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A higher standard
Freedman explains state’s new anti-bullying law
Come July 1, public school students in New York State will have new legal defenses against the perennial problem of bullying—and school districts will have new challenges in living up to the spirit of those laws, a UB Law School adjunct professor says.
Andrew J. Freedman, JD ‘96, who practices education law as a partner with the Buffalo firm Hodgson Russ, recently spoke to about 50 people at the Law School. His presentation, “School Bullying, Cyberbullying and Sexting,” detailed the state’s new Dignity for All Students Act, which was signed into law in 2010 and takes effect in advance of the school year that begins this fall.
Freedman, who said he represents nearly 100 school districts throughout Western New York, said the new law, known as DASA, is intended to provide a safe learning environment for public school students. “Our Legislature really took a hard look at how we are going to prevent harassment and bullying in schools,” he said. The legislative intent, he said, was to recognize that “students’ ability to learn is being compromised by incidents of discrimination or harassment, including bullying, taunting or intimidation. They said that we need to afford all students in schools an environment free of discrimination and harassment. That’s a pretty high duty.”
Under DASA, Freedman said, prohibited harassment is understood as “the creation of a hostile environment by conduct or by verbal threats, intimidation or abuse that has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being.”
The act also establishes a wide array of protected classes, barring discrimination based on race, color, weight, national origin, ethnic group, religion, disability, sexual orientation and gender.
The new law supersedes a standard set in a 1998 case in the U.S. Supreme Court. That case set a high bar for when school districts may be held liable for physical and emotional injuries to students, saying that districts must be shown to have been “deliberately indifferent” to complaints of bullying or other harassment.
Instead, DASA requires that school employees be trained in how to prevent and respond to discrimination and harassment, and that schools produce clear codes of conduct in age-appropriate language.
Implementing the act, Freedman said, will place significant burdens on school districts, including perhaps increased exposure to lawsuits by parents contending that their children aren’t being properly protected from bullies. “It really could have a big impact,” he said. “We should see a big increase in discipline next year. Once plaintiff’s attorneys get hold of this, you may be seeing billboards asking, ‘Are you being bullied?’
“DASA is not the panacea for every problem here,” he added. “It’s only applicable to school property or school functions. DASA may not cover the harassment that may occur on Facebook.”
In New York State, he said, other legal remedies exist for that kind of extracurricular harassment. “Let’s say a student has a Facebook page and on the page starts a new group, ‘Students Who Want to Beat Up Andrew Freedman.’ Over 200 students sign up for the group, so I’m really scared to walk into school. In New York, the school can discipline the student for this—but not over the border in Pennsylvania.
“We’re given pretty wide latitude in this area. Just because DASA does not apply to off-campus behavior, our commissioner of education has said we can discipline for that off-campus behavior.”
But, he asserted, “Schools are just that—we’re schools. We’re not the policemen of the world. That’s a real fine line. Some school districts are getting involved with Facebook and off-campus behavior, and some are choosing not to. If someone’s off campus and writing ‘I’m going to kill you’ on Facebook, that’s a criminal behavior. True threats are not entitled to protection under the First Amendment.”
On the recent phenomenon of sexting—students’ sending naked photos to each other, often as a form of flirtation—Freedman said: “Parents need to impress upon their children that you’ve got to be really careful with how you use technology. Sending sexually explicit photos to one another is a violation of state law and it could be a violation of federal child pornography laws and laws against the transmission of pornography.
“It’s so destructive that school districts are sometimes a bit reticent to report it,” he said. “If we go reporting this to the police, the FBI is called in. A lot of times school districts feel uncomfortable about possibly ruining someone’s life for one picture.”
Freedman’s presentation was sponsored by the Buffalo Human Rights Center and the Jean M. Alberti Center for the Prevention of Bullying Abuse and School Violence, part of UB’s Graduate School of Education.
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