Published by MoASBO, June 2013
Bullying has been a hot legal topic for the past decade. Indeed, in 2006, in response to increased awareness due to several student-related tragedies, the Missouri legislature passed the State’s first anti-bullying statute, Mo. Rev. Stat. § 160.775. That statute has remained relatively unchanged for the last seven years. However, with the introduction of House Bill 134 (“HB 134”) in this year’s General Session, change seems likely to occur. HB 134 intends to “beef up” Missouri’s existing statute by broadening the definition of bullying and placing new obligations on Missouri school districts. Some of the obligations include additional reporting requirements, additional training for students and staff, a procedure for investigating acts of alleged bullying and the requirement to inform students of other legal-related forums from which they might seek relief. This article will briefly discuss some of the proposed changes to the current law and what effects they may have on Missouri schools.
Current Missouri law defines bullying as “intimidation or harassment that causes a reasonable student to fear for his or her physical safety or property.” Mo. Rev. Stat. § 160.775. HB 134 proposes to broaden the definition by including whether the incident “substantially interferes with the [student’s] educational performance, opportunities, or benefits….” HB 134, 97th General Assembly (2013). It also seeks to include whether the alleged incident “substantially disrupts the orderly operation of the school.” Id. In effect, this change signifies that bullying is no longer limited to fear for one’s physical safety, but would now also include whether the student was affected mentally through his or her performance at school. Thus, district administrators will be asked to not only determine whether a student felt physically threatened but also whether the student’s educational performance was substantially affected. Concern arises regarding this addition as the legislature has failed to provide any guidance regarding what substantial interference with a student’s education might entail. Concern also arises with regard to what constitutes substantial disruption of the orderly operation of the school as no guidance has been offered here either.
HB 134 also seeks to change the requirements for reporting incidents of bullying. Current Missouri law states that district employees are only required to report instances of bullying of which they have “firsthand knowledge.” Mo. Rev. Stat. § 160.775. In other words, under the current law, district officials must only report incidents of bullying they witnessed. HB 134 would require that all employees report any instance of bullying of which they not only have firsthand knowledge but also if they have a “reasonable cause to suspect” bullying occurred. HB 134, 97th General Assembly (2013). “Reasonable cause” is based upon the reasonable person standard and whether a reasonable person would feel that bullying had occurred. Obviously, this is a substantial change from current law. If HB 134 is enacted without further modification, District employees will be required to report essentially any instance of alleged bullying they hear, rumor or otherwise. District administrators will want to encourage their staff members to report any instance so that they are not later questioned or second-guessed regarding their reason for failing to report a possible instance of bullying. As a result, rightly or wrongly, school administrators will be faced with investigating acts with which they have little to no knowledge other than what an individual may have heard or misheard in the school hallway.
The proposed bill would also allow for students to report instances of harassment, intimidation or bullying anonymously. Currently, State law makes no reference to the ability for a student to report an incident of alleged bullying either in-person or anonymously. The effect of anonymous reporting will undoubtedly have its advantages and disadvantages. One advantage would be that anonymous reporting would permit students who feel embarrassed to report acts of bullying freely. As such, students may feel more inclined to report incidents of alleged bullying which in turn results in prompt and effective action from the school district and, thus, a safer school environment for the victim. The disadvantage may be that district officials spend hours investigating acts that never occurred as anonymous reporting permits abuse of the system.
The bill would also require that the District develop a procedure for the “prompt investigation of reports of serious violations and complaints” and the “range of ways in which a school [would] respond once an incident of bullying was confirmed.” Id. This raises a myriad of questions regarding what constitutes serious violations versus less serious violations and how district administrators will respond to each incident. Current State law does not require any procedure and permits district officials to handle matters of alleged bullying as formally or informally as they deem necessary. Thus, if HB 134 is enacted into law, discretion regarding how to investigate a matter of alleged bullying will effectively be removed from the district administrator’s hands as he or she will be required to abide by the procedures laid out in school board policy.
HB 134 would also require that the district develop a process for “discussing the district’s antibullying policy with students and training school employees and volunteers who have significant contact with students.” Id. Further, it would require that the district provide “education and information to students regarding bullying, including information regarding the school district policy prohibiting bullying, the harmful effects of bullying, and other applicable initiatives to prevent bullying.” Id. Additionally, the administration of the school district would be required to “implement programs and other initiatives to prevent bullying, to respond to such conduct in a manner that does not stigmatize the victim, and to make resources or referrals available to victims of bullying.” Id. The training specified would be held annually for both district staff and students.
Lastly, and interestingly, HB 134 would require that school districts provide students who are the subject of bullying and who have completed all procedures required by the district’s reporting policy to be informed that he or she may seek other remedies, namely, the filing of a civil action against the individual alleged to be responsible for the bullying and against the parents or legal guardians of that individual. Id. Further, HB 134 would require that the individual being bullied be informed that they may request “intervention by any other county, state, or federal agency or office that is empowered to act on behalf of the [victim].” Id. Rightly or wrongly, this will cause school districts to become entangled in, or be the subject of, litigation. It will also require that districts contact their legal counsel as this information will need to be carefully crafted so as not to assume liability for any of the alleged actions.
As with any proposed bill, no one can be certain that HB 134 will become law. That being said, one thing is certain, bullying will remain a hot legal topic for years to come and additional bills will be introduced.
© 2013 Mickes Goldman O’Toole, LLC
