Model State Anti-Bullying & Harassment Legislation
REVISED APRIL 2020
Table of Contents
Legislative Purpose Findings
Definitions & Scope Of Proscribed Conduct
State Education Agency Responsibilities
Local Education Agency Responsibilities
Sanctions & Civil Liability
GLSEN is a non-profit organization dedicated to the improvement of educational experiences and learning environments in grades kindergarten through 12 (K–12) for all students, regardless of their sexual orientation, gender identity, gender expression, race, disability status, national origin, ethnicity, and/or religion. GLSEN works in collaboration with students, educators, and lawmakers to advance evidence-based solutions in the improvement of school climate and culture for all students and educators. Over the past two decades GLSEN has been a leading champion in the passage of state laws that expand protections for students who experience bullying and harassment. The Model State Anti-Bullying and Harassment Legislation presented here includes GLSEN’s recommendations on how to structure these important bills that are designed to protect all students. If you have any questions about the model legislation, please contact GLSEN’s Public Policy Office at firstname.lastname@example.org.
With thanks to state legislators whose anti-bullying and harassment legislation inspired many of the new components included in this model policy, staff across GLSEN Departments for their feedback, and colleagues in partner organizations for their review, including staff from the National Center for Transgender Equality and the National Center for Lesbian Rights.
LEGISLATIVE PURPOSE & FINDINGS
- Explain the context and need for the legislation.
- Apply research that informs legislative components.
- If appropriate, mention particular local needs or recognized incidents.
This statement explains why anti-bullying and harassment legislation is important. It outlines the legislative intent of the law that can serve as reference in the context of relevant court cases. The inclusion of this section— which describes the importance of creating a safe school environment, and the ways in which bullying and harassment adversely affects students —can help in the implementation and enforcement of the law.
Be it enacted by the Legislature of the State of _________:
Section 1. This Act, henceforth known as the Safe Schools Act, shall be hereby enacted to read as follows:
A. The Legislature finds and declares that:
DEFINITIONS & SCOPE OF PROSCRIBED CONDUCT
- Make the Act applicable to all K–12 public schools and school-related activities.
- Ensure that definitions of bullying and harassment focus on the effect rather than intent of behavior.
- Enumerate specific categories that will be explicitly protected under the law, e.g. sexual orientation, gender identity, and gender expression.
- Provide separate definitions of bullying and harassment.
To maintain consistency between various state anti-bullying and harassment laws, as well as federal law, legislators should consider using the definitions of bullying and harassment provided here. In some cases, state legislatures have defined bullying and harassment coextensively— as if they were the same thing. While certain behavior may represent both bullying and harassment, there are cases in which harassment will not constitute bullying, and vice versa. In defining bullying and harassment, the focus should be on how the conduct interferes with a student’s ability to participate in educational opportunities. By focusing on the impact of the behavior of the “bully” or “harasser” rather than their intent, educators are more readily able to focus on improving outcomes for all students.
Section 2. Definitions and Scope of Proscribed Conduct
A. This Act applies to conduct occurring on and adjacent to all public elementary and secondary school; premises, at any school-sponsored functions or activities, and on school-sponsored transportation.This Act also applies to usage of electronic technology and electronic communications that occurs on all public elementary and secondary school premises, at any school-sponsored functions or activities, on school-sponsored transportation, school computers, networks, forums, and mailing lists.
B. As used in this Chapter:
1. The term ‘bullying’ used in this Act:
a. Means conduct that adversely affects the ability of one or more students to participate in or benefit from the school’s educational programs or activities by placing a student in fear of physical harm.
b. Can include, but is not limited to, conduct based on:
i. a student’s actual or perceived race, color, national origin, sex, disability status, sexual orientation, gender identity, gender expression, ethnicity, religion; or
ii. other distinguishing characteristics that may be defined by a state or local education agency; or
iii. association with a person or group with one or more of the actual or perceived characteristics listed in (i) or (ii).
2. The term ‘harassment’ used in this Act means conduct that:
a. Adversely affects the ability of one or more students to participate in or benefit from the school’s educational programs or activities because of the conduct; and
b. Can include conduct based on a student’s actual or perceived race, color, national origin, sex, disability status, sexual orientation, gender identity, gender expression, ethnicity, religion, or any other distinguishing characteristics that may be defined by a state or local educational agency; or
c. Is based on association with a person or group with any person with one or more of the actual or perceived characteristics listed in (b).
Anti-bullying and harassment legislation that applies to K–12 education is designed to address the needs of students who experience victimization in their schools. The most effective policies require protections for all students and also specify, or enumerate, categories of students who are particularly vulnerable due to bias and who research shows experience the highest rates of victimization. State anti-bullying and harassment legislation, and local education agency policies, should specifically protect students based on their actual or perceived race, color, national origin, sex, disability status, sexual orientation, gender identity or expression, ethnicity and religion.
Enumeration of protected categories is necessary to protect all students as research has consistently shown that students experience less bullying, feel safer overall, and that teachers are more likely to intervene to prevent incidents of bullying in schools with enumerated policies. Research conducted by GLSEN found that students who attended schools with an enumerated policy heard fewer homophobic and racist remarks compared to students with no anti-bullying policy. Students were more likely to feel unsafe in schools with generic policies or no policies. These students were also less likely to perceive bullying, name-calling, or harassment as a problem at their school compared to students in schools with a generic policy or with no policy. Additional findings:
Greytak, E. A., Kosciw, J.G., Villenas, C., & Giga, N. M. (2016). From Teasing to Torment: School Climate Revisited, A Survey of U.S. Secondary Students and Teachers. New York: GLSEN. Kosciw, J. G., Greytak, E. A., Zongrone, A. D., Clark, C. M., & Truong, N. L. (2018). The 2017 National School Climate Survey: The experiences of lesbian, gay, bisexual, transgender, and queer youth in our nation’s schools. New York: GLSEN.
STATE EDUCATION AGENCY RESPONSIBILITIES
- Require the State Education Agency (SEA) to author and publish an up-to-date model policy.
- Require that Local Education Agency (LEA) policies are in compliance with the legislation.
- Grant SEAs the responsibility to issue guidance, regulations, and provide technical assistance.
- Address the unique needs of transgender, non-binary, and gender-nonconforming students as part of the legislation.
- Specify that SEAs should develop procedures for monitoring LEA policy adoption, collecting local and aggregated statewide data on incident reports that inform efforts to strengthen bullying prevention programs, and a reporting mechanism to identify LEAs and schools that are non-compliant
Section 3. State Education Agency Responsibilities
A. To assist LEAs in developing policies for the prevention of bullying and harassment, the SEA shall develop and maintain a model LEA policy that is:
B. Hire a safe school specialist who will identify evidence-based training resources and provide additional technical assistance on LEA policy implementation that incorporates state bullying prevention standards.
C. The SEA shall issue guidance on how to implement this legislation, including:
a. maintenance of a safe and supportive learning environment free from discrimination and harassment for all students;
b. terms, definitions, and discussion of gender identity and expression;
c. maintenance of gender, name, and pronoun information to reflect a student’s gender identity;
d. protection of student privacy and the confidentiality of sensitive information;
e. student participation in sex-segregated school activities and events, including athletics, and use of school facilities; and
f. compliance with all applicable state and local nondiscrimination and privacy laws or ordinances.
D. The SEA shall develop appropriate procedures for--
LOCAL EDUCATION AGENCY RESPONSIBILITIES
- Specify that LEA policy adoption and implementation is required and must align with the legislation.
- Establish LEA procedures for managing and reporting incidents of bullying and harassment.
- Establish the use of restorative vs. punitive disciplinary process and consequences in response to incidents of bullying and harassment.
- Require publication of the anti-bullying and harassment policy on the LEA website and distribution through other communications channels.
- Require professional development for educators and training for students.
Section 4. Local Education Agency Responsibilities
A. Each LEA shall adopt a policy prohibiting harassment and bullying as defined in this legislation. Such policies shall, at a minimum, be consistent with the model policy established by the SEA.
B. Each school district shall adopt policies pursuant to this legislation that, at minimum--
Family Notification of Bullying and Harassment Incidents Based on Anti-LGBTQ+ Bias
Most LGBTQ+ students never report incidents of harassment or assault to school staff, commonly because they fear being outed as LGBTQ+ to staff or to family members; 96.6 percent of LGBTQ+ students said they did not always report these types of victimization experiences. Further, 10.8 percent of LGBTQ+ students reported that school staff had actually outed them to their families without their permission. In recognition of potential harms to students from being outed to parents, caregivers, or other family members who may not affirm their sexual orientation, gender identity, and/or gender expression, educators should create family notification plans at the LEA and school levels for processing reports of bullying and harassment based on sexual orientation, gender identity, and gender expression.
Kosciw, J. G., Greytak, E. A., Zongrone, A. D., Clark, C. M., & Truong, N. L. (2018). The 2017 National School Climate Survey: The experiences of lesbian, gay, bisexual, transgender, and queer youth in our nation’s schools. New York: GLSEN
Additional Provision on Establishing Anti-Bullying and Harassment Task Forces
As educators know, local communities have unique characteristics which play a role in the types of programs that can remove barriers to LGBTQ+ safety and educational attainment effectively. At least 13 states and the District of Columbia have convened anti-bullying and harassment task forces to help identify ways to make schools safer. These efforts can be a valuable resource for evaluating implementation of anti-bullying and harassment legislation. In addition to creating recommendations on new ways to strengthen existing legislation, these bodies conducted research and organized community listening sessions to better understand existing issues and programs. Educators, students, school counselors, and other community leaders on these task forces helped guide the content of regulations and model policies that state agencies subsequently issued. Local leaders and participants crafted recommendations on professional development for educators and antibullying and harassment trainings for students. Task forces have the potential to provide leadership on a broader set of issues. For example, task force members can examine the work of advocates in a growing number of states who are building support for the adoption and implementation of inclusive curricular standards. In 2019, Maryland became the sixth state to approve the addition of LGBTQ+ inclusive curricular standards following Illinois, California, New Jersey, Colorado, and Oregon. Other jurisdictions have amended their statewide curricular standards to include the experiences of persons with disabilities and communities of color in K–12 curriculum.
The sample language on establishing a taskforce that is included below was adopted from H.R. 5286 STOP Bullying Act of 2019 sponsored by U.S. Representative Raja Krishnamoorthi (IL-8):
There is established a task force for the purpose of strengthening bullying and harassment prevention efforts across the state.
The task force shall evaluate and make recommendations on implementation of the [name of existing legislation];
To better facilitate community leadership in policy evaluation and development, legislators might consider adding specific language to enumerate participating individuals, and ensure inclusion for different voices and perspectives:
Chair – The Chief Education Officer shall designate one individual to serve as the chair of the task force. Composition – The Chair shall designate at least 11 additional task force members and at least one individual from each of the following categories to serve on the task force:
It is important that a process and timeline be established for reporting and publicizing task force recommendations to the Chief Education Officer, who has responsibility for overseeing the state’s bullying prevention efforts. Sample language on reporting to the Chief Education Officer is available here:
Each year the task force shall submit a report to the Chief Education Officer containing—
☐ to address and reduce bullying;
☐ to best educate all relevant school staff on recognizing bullying; and
☐ parents can best address and discuss with their children the early warning signs of bullying.
SEA Supports for LEA Policy Adoption and Implementation
Once legislation is passed, these laws often require LEAs to adopt a policy that incorporates all of the requirements of the state standards. This process authorizes and serves as a catalyst for implementation of the state law in schools under an LEA’s jurisdiction. A 2015 study conducted by GLSEN found that over 26% of LEAs had not adopted an anti-bullying policy as required by state law. In states with laws enumerating sexual orientation and gender identity, 38.7% and 60.3% of LEAs were not including similar protections in their policies, respectively.
SEAs can encourage and accelerate comprehensive LEA policy adoption and implementation at the school level by providing additional support. SEAs should author and disseminate a statewide model LEA policy and related guidance. GLSEN’s research shows that the availability of SEA guidance on adoption and implementation of anti-bullying and harassment laws was the strongest predictor of the inclusion of key characteristics (LGBTQ+ enumeration, professional development requirements, and accountability stipulations) in LEA policies. SEAs across the country have recognized the need to promulgate guidance to address the unique needs of students who are transgender, non-binary, gender-nonconforming and are protected under fully enumerated anti-bullying and harassment laws. In some states, including Maryland and Iowa, SEAs have developed data collection systems for statewide reporting on bullying and harassment incidences. At least two states — Illinois and Delaware — have created an inventory of all LEA bullying and harassment policies to help monitor and encourage policy adoption and implementation that is in alignment with state legislation.
Lawmakers might consider adding the following language from existing legislation to future bills to establish a process for collecting and providing technical assistance to LEAs on policy adoption using the following language from Illinois:
Every 2 years, each school district, charter school, and non-public, nonsectarian elementary or secondary school shall conduct a review and reevaluation of its policy and make any necessary and appropriate revisions. The policy must be filed with the State Board of Education, after being updated. The State Board of Education shall monitor and provide technical support for the implementation of policies
To effectively evaluate and establish accountability on making progress to make schools safer for all students, legislators might also consider incorporating elements from Maryland’s Safe Schools Reporting Act of 2005:
FOR the purpose of requiring the State Department of Education to require a county board of education to report certain incidents against certain students; authorizing certain persons to file a report regarding certain incidents; requiring the State Department of Education to create a standard victim of harassment or intimidation report form; providing for the contents and distribution of a certain form; requiring a county board to submit summaries of a certain form to the State Department of Education on or before a certain date each year; requiring a county board to delete identifying information from certain forms under certain circumstances; requiring the State Department of Education to submit a certain report on or before a certain date each year to certain committees consisting of certain information relating to victim of harassment or intimidation reports filed with county boards; providing for the termination of this Act; and generally relating to reporting incidents of harassment or intimidation of students at public schools
GLSEN (2020). Case Studies: State Education Agency Supports for Implementation of Enumerated Anti-bullying and Harassment Laws. Washington, DC: GLSEN.
Kull, R.M., Kosciw, J.G., & Greytak, E.A. (2015). From Statehouse to Schoolhouse: AntiBullying Policy Efforts in U.S. States and School Districts. New York: GLSEN
SANCTIONS & CIVIL LIABILITY
It is important to hold schools and districts accountable to the requirements laid out in the legislation. This section sets out how schools or districts will be investigated, notified, and held responsible for a failure to comply with the law. Additionally, it addresses the possibility of retaliation, ensuring that reporting parties are safe from retaliatory action.
- Allow for administrative sanctions, such as denial of funds for noncompliance.
- Ensure that the language does not limit current legal remedies.
- Create a provision for immunity, so that the Act encourages teachers who witness bullying to report it. Forbid reprisals or false accusations against those who bring complaints and witnesses.
Section 5. Sanctions and Civil Liability
A. Any district or school found or believed to be out of compliance shall be subject to investigation by the governing SEA. The SEA will issue a report, detailing guidance for compliance. Following such an investigation and report, a district or school shall be given one month to make appropriate changes to be in compliance with the law. Failing to make appropriate changes, the governing SEA will seek a court order declaring the school or district to be in violation of state law, thereby deeming the LEA ineligible for state funding.
B. This act is not intended to limit the rights of any individual currently available under any other available law, civil or criminal.
C. A school employee, student or volunteer shall not engage in reprisal, retaliation or false accusation against a victim, witness, or one with reliable information about an act of bullying or harassment.
Private Rights of Action
Legislators may decide to introduce bills that establish a private right of action that will allow students to seek legal recourse in response to failures to adhere to the requirements of anti-bullying and harassment laws. A court will typically not infer a private right of action where the legislation is not specific. Ideally, this provision should specify that monetary damages, injunctive relief, and any other appropriate relief may be awarded for a violation of the law. Additionally, the legislation should specify the standard of liability: school districts are liable for failing to effectively respond to incidents of bullying and harassment when the school had constructive notice of the incident or its effects and the incident or its effects are sufficiently severe or pervasive to deny a protected student equal access to educational opportunity. The knowledge of school personnel shall be imputed to the school and district.
It is important to note that including a private right of action in legislation has been met with opposition during previous efforts to pass anti-bullying and harassment laws, and involves addressing significant legal questions. In addition to addressing potential political concerns, legislators should seek consultations from local legal experts with subject matter expertise. Legal experts might provide helpful advice on making sure remedies specifically provided by the legislation do not waive student’s right to pursue other legal remedies. For example, the California law provides that, “It is the intent of the Legislature that … the remedies provided herein shall not be the exclusive remedies, but may be combined with remedies that may be provided by the above statutes. Cal. Educ. Code § 201(g).