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"New York's Dignity For All Students Act: Thoughts On Its Effectiveness In Stemming The Tide Of Bullying In Public Schools" by John Nicodemo


New York's Dignity for All Students Act: Thoughts On Its Effectiveness In Stemming The Tide Of Bullying In Public Schools

by John Nicodemo

Fifteen-year-old Phoebe Prince was not unlike many of her classmates at South Hadley High School in Massachusetts. Aside from her being an Irish immigrant, Phoebe shared the same aspirations, dreams, and general growing pains of most adolescents her age. However, six fellow students, in a concerted and deliberate effort to negatively impact Phoebe's life, embarked on a course of harassment after the young student dated an older boy. After months of taunting remarks, internet threats, stalking, and bodily harm, Phoebe hanged herself from a stairwell in January 2010. See Erik Eckholm & Katie Zezima, Questions for School on Bullying and a Suicide, N.Y. TIMES, April 2, 2010 at A1.

Bullying in schools: No longer a rite of passage

Any effort to effectively address bullying and harassment in schools is a good thing, especially in light of recent events. All too often, we encounter headlines and top news stories that report incidents of repeated harassment that render the lives of school children unbearable; even the extreme incidents of attempted (or actual) suicide arise. Furthermore, the Internet, with its access to social networking sites and instant messaging capabilities, allows bullying to extend beyond the schoolhouse walls and follow victims into the once-safe environment of home.

In efforts to stem the tide of bullying, 46 states have enacted anti-bullying statutes. See BULLY POLICE.ORG, http://www.bullypolice.org/. On September 13, 2010, the New York Legislature enacted the Dignity for All Students Act (DASA), a law intended "to afford all students in public schools an environment free of discrimination and harassment . . . to foster civility in public schools and to prevent and prohibit conduct which is inconsistent with a school's educational mission." N.Y. EDUC. LAW §10 (McKinney 2011). DASA will go into effect July 1, 2012.

According to State Senator Thomas K. Duane, DASA's New York Senate sponsor, "no child should be terrified to go to school simply because of who they are." See Isolde Raftery, Anti-bullying Bill Passes and Goes to Patterson, N.Y. TIMES, June 24, 2010 at A28. The words of Senator Duane carry a resounding message. DASA seeks to provide a safe school environment for students against harassment based on "race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, and gender." N.Y. EDUC. LAW §12 (McKinney 2011).

Furthermore, those that still harbor the misguided notion that bullying is simply a part of "the growing process" and that legislatures need not waste their time drafting prohibitions to "rites of passage" need simply open the local newspaper. We have become a more enlightened, more civil society; the ideology of it-happened-to-me-and-I-survived, in my opinion, only serves to produce bitter and narrow-minded adults. Those of us who experienced bullying realize this. A legislative act intended to prevent the effects of harassment will succeed even if it prevents one suicide.

However, a fundamental question exists of whether DASA, in its current form, provides for all the necessary elements required to incorporate an effective anti-bullying statute into the New York schools. Perhaps looking beyond the borders of New York State to sister jurisdictions that have earned high praise for the effectiveness of their anti-bullying statutes can serve as a guidepost for implementing the statute here in anticipation of its effective date of July 2012.

Does DASA effectively provide Dignity for All Students?

"Today's bullies have a lot more tools at their disposal than just threatening someone with their fists . . . Laptops and cellphones can spread rumors or terrorize classmates at lightning speed. Within seconds, an entire school population can be tuned into someone's rants, view inappropriate photos or know when and where a fight will take place." See Ron Isaac, UFT: Bullying on the Rise, UFT.ORG (June 23, 2011), http://www.uft.org/news-stories/uft-bullying-rise).

DASA, although applauded by several formidable groups (Empire State Pride Agenda, New York Civil Liberties Union, the Anti-Defamation League, Gay Lesbian & Straight Education Network) as a policy effectively designed to address the issue of school bullying and harassment head on, has also been criticized for failing to textually incorporate necessary provisions that have proved significantly successful in other states' anti-bullying legislation. See BULLY POLICE.ORG, http://www.bullypolice.org/ny_law.html (last visited July 7, 2011). Some of the criticism surrounds the absence of an implementation strategy that would allow DASA to be incorporated into existing school policy as seamlessly as possible.

However, the New York Department of Education has acted to alleviate this shortcoming of DASA by empanelling a Task Force that will serve to provide guidelines for implementation. The more pressing criticism arises from DASA's lack of two provisions: (1) a counseling clause that would textually provide an emphasis on counseling victims of bullying and harassment, and (2) a cyber-bullying clause See Id., referring to FLA. STAT. ANN. §1006.147(4)(j) (providing a "procedure to refer victims and perpetrators of bullying or harassment for counseling."); DEL CODE ANN. EDUC. tit. 14 §1412D(b)(2)(m) (West 2011) (providing a "procedure for communication between school staff members and medical professionals who are involved in treating students for bullying issues."); MASS. GEN. LAWS. ANN. Ch. 71 § 370(d)(x) (West 2011) (providing "a strategy for providing counseling or referral to appropriate services for perpetrators and victims and for appropriate family members of said students); MASS. GEN. LAWS. ANN. Ch. 71 § 370(a) (West 2011) ("bullying shall include cyber-bullying."); MD. CODE ANN. EDUC. § 7-424.1(a)(1)(2) ("Bullying, harassment, or intimidation means intentional conduct, including verbal, physical, or written conduct, or an intentional electronic communication . . . ."); NH REV. STAT. ANN. § 193-F:3 II(West 2011) ("cyber-bullying" textually added to the definition of "bullying.").

Florida's Jeffrey Johnson Stand Up for All Students Act (FLA. STAT. ANN. § 1006.147 (West 2008), enacted in 2008, provides a good example of the incorporation of a "victim-counseling clause" and a "cyber-bullying clause," both of which are lacking in the Dignity for All Students Act. Florida's anti-bullying statute mandates "a procedure to refer victims and perpetrators of bullying or harassment for counseling." Id. at § 4(j). Additionally, the Jeffrey Johnson Stand Up for All Students Act specifically identifies cyber-bullying as a category of prohibited bullying by stating, "Bullying or harassment . . . is prohibited through the use of data or computer software that is accessed through a computer, a computer system, or computer network of a public K-12 educational institution." Id. at §1(c).

Florida's statute received high marks for incorporating these two provisions, which renders the Jeffrey Johnson Stand Up for All Students Act both comprehensive and appropriately directed at emphasizing victim counseling. See BULLY POLICE.ORG, http://www.bullypolice.org/grade.html. Cyber-bullying, an unfortunate consequence of the technological strides of the past decade, broadens the scope of bullying and harassment by allowing bullies to harass their victims both at school and at home. Technology allows perpetrators of harassment to victimize well beyond the confines of the school building. E-mail, text messaging and social networking have become household words for school-aged children; these means of communication, instantaneous in their ability to disseminate information, are available to anyone with a cellular phone or computer. Although benevolent in their purposes, they are often used as forums for malevolent, and often tragic, intentions. See BULLYING STATISTICS.ORG, http://www.bullyingstatistics.org/content/bullying-and-suicide.html (last visited July 7, 2011).

Cyber-bullying is a true threat to safety in schools, and recent statistics reveal that the easily accessible world of cyberspace allows bullying to be taken to a whole new level. i-Safe America, an Internet safety education foundation, commissioned a recent national study of students grade four through eight, and found that "cyber-bullying is the latest trend in childhood harassment." See Erica Carlson, National i-SAFE Survey Finds Over Half of Students Are Being Harassed Online, DBPRESCOTT.COM, http://www.dbprescott.com/internetbullying6.04.pdf.

According to the study, "57 % of students said someone had said hurtful or angry things to them online with 13 % saying it happened quite often; 53 % of students admitted saying mean or hurtful things to someone online while 7 % admitted to doing it quite often; 35 % of students had been threatened online with 5 % saying it happened quite often; 42 % of students had been bullied online with 7 percent admitting it happened quite often; 20 % of students received mean or threatening e-mails while 58 % of students had not told their parents or another adult about someone being mean or hurtful to them online." Id. In light of numbers like these, it is not at all difficult to understand the consternation surrounding the absence of a cyber-bullying clause in DASA.

A clause in DASA that effectively incorporates cyber-bullying as a prohibited behavior subject to disciplinary actions would serve to address this real and ever-growing threat to the safety of our children. It seems remiss of the New York State Legislature to have omitted enumerating specific cyber-bullying prohibitions in the text of the statute. Clear textual provisions circumvent any vagueness or ex-post facto challenges to a statute. The stroke of a legislative pen may serve to remedy the missing clause in DASA.

A second area presently lacking in the DASA concerns providing counseling for victims; New York's statute has no such provision. The above-cited statistics, aside from demonstrating the ill effects of cyber-bullying, reveal that school bullying, in general, has reached overwhelming proportions.

On October 12, 2010, a fourteen-year-old boy was brutally attacked on a school bus in Nassau County on Long Island. The three perpetrators, along with their victim, attended the Nassau Board of Cooperative Education Services (BOCES) High School in the town of Hicksville, New York. The following morning, the attackers again descended on the boy, repeating their assault of the previous day. It was subsequently reported that the victim had been the target of harassment for several months leading up to the attacks. The brutal assaults, and the harassment preceding them, happened simply because the attackers perceived the victim to be gay. Moreover, both incidents, severe enough to warrant the Nassau County prosecutor to charge the students with second-degree assault, were witnessed by both the bus driver and the bus monitor, but, alarmingly, were never reported to school officials. See Killian Malloy, 3 Teens Accused of Beating Boy, 14, for Being Gay, EDGENEWYORK.COM (Oct. 14, 2010), http://www.edgenewyork.com/index.php?ch=news&sc=&sc3=&id=111607).

The New York Legislature asserts that one of DASA's purposes seeks to "afford all students in public schools an environment free of discrimination and harassment." See N.Y. EDUC. LAW §10 (McKinney 2011). Undoubtedly, by establishing policies that effectively punish prohibited behavior, the legislative intent can be accomplished. However, anti-bullying statutes prescribing only punishment as a deterrent to unacceptable behavior, fail to address the needs of the victims, many of whom are scarred by the acts of bullying.

Furthermore, threats of punishment should not necessarily be the primary impetus for the bullies to alter their behaviors. Just as penal law systems provide counseling for victims and establish programs to rehabilitate offenders, anti-bullying statutes designed for school-age children should focus on rehabilitative counseling for both victim and offender. Without such a provision, DASA's effort to "foster civility in public schools" may potentially fail.
Anti-bullying statutes that specifically provide for counseling services for the victims of harassment serve to address the often extreme emotional and psychological damage that bullying causes its victims. Statutes that do not provide empowerment programs, therapy and counseling for victims, in essence, fall short of their missions; they may successfully curb future harassment in the schools but past recipients of the abuse continue to suffer its effects. Optimally effective anti-bullying statutes not only criminalize certain behaviors, but also comprehensively correct past ills.

Additionally, other states' highly regarded comprehensive anti-bullying laws incorporate counseling for perpetrators in an effort to positively affect individual students' aggressive and bullying behaviors. Several states have provided for individual school-instituted task forces, comprised of administrators, teachers, students, and counselors, to continually reinforce the legislative goal of providing safe environments for students.

The New York Legislature expressly mandates that Department of Education officials create school environments that promote "tolerance, respect for others, and dignity" by incorporating "instruction in grades kindergarten through twelve include[ing] a component on civility, citizenship and character education." See N.Y. EDUC. LAW §801-a (McKinney 2011). These statutorily imposed instructions presumably delegated to the Task Force for implementation indicate an obvious intent of the legislature to foster scholastic environments free of unnecessary impediments to optimal learning.

To effectively accomplish this objective, school officials should not only be concerned with preventing future incidents of harassment, but also with correcting past ills. Appropriate counseling for victims can assure that students like the gay teen from Hicksville, New York (above) can overcome the indignities of the past and fully engage in the learning process.

Lessons to be learned

Even the most severe critics of DASA's shortcomings understand the overwhelming importance of its mere enactment. However, its lack of both a cyber-bullying prohibition and a provision for both victim and perpetrator counseling underscore the need for the Task Force commissioned by the Department of Education to comprehensively and effectively incorporate the well-intended policy into the school districts throughout the state. Law students throughout the state should take note that effective lawmaking results in a concerted effort to dot every "i" and cross every "t." Without taking all elements into account, a statute, regardless of its righteous legislative intent, may fall short of its mission.

From a grander perspective, law students should develop a keen understanding that the law is an ever evolving process, often fueled by socio-political advocacy. DASA would not have reached the floor of the legislature without an awareness of the devastating consequences of adolescent bullying. As lawyers, especially those interested in advocacy and working in public interest, must remain continually aware of the needs of the community and understand that action produces results. Even the flawed DASA serves not only as a response to a pressing societal need, but it also provides a reassuring solution to an overwhelming problem. With the intervention of a few good lawmakers, schools throughout New York may fulfill their missions as optimal institutions of learning.

John Nicodemo is a third-year law student at Touro Jacob D Fuchsberg Law Center, and is a candidate to earn his J.D. in December 2011. In addition to his role as Articles Editor for Touro Law Review and President of Touro's chapter of the American Constitution Society, John is completing his summer internship working with Long Island Gay and Lesbian Youth, advocating for the rights of the LGBT community on Long Island. John is the recipient of the Charles H. Revson Public Interest Fellowship and the Summer Corps/Equal Justice Works Fellowship for his work in the public interest sector during the summer of 2011.

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This page contains a single entry from the blog posted on August 16, 2011 2:16 AM.

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