or retaliation, and assess the level of need for additional social skills development or referral to one or more of the resources identified in the Plan; and

In the event of a staff member, the administrator will consult with the Assistant Superintendent of Human Resources to determine the appropriate course of action.

Notify the parents/guardians of the target(s) and the aggressor(s) of the determination and of the procedures for responding to the bullying or retaliation; and

Notify the parents/guardians of the target(s) of the action to be taken to prevent further bullying or retaliation.

NOTE: This is just an abbreviated version from the bullying plan. See the Public Schools of Brookline Bullying Prevention and Intervention Plan for a full list of actions.

What is a “safety plan” and a “safe person”?

When bullying is reported (and, actually, anytime) the school can create a safety plan. The purpose of this plan must be to ensure the student it is written for is both safe and feels safe (although one principal insists it is only to make the target feel safe, which is like saying that the NATO alliance is written to make Turkey and Greece only feel safe as opposed to being safe).

The safety plan does not have to be signed by the parents, but should be designed in consultation with the parents, and at times must be.

First, two definitions from the Commonwealth:

“Home Base”: This is a location in the school selected by student and school staff where the student can go when not feeling safe. (“Safe” and “unsafe” feelings would need to be defined and taught.) This location should be a place where the student can be supervised and monitored by school staff. Some examples could include the School Adjustment Counselor’s office, the main office, the resource room, or the nurse’s office.

“Safe Person”: This is a designated person in the school who the student can talk to and process social situations that are troubling, confusing, or agitating, including bullying, that may not be readily understood by the student. This person should be familiar to the student and have a trusting relationship already established. This needs to be a person chosen with the student and parents who understands the student and can help him or her de-escalate a situation or calm down and resume the normal school day routine. This does not need to be a specialist or a teacher but can be a staff member who knows and understands this student and can help him or her interpret confusing situations. The Safe Person must be familiar with practices known to be helpful when working with students with disabilities that affect communication and social awareness.

Note that I have been involved with safety plans where the safe person was a custodian for instance. In that case it was a younger student with emotional issues and he happened to have bonded with the custodian. Hence, the custodian was brought in when the student was involved with an incident, not to make determinations, but to be there for support. More typical might be the school nurse, a guidance counselor, a favorite teacher or lunch aide. Also note, the safe person is not determined by the school.

The plan will typically define how the aggressor and the target will be kept apart. It will address what actions to take if the target feels unsafe. Often it will give the target permission to leave any situation (lunch, recess, etc.) and go to their safe “home base” or “safe person.” This means they can leave the cafeteria, for instance, when others may not. The plan will define who the safe person is (or are). It will typically state what transgressions or violations of the plan will be reported to the parents, how, and when. For instance, “Any time the student reports feeling unsafe, his/her parents will be notified by (phone/email) immediately.”

The plan may involve “check ins,” especially with younger students. Possibly a signal such as a “thumbs up” from the teacher after lunch to be responded to by the student with either a thumbs up (feeling safe) or a thumbs down (not feeling safe).

The plan must be shared with any adults who will be in contact with the student. All teachers, guidance counselors, administrators, lunch aides, recess monitors, etc. must know about the plan. The plan should stay in place whether or not a bully investigation finds in fact there was bullying. If the student does not feel safe, especially if, in fact, the student is not safe, the plan must stay.

What do I do if nothing happens?

If you do not hear anything in a couple of days (I would say 3 school days), contact the Principal of the school directly by phone and follow up with an via email (stating time and date of the follow-up). If another day goes by, contact your Superintendent by phone or in person. If you still do not get a response (but you will), contact your favorite advocate.

Is the report public?

No. Bully reports are not made public. Much of the information is protected under FERPA. Even if you filled the report and your child is the target, and the investigation does conclude that bullying occurred, you will NOT be informed of any disciplinary actions taken against the aggressor. No information will be publicly available that could identify either the aggressor or the target.

Will I find out the results of the report / investigation?

You will only be informed if, in fact, the investigation concluded that bullying occurred. You will not be privy to any action taken other than actions to protect your child if that is the situation.

What if my child is accused of being a bully?

The school district will keep you informed as the investigation goes on. If your child is on a 504 plan or an IEP there are some protections. The primary protection comes into play if your child is suspended for 10 days or more consecutively, or 10 days or more non-consecutively but for similar reasons. A special meeting will be held called a “manifestation determination.” The purpose is to determine if the actions causing the suspensions are due to the child’s disability. If they are there will not be an expulsion and there must be a continuation of educational services.

Here is a helpful flow chart from the Massachusetts Department of Education: Discipline of Special Education Students Under IDEA 2004

Here is another resource: Questions and Answers on Discipline Procedures

How do I get help with this? Who can answer questions?

This page was written by one of the SEPAC co-chairs, Craig Haller, who is also a Special Education Advocate. Feel free to contact him via his website, SPEDadvocate.com or email him at Craig@SPEDadvocate.com

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Resources, laws, etc.

Massachusetts Department of Elementary and Secondary Education:

603 CMR 49.00 Notification of Bullying or Retaliation Regulations

Bullying Prevention and Intervention Resources