Reports of Incidents of Harassment, Bullying And/or Discrimination Pursuant to the Dignity for ...

NY-ADR

5/23/18 N.Y. St. Reg. EDU-21-18-00039-EP
NEW YORK STATE REGISTER
VOLUME XL, ISSUE 21
May 23, 2018
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
 
I.D No. EDU-21-18-00039-EP
Filing No. 452
Filing Date. May. 08, 2018
Effective Date. May. 08, 2018
Reports of Incidents of Harassment, Bullying And/or Discrimination Pursuant to the Dignity for All Students Act (DASA)
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Addition of section 100.2(kk)(1)(x) to Title 8 NYCRR.
Statutory authority:
Education Law, sections 11(1-7), 13(1), 14(3), 15(not subdivided), 16(not subdivided), 101(not subdivided), 207(not subdivided), 305(1), (2), 2854(1)(b); L. 2010, ch. 482
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The proposed amendment is necessary to implement Regents policy to add a new subparagraph (x) to include illustrative examples of the types of incidents of harassment, bullying and/or discrimination which shall be reported to the principal, superintendent or designee and may constitute a violation of the Dignity for All Students Act (DASA).
Since the Board of Regents meets at fixed intervals, the earliest the proposed rule can be presented for regular (non-emergency) adoption, after expiration of the required 60-day public comment period provided for in the State Administrative Procedure Act (SAPA) sections 201(1) and (5), would be the September 17-18, 2018 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed rule, if adopted at the September meeting, would be October 3, 2018, the date a Notice of Adoption would be published in the State Register. However, the proposed rule would further illustrate the types of incidents of harassment, bullying and/or discrimination which shall be reported to the principal, superintendent or designee when reported to or witnessed by a school employee. Therefore, emergency action is necessary at the May 2018 Regents meeting for the preservation of the general welfare in order to ensure that incidents of harassment, bullying and/or discrimination which may constitute a violation of the Dignity for All Students Act are promptly reported to the principal, superintendent or designee.
It is anticipated that the proposed rule will be presented for adoption as a permanent rule at the September 17-18, 2018 Regents meeting, which is the first scheduled meeting after expiration of the 60-day public comment period prescribed in SAPA for State agency rule makings.
Subject:
Reports of Incidents of Harassment, Bullying and/or Discrimination Pursuant to the Dignity for All Students Act (DASA).
Purpose:
To provide illustrative examples to the field to aid in the continued implementation of DASA.
Text of emergency/proposed rule:
Paragraph (1) of subdivision (kk) of section 100.2 of the Regulations of the Commissioner of Education is amended by adding a new subparagraph (x) as follows:
(x) For purposes of this section, a “report of harassment, bullying, and/or discrimination” means a written or oral report of harassment, bullying, and/or discrimination that could constitute a violation of the Dignity for All Students Act (article 2 of the Education Law). Such a report may include, but is not limited to, the following examples:
(a) a report regarding the denial of access to school facilities, functions, opportunities or programs including, but not limited to, restrooms, changing rooms, locker rooms, and/or field trips, based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
(b) a report regarding application of a dress code, specific grooming or appearance standards that is based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
(c) a report regarding the use of name(s) and pronoun(s) or the pronunciation of name(s) that is based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
(d) a report regarding any other form of harassment, bullying and/or discrimination, based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex.
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire August 5, 2018.
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, New York State Education Department, Office of Counsel, 89 Washington Avenue, Room 112, Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov
Data, views or arguments may be submitted to:
Renee Rider, Associate Commissioner, NYSED, Office of School Operations and Management Services, 89 Washington Avenue, 319M EB, Albany, NY 12234, (518) 474-4817, email: REGCOMMENTS@nysed.gov
Public comment will be received until:
60 days after publication of this notice.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law section 11, as added by section 2 of Chapter 482 of the Laws of 2010 (Dignity for All Students Act – DASA) establishes definitions for purposes of the new Article 2 of the Education Law added by such statute.
Education Law section 13, requires school districts to create policies, procedures and guidelines intended to create a school environment that is free from harassment, bullying and discrimination, including provisions related to making and receiving reports of harassment, bullying and discrimination and the investigation of such reports.
Education Law section 14, requires the Commissioner to promulgate regulations to assist school districts in implementing DASA.
Education Law section 15, requires the Commissioner to create a procedure under which material incidents of harassment, bullying or discrimination on school grounds or at a school function are reported to the State Education Department at least on an annual basis. The procedure shall provide that such reports shall, wherever possible, also delineate the specific nature of such incidents of harassment, bullying or discrimination.
Education Law section 16, under certain specified conditions, immunity from civil liability on persons reporting discrimination or harassment of students by a school employee or student. The statute further provides that no school district or employee shall take, request or cause a retaliatory action against a person, acting reasonably and in good faith, who makes such report or who initiates, testifies, participates or assists in any formal or informal proceeding under Education Law Article 2.
Education Law section 101 continues the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges the Department with the general management and supervision of public schools and the educational work of the State.
Education Law section 207 grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.
Education Law section 305(1) empowers the Commissioner of Education to be the chief executive officer of the State system of education and the Board of Regents and authorizes the Commissioner to enforce laws relating to the educational system and to execute educational policies determined by the Board of Regents. Education Law section 305(2) authorizes the Commissioner to have general supervision over all schools subject to the Education Law.
Education Law section 2854(1)(b) provides that charter schools shall meet the same health and safety, civil rights, and student assessment requirements applicable to other public schools, except as otherwise specifically provided in Article 56 of the Education Law.
2. LEGISLATIVE OBJECTIVES:
Consistent with the above statutory authority, the proposed rule is necessary to implement Regents policy and the Dignity for All Students Act to further clarify reports of incidents of harassment, bullying and/or discrimination pursuant to DASA.
3. NEEDS AND BENEFITS:
In 2010, DASA added a new Article 2 to the Education Law to require, among other things, school districts to create policies and guidelines to be used in school training programs to discourage harassment, bullying, and/or discrimination and to enable school personnel to prevent and respond to discrimination or harassment. DASA became effective on July 1, 2012, and was later amended to include cyberbullying, effective July 1, 2013. Subsequently, the Department worked with key stakeholders through the DASA Task Force to develop and implement guidance and regulations to assist schools in implementing the provisions of the law. Since the adoption of Commissioner’s Regulations to implement DASA, the Department has worked to provide training to the field, updates to the DASA website, and several guidance documents.
DASA continues to be a powerful tool used to address bullying, discrimination, and harassment in our schools and to ensure that all students are educated in a safe and supportive school environment. However, the issues faced by students and schools in this area continue to evolve. The Department is committed to working with stakeholders to ensure that all students have the opportunity to learn and to attend school free from bullying, harassment, and/or discrimination.
To that end, in July 2015, the Department issued guidance, entitled “Creating a Safe and Supportive School Environment for Transgender and Gender Nonconforming Students”, to assist school districts in fostering an educational environment for all students that is safe and free from harassment, bullying, and discrimination — regardless of sex, gender identity, or expression — and to facilitate compliance with local, state, and federal laws concerning bullying, harassment, discrimination, and student privacy. At the time the guidance document was issued, the Department received national recognition for the proactive nature of the guidance to protect transgender and gender non-conforming students. In May 2016, this work was highlighted by the United States Department of Education as a sample policy designed to address bullying, discrimination, and/or harassment of transgender and gender non-conforming students.
In August 2016, Commissioner Elia, in partnership with Attorney General Schneiderman, issued a memorandum, guidance, and model materials to assist school districts in complying with DASA. That guidance provided school districts with model forms to assist with investigating and verifying reports of bullying, harassment, and/or discrimination.
In October 2017, the Office of the State Comptroller (OSC) issued an audit report entitled “Implementation of the Dignity for All Students Act”. While OSC noted the efforts made by the Department to provide professional development and technical assistance and the efforts of school districts throughout the State to comply with DASA, OSC’s findings also revealed a need to provide additional guidance and training to the field, particularly in the area of identifying, documenting, investigating, and reporting DASA incidents.
In February 2017, the Commissioner again issued a joint memorandum with the Attorney General to remind school districts of the obligation to protect transgender students from bullying, discrimination, and harassment in their schools and at all school functions, despite actions taken by the United States Department of Education (USDOE) and the United States Department of Justice (USDOJ) to rescind previously issued guidance surrounding the protection of transgender and gender non-conforming students. In response to USDOE’s confirmation in February 2018 that it would no longer investigate civil rights complaints from transgender students denied access to bathrooms consistent with their gender identity, the Commissioner and the Attorney General issued another joint memorandum to school districts in which they reiterated New York’s commitment to creating safe and supportive learning environments for all New York students and school district’s obligation to comply with DASA.
The research shows that bullying and school climate are linked to children’s academic achievement, learning, and development. Specifically, children who are bullied are more likely to avoid school, more likely to drop out of school, have lower academic achievement, have lower self-esteem and higher levels of anxiety, depression and loneliness, and are more likely to attempt suicide, both during childhood and later in life. A recent national survey of school climate found that more than 80 percent of lesbian, gay, bisexual, and transgender (LGBT) youth reported some form of bullying or harassment at school. These concerns are especially urgent for transgender students for whom the data indicates that 1 in 2 transgender students have had at least one suicide attempt by their twentieth birthday.
As a result of these developments, Department staff proposes to amend Commissioner's Regulation § 100.2(kk)(1) to include illustrative examples of the types of incidents of harassment, bullying and/or discrimination which must be reported to the principal, superintendent. or designee when reported to or witnessed by a school employee. Specifically, the proposed amendment includes a definition of “report of harassment, bullying, and/or discrimination” to include, but not be limited to, the following examples:
• a report regarding the denial of access to school facilities, functions, opportunities or programs including, but not limited to, restrooms, changing rooms, locker rooms, and/or field trips, based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
• a report regarding application of a dress code, specific grooming or appearance standards that is based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
• a report regarding the use of name(s) and pronoun(s) or the pronunciation of name(s) that is based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
• a report regarding any other form of harassment, bullying, and/or discrimination, based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex.
The Department remains committed to working with all partners throughout the State to ensure that all students have an opportunity to thrive in a school environment that is safe, supportive and free from bullying, harassment, and/or discrimination. We will continue to support district administrators and school staff as they continue to take proactive steps to create a positive school culture and climate in which students feel safe and supported, and fully included. The proposed amendment to Commissioner’s Regulations § 100.2(kk)(1) is intended to support these efforts by clarifying and assisting in DASA implementation statewide.
4. COSTS:
(a) Costs to State government: None.
(b) Costs to local government: None.
(c) Costs to private regulated parties: None.
(d) Costs to regulating agency for implementation and continued administration of this rule: None.
The proposed rule is necessary to clarify the regulation to provide illustrative examples to the field to aid in the continued implementation of DASA pursuant to Education Law § 14(3) and will not impose any additional costs on the State, school districts, BOCES and charter schools, or the State Education Department, beyond those imposed by the statute.
5. LOCAL GOVERNMENT MANDATES:
The proposed rule is necessary to clarify the regulation to provide illustrative examples to the field to aid in the continued implementation of DASA pursuant to Education Law § 14(3). Additionally, Education Law § 13 requires that districts have a process for receiving reports of and investigating oral or written reports of harassment, discrimination and/or bullying. As such the clarifying amendments will not impose any additional program, service, duty or responsibility beyond those imposed by the statute.
6. PAPERWORK:
The proposed rule does not impose and new paperwork requirements beyond those already required by statute, but merely provides illustrative examples of the types of harassment, bullying and/or discrimination which must be reported to the principal, superintendent, or designee when reported to or witnessed by a school employee.
7. DUPLICATION:
The proposed rule does not duplicate existing State or Federal regulations.
8. ALTERNATIVES:
The proposed rule is necessary to implement Regents policy related to providing illustrative examples of the types of harassment, bullying and/or discrimination which must be reported to the principal, superintendent, or designee when reported to or witnessed by a school employee in compliance with DASA. There are no viable alternatives and none were considered.
9. FEDERAL STANDARDS:
There are no related Federal standards.
10. COMPLIANCE SCHEDULE:
The proposed rule is necessary to provide illustrative examples of the types of harassment, bullying and/or discrimination which must be reported to the principal, superintendent, or designee when reported to or witnessed by a school employee in compliance with DASA. Because the rule merely provides additional illustrative examples, it is anticipated that regulated parties will be able to achieve compliance with proposed rule by its effective date.
Regulatory Flexibility Analysis
(a) Small businesses:
The proposed rule is necessary to clarify the regulation to provide illustrative examples to the field to aid in the continued implementation of DASA pursuant to Education Law § 14(3). Additionally, Education Law § 13 requires that districts have a process for receiving reports of and investigating oral or written reports of harassment, discrimination and/or bullying.
Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
(b) Local governments:
1. EFFECT OF RULE:
The proposed amendment applies to each school district, BOCES and charter school in the State pursuant to Education Law Article 2.
2. COMPLIANCE REQUIREMENTS:
In 2010, DASA added a new Article 2 to the Education Law to require, among other things, school districts to create policies and guidelines to be used in school training programs to discourage harassment, bullying, and/or discrimination and to enable school personnel to prevent and respond to discrimination or harassment. DASA became effective on July 1, 2012, and was later amended to include cyberbullying, effective July 1, 2013. Subsequently, the Department worked with key stakeholders through the DASA Task Force to develop and implement guidance and regulations to assist schools in implementing the provisions of the law. Since the adoption of Commissioner’s Regulations to implement DASA, the Department has worked to provide training to the field, updates to the DASA website, and several guidance documents.
DASA continues to be a powerful tool used to address bullying, discrimination, and harassment in our schools and to ensure that all students are educated in a safe and supportive school environment. However, the issues faced by students and schools in this area continue to evolve. The Department is committed to working with stakeholders to ensure that all students have the opportunity to learn and to attend school free from bullying, harassment, and/or discrimination.
To that end, in July 2015, the Department issued guidance, entitled “Creating a Safe and Supportive School Environment for Transgender and Gender Nonconforming Students”, to assist school districts in fostering an educational environment for all students that is safe and free from harassment, bullying, and discrimination — regardless of sex, gender identity, or expression — and to facilitate compliance with local, state, and federal laws concerning bullying, harassment, discrimination, and student privacy. At the time the guidance document was issued, the Department received national recognition for the proactive nature of the guidance to protect transgender and gender non-conforming students. In May 2016, this work was highlighted by the United States Department of Education as a sample policy designed to address bullying, discrimination, and/or harassment of transgender and gender non-conforming students.
In August 2016, Commissioner Elia, in partnership with Attorney General Schneiderman, issued a memorandum, guidance, and model materials to assist school districts in complying with DASA. That guidance provided school districts with model forms to assist with investigating and verifying reports of bullying, harassment, and/or discrimination.
In October 2017, the Office of the State Comptroller (OSC) issued an audit report entitled “Implementation of the Dignity for All Students Act”. While OSC noted the efforts made by the Department to provide professional development and technical assistance and the efforts of school districts throughout the State to comply with DASA, OSC’s findings also revealed a need to provide additional guidance and training to the field, particularly in the area of identifying, documenting, investigating, and reporting DASA incidents.
In February 2017, the Commissioner again issued a joint memorandum with the Attorney General to remind school districts of the obligation to protect transgender students from bullying, discrimination, and harassment in their schools and at all school functions, despite actions taken by the United States Department of Education (USDOE) and the United States Department of Justice (USDOJ) to rescind previously issued guidance surrounding the protection of transgender and gender non-conforming students. In response to USDOE’s confirmation in February 2018 that it would no longer investigate civil rights complaints from transgender students denied access to bathrooms consistent with their gender identity, the Commissioner and the Attorney General issued another joint memorandum to school districts in which they reiterated New York’s commitment to creating safe and supportive learning environments for all New York students and school district’s obligation to comply with DASA.
The research shows that bullying and school climate are linked to children’s academic achievement, learning, and development. Specifically, children who are bullied are more likely to avoid school, more likely to drop out of school, have lower academic achievement, have lower self-esteem and higher levels of anxiety, depression and loneliness, and are more likely to attempt suicide, both during childhood and later in life. A recent national survey of school climate found that more than 80 percent of lesbian, gay, bisexual, and transgender (LGBT) youth reported some form of bullying or harassment at school. These concerns are especially urgent for transgender students for whom the data indicates that 1 in 2 transgender students have had at least one suicide attempt by their twentieth birthday.
As a result of these developments, Department staff proposes to amend Commissioner's Regulation § 100.2(kk)(1) to include illustrative examples of the types of incidents of harassment, bullying and/or discrimination which must be reported to the principal, superintendent. or designee when reported to or witnessed by a school employee. Specifically, the proposed amendment includes a definition of “report of harassment, bullying, and/or discrimination” to include, but not be limited to, the following examples:
• a report regarding the denial of access to school facilities, functions, opportunities or programs including, but not limited to, restrooms, changing rooms, locker rooms, and/or field trips, based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
• a report regarding application of a dress code, specific grooming or appearance standards that is based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
• a report regarding the use of name(s) and pronoun(s) or the pronunciation of name(s) that is based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
• a report regarding any other form of harassment, bullying, and/or discrimination, based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex.
The Department remains committed to working with all partners throughout the State to ensure that all students have an opportunity to thrive in a school environment that is safe, supportive and free from bullying, harassment, and/or discrimination. We will continue to support district administrators and school staff as they continue to take proactive steps to create a positive school culture and climate in which students feel safe and supported, and fully included. The proposed amendment to Commissioner’s Regulations § 100.2(kk)(1) is intended to support these efforts by clarifying and assisting in DASA implementation statewide.
3. PROFESSIONAL SERVICES:
The proposed rule does not impose any additional professional services requirements on local governments.
4. COMPLIANCE COSTS:
The proposed rule is necessary to clarify the regulation to provide illustrative examples to the field to aid in the continued implementation of DASA pursuant to Education Law § 14(3). Additionally, Education Law § 13 requires that districts have a process for receiving reports of and investigating oral or written reports of harassment, discrimination and/or bullying. As such the clarifying amendments will not impose any additional program, service, duty, responsibility or costs beyond those imposed by the statute.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any new technological requirements on school districts or charter schools. Economic feasibility is addressed in the Costs section above.
6. MINIMIZING ADVERSE IMPACT:
There were no significant alternatives and none were considered. The proposed rule is necessary to clarify the regulation to provide illustrative examples to the field to aid in the continued implementation of DASA pursuant to Education Law § 14(3). Additionally, Education Law § 13 requires that districts have a process for receiving reports of and investigating oral or written reports of harassment, discrimination and/or bullying. As such the clarifying amendments will not impose any additional program, service, duty or responsibility beyond those imposed by the statute.
Because the statute upon which the proposed amendment is based applies to all school districts in the State and to charter schools and registered nonpublic high schools, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt schools from coverage by the proposed amendment.
7. LOCAL GOVERNMENT PARTICIPATION:
Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, from the chief school officers of the five big city school districts and from charter schools.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:
The proposed amendment applies to each of the 689 public school districts in the State, charter schools, and registered nonpublic schools in the State, to the extent that they offer instruction in the high school grades, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less. At present, there is one charter school located in a rural area that is authorized to issue diplomas.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed rule is necessary to clarify the regulation to provide illustrative examples to the field to aid in the continued implementation of DASA pursuant to Education Law § 14(3). Additionally, Education Law § 13 requires that districts have a process for receiving reports of and investigating oral or written reports of harassment, discrimination and/or bullying. As such the clarifying amendments will not impose any additional reporting, recordkeeping or professional service beyond those already imposed by the statute.
3. COMPLIANCE COSTS:
None.
4. MINIMIZING ADVERSE IMPACT:
There were no significant alternatives and none were considered. The proposed rule is necessary to clarify the regulation to provide illustrative examples to the field to aid in the continued implementation of DASA pursuant to Education Law § 14(3). Additionally, Education Law § 13 requires that districts have a process for receiving reports of and investigating oral or written reports of harassment, discrimination and/or bullying. As such the clarifying amendments will not impose any additional program, service, duty or responsibility beyond those imposed by the statute.
Because the statute upon which the proposed amendment is based applies to all school districts in the State and to charter schools and registered nonpublic high schools, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt schools in rural areas from coverage by the proposed amendment.
5. RURAL AREA PARTICIPATION:
Comments on the proposed rule were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.
Job Impact Statement
The proposed amendment is necessary to The proposed rule is necessary to clarify the regulation to provide illustrative examples to the field to aid in the continued implementation of DASA pursuant to Education Law § 14(3).
The proposed amendment will not have a substantial adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have no impact, or a positive impact, on jobs or employment opportunities, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
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