Advocacy in Action
Navigating School Safety Law and Policy
By Kelly Vaillancourt & Eric Rossen
Initiatives designed to improve school safety and conditions for learning have become central to education reform efforts at the local, state, and national levels. These efforts often target the reduction and prevention of bullying, discrimination, and harassment in schools. While most states currently have some form of law or policy designed to address these issues, a great deal of variability exists among them at the state and district levels. Furthermore, those responsible for providing services (e.g., school psychologists) can easily lose track of what laws and policies they must follow. Therefore, this article provides a general description of the relationship between policy and law and how federal and state policies and laws impact local practices related to school safety.
Differences Between Law and Policy
The main differences between a law and a policy are who can create them and who can enforce them. A law is legally enforceable by the judicial system and is created by a local (e.g., counties, townships, cities), state, or federal legislative body. Local laws typically address issues such as building codes, local taxes, and public health and safety. They cannot be weaker than state law, and in some instances they are stricter. For example, many states have laws that prohibit the use of a cell phone while operating a vehicle. Many cities have a stricter law that prohibits the use of a cell phone not only while driving, but also when the car is on. State laws are created by state legislatures, signed into law by the governor, and must not conflict with an existing federal law or violate the U.S. Constitution. Federal laws and the U.S. Constitution supersede state laws when regulating the same activity. In cases where local or state law is believed to be in conflict with a federal law or the U.S. Constitution, the issue is decided by the federal court system.
A policy, on the other hand, provides a set of rules or guidelines that are meant to guide behavior or practices and are enforceable by the body that created it, rather than the judicial system. Some policies are created in the absence of legislation. For example, school districts often have policies related to dress code, employee conduct, and appropriate use of school-owned technology. An employee who violates these policies would potentially be subject to consequences determined by the school board (e.g., termination of employment) rather than the judicial system.
Policies are also created in response to legislation. For example, Delaware bullying legislation requires that “each school have a procedure for the administration to promptly investigate in a timely manner and determine whether bullying has occurred” (Del. Code. Ann. Tit. 14, §4112D). In response to this state law, districts and schools in Delaware must develop policies that outline the specific procedures and time lines for investigating incidences of bullying that administrators should adhere to. These procedures could vary across districts, and in this case, the law only requires creation of a policy or procedure; however, the law does not specify or require particular components of the policy (e.g., staff training, disciplinary response, parent communication).
To assist in the implementation of a law, states or the federal government may create model policies to provide guidance as well as a set of recommended standards for schools and districts to use when creating more local-level policy. Local education agencies are not required to adhere to model policies, although the policy they create must comply with state or federal law. Furthermore, some model policies do not relate to a specific piece of legislation, but are created due to increased attention and concern regarding a specific issue. For example, as of August 2012, Montana had a model state antibullying policy that schools are expected to follow despite the absence of state antibullying legislation.
State Legislation Related to Bullying and School Safety
As of September 2012, 49 states, Puerto Rico, and the District of Columbia have some form of antibullying legislation in place. Many of these also provide a state-level model policy (see www.stopbullying.gov for an up-to-date listing of states with bullying legislation and model policies). However, these laws and policies vary significantly in content and structure. In response to this variability and requests for assistance regarding appropriate legislation and policy, the Department of Education released a technical assistance memo detailing 11 key components found in state antibullying laws (U.S. Department of Education, 2011):
- Purpose statement
- Statement of scope
- Specification of prohibited conduct
- Enumeration of specific characteristics
- Development and implementation of local education agency (LEA) policies
- Components of LEA policies
- Review of local policies
- Communication plan
- Training and preventative education
- Transparency and monitoring
- Statement of rights to other legal recourse
Please visit http://www.stopbullying.gov/laws/key-components/index.html for a comprehensive description of each of these components as well as specific examples from state law and policy.
To date, extensive examination of the effectiveness of antibullying legislation and policy as they relate to the inclusion of each of these components has not been conducted. Some states have antibullying legislation, policies, or both that include many of these components. Others contain few of these components, but the ability to compare the effectiveness of the various components is limited due to the variability of school districts' implementation and enforcement of antibullying policies. It is also difficult to control for the various factors that influence bullying behavior, both at the individual student and systemic level. For more information about bullying legislation and policy in your state, visit http://www.stopbullying.gov/laws/index.html.
Federal Legislation Related to School Safety
Discrimination, bullying, and harassment are terms that have distinct meanings yet are often used interchangeably. Discrimination is the prejudicial treatment of a person based on his or her real or perceived membership in certain groups (e.g., those based on race, sex, national origin). Harassment, like bullying, can take many forms, including verbal acts or behaviors intended to be threatening, harmful, or humiliating. However, unlike bullying, harassment does not have to include the intent to harm, be directed at a specific target, or involve repeated incidents. Although definitions of bullying often include discrimination or harassment, incidences of discrimination or harassment do not necessarily constitute bullying. To add to the confusion, federal legislation prohibits discrimination and harassment based on certain characteristics; however, incidents of bullying are only legally prohibited in certain states rather than through federal law.
Existing legislation. Despite having no federal definition of bullying or federal laws that specifically address bullying, some key pieces of legislation enforced by the Department of Civil Rights that relate to discrimination and harassment in schools could also apply to incidences of bullying and school safety. Specifically, Title IV of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin. Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex, and Section 504 of the Rehabilitation Act of 1973 as well as Title II of the Americans with Disabilities Act of 1990 prohibit discrimination on the basis of disability. Peer harassment based on race, color, national origin, or disability that creates a hostile environment can lead to schools being in violation of these laws if not adequately addressed by school employees (U.S. Department of Education Office of Civil Rights, 2010).
Not all incidences of harassment can be considered bullying (e.g., harassment does not always contain an imbalance of power or the intent to harm). However, the label used to describe the incident is irrelevant: If the basis of the discriminatory or harassing behavior was race, color, national origin, sex, or disability, the school is obligated to respond. For example, a student with a learning disability complained to his teachers that some of his classmates frequently call him “stupid” and “idiot,” both at school and on the school bus. On one occasion, these same students tackled him and threw his notebook in the trash. The student was offered counseling and a psychiatric evaluation, but the situation was not investigated and the accused students were not disciplined. As a result, the harassment continued, the student's academic performance declined, and he often refused to go to school. In this case, the school is in violation of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act for failing to recognize the behavior as disability harassment and for failing to investigate and take steps to remedy the conduct and eliminate the hostile environment. On the other hand, if the targeted student did not have a disability, these laws may not have applied.
Proposed legislation. Due to the variability in state antibullying legislation, the confusion among terminology (i.e., discrimination, harassment, and bullying), and misunderstandings regarding who is afforded legal protections, two pieces of legislation have been introduced: The Safe Schools Improvement Act (H.R. 1658/S.506) and the Student Nondiscrimination Act (H.R 998/S. 555). The former would establish a federal definition of bullying and harassment in federal law and require that all schools receiving federal funding prohibit bullying and harassment, including conduct based on a student's actual or perceived race, color, national origin, sex, disability, religion, sexual orientation, or gender identity. It would also encourage schools and districts to focus on effective prevention strategies and professional development to address bullying and harassment as well as establish systems for reporting and responding to incidences of bullying. The proposed Student Nondiscrimination Act includes bullying and harassment as examples of discrimination and extends the same discrimination protections currently in place under Title IX to those students targeted based on real or perceived sexual orientation or gender identity.
What Can You Do?
Advocacy at the local level is critical because it helps shape how policy and law enacted at the state and federal levels are translated into practice. Furthermore, local advocacy at the school and district levels helps inform the development of effective state or federal policies by creating examples of effective policies in practice. NASP recently released A Framework for School-Wide Bullying Prevention and Safety (Rossen & Cowan, 2012) to help support local advocacy efforts and drive policy reform. Read this document and share it with school, district, and state level administrators. This can be an excellent way to begin a dialogue about how to implement or improve upon initiatives designed to prevent bullying and improve school safety. At the state and federal level, the easiest and fastest way to advocate for legislation promoting school safety is to visit the NASP Advocacy Action Center (http://capwiz.com/naspweb/home) and send a letter to your elected officials. Importantly, legislation and policy is only effective if it translates into effective practices within schools and school districts. Please visit http://www.nasponline.org/advocacy/index.aspx for additional information and advocacy resources related to school safety. You may also contact Kelly Vaillancourt, Director of Government Relations (firstname.lastname@example.org) or John Kelly, Chair, Government and Professional Relations Committee ( email@example.com).
Rossen, E., & Cowan, K. C. (2012). A framework for school-wide bullying prevention and safety [Brief]. Bethesda, MD: National Association of School Psychologists.
United States Department of Education Office for Civil Rights. (2010). Dear colleague letter: Harassment and bullying. Retrieved from http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf
United States Department of Education, Office of Planning, Evaluation and Policy Development, Policy and Program Studies Service. (2011). Analysis of state bullying laws and policies. Washington, DC: Author.
Kelly Vaillancourt, PhD, NCSP, is NASP Director of Government Relations. Eric Rossen, PhD, NCSP, is NASP Director of Professional Development and Standards.