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School Bullying and Education: The Safe Schools Improvement Act of 2010
Amara Chaudhry, Esq.
There has been significant press coverage lately of four student suicides which were caused by antigay bullying which, tragically, went too far. However, as the death of Phoebe Prince reminded us, school bullying is not solely a gay issue.
A U.S. Department of Education study found that bullying and harassment affect nearly one in every three American schoolchildren in the sixth through tenth grades. Another study estimated that 60,000 American students skip school each day because they fear being bullied.
Studies confirm that victims of bullying tend to disengage from school and suffer psychologically, academically, and physically, even into adulthood. The bullies themselves don't tend to fare much better as adults: they have higher rates of incarceration and more difficulty maintaining steady work and relationships.
On August 5, 2010, Senator Bob Casey and 10 cosponsors introduced Senate Bill 3739, the Safe Schools Improvement Act of 2010. Senate Bill 3739 sought to amend the No Child Left Behind Act (officially known as the Safe and Drug-Free Schools and Communities Act) by adding certain anti-bullying provisions. Significantly, many of the amendments insert the language “including bullying and harassment” after the word “violence” used in the statute.
The proposed legislation would require states to use grant money received pursuant to the Safe Schools and Communities Act to collect and report data regarding the incidence and prevalence of bullying and harassment to the U. S. Department of Education. Furthermore, schools would be required to use moneys received through subgrants to implement programs designed to prevent and respond to bullying and harassment.
At a minimum, these programs would provide annual notice to parents and students describing the full range of prohibited conduct, establish grievance procedures to register complaints, specify the name of the person responsible for receiving complaints, and establish timelines regarding the resolution of complaints.
Though the proposed Act has been criticized for “promoting a gay agenda,” the proposed Act does not apply only to bullying relating to sexual orientation. The proposed Act prohibits bullying and harassment related to a student’s actual or perceived race, color, national origin, sex, disability, sexual orientation, gender identity, religion, “any other distinguishing characteristics,” or association with a person or group with one of these enumerated characteristics. However, bullying and harassment which is not motivated by one of the enumerated categories is also not specifically prohibited by the Act.
Furthermore, the proposed Act may not offer victims of antigay bullying the same level of recourse afforded to other victims of bullying. The Act does not create a private cause of action, which would allow victims to initiate a law suit under the Act, but does preserve the legal remedies afforded by other federal and state nondiscrimination laws. Because there are no federal or state antidiscrimination laws prohibiting sexual orientation discrimination, students bullied because of actual or perceived sexual orientation would not have the same availability of legal recourse as other students.
Another criticism of the proposed Act suggests that anti-bullying legislation necessarily impedes free speech rights granted by the First Amendment. However, the proposed Act specifically provides that nothing in the Act shall limit the free speech rights granted by Federal law. Harassment is already a crime in most states, including Pennsylvania, notwithstanding the fact that the crime consists almost entirely of verbal acts.
