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E-Alerts

More News From Massachusetts: Updates To Background Check Regulations And Expansion Of Anti-Bullying Legislation

[May 1, 2014]  Massachusetts independent schools should be aware that the Commonwealth has issued further guidance regarding criminal background check policies and procedures, including fingerprint-based checks, and also amended the Massachusetts anti-bullying law to expand the scope of its protections.  We recommend that independent schools review and update existing policies and practices to ensure compliance with these legislative and regulatory changes.

Implementation Of Background Check Policies And Procedures

The Massachusetts Department of Elementary and Secondary Education (“DESE”) has established a dedicated website in connection with the roll-out of the state’s new background check procedures, including an updated set of FAQs.

Of particular note, independent schools are required to have a policy in place that governs the use of background check information, including fingerprint-based check information, obtained for covered employees, volunteers and contractors.  We encourage schools to make sure that the development and adoption of a background check policy is on the agenda not only for school administrators but also for the Board of Trustees, either prior to the summer break or as an initial task once the academic year and board meetings resume in the fall.

For more information about DESE fingerprinting requirements and Schwartz Hannum’s criminal records compliance package, please see the White Paper that we provided to AISNE earlier this month (available here through AISNE’s website) and our recent E-Alert.

Expansion Of Anti-Bullying Statute

On April 24, 2014, Massachusetts Governor Deval Patrick signed into law House Bill No. 3909, “An Act Relative to Bullying in Schools” (the “Act”), which is scheduled to go into effect on July 23, 2014.  The Act expands the protections afforded to students in schools (including independent schools) and adds a data collection and reporting mechanism for certain schools to assist the Commonwealth in evaluating the effectiveness of anti-bullying efforts.

As a result of this legislative change, independent schools should review their existing bullying prevention and intervention plans to ensure that they are in compliance with the Act.  For a link to the Firm’s E-Alert discussing bullying prevention and intervention compliance in general, please click here.  Some of the most important changes brought about by the Act are detailed below.

Protected Characteristics.  Significantly, the Act explicitly requires that schools’ (including independent schools’) bullying prevention and intervention plans recognize that certain students may be more vulnerable to becoming targets of bullying or harassment based on actual or perceived characteristics.  These “protected characteristics” now include race, color, religion, ancestry, national origin, sex, socioeconomic status, homelessness, academic status, gender identity or expression, physical appearance, pregnancy or parenting status, sexual orientation, and mental, physical, developmental or sensory disabilities.  Notably, individuals who are associated with people with actual or perceived characteristics encompassed by the Act should also be covered by a bullying prevention and intervention plan.

A school’s plan must specify steps that the school is taking to support vulnerable students and to provide all students (victims, perpetrators and bystanders) with the skills, knowledge, and strategies needed to prevent or respond to bullying or harassment.

Data Collection And Reporting.  The Act requires certain schools (i.e., public schools, charter schools, approved private day or residential schools, and collaborative schools) to annually report bullying incident data to DESE.  Although many independent schools may not be covered by this particular provision, schools are likely to be covered if they are accepting, through an agreement with a school committee, a child requiring special education pursuant to applicable law.

As of now, bullying incident data reports must include (but need not be limited to): (a) the number of reported allegations of bullying or retaliation; (b) the number and nature of substantiated incidents of bullying or retaliation; and (c) the number of students disciplined for engaging in bullying or retaliation.  Further, bullying prevention and intervention plans must include procedures for collecting, maintaining, and reporting bullying incident data.  Each covered school (as described above) will also be required to administer a student survey (which is to be developed by DESE) to assess the school climate and the prevalence, nature, and severity of bullying within the school, at least once every four years.  DESE will be developing the required student survey by the summer of 2015.  We recommend that independent schools check with counsel to determine if they are obligated to comply with these additional reporting provisions.

Recommendations For Schools

In light of these developments, we recommend that independent schools promptly take the following measures:

  • Review, and update as necessary, criminal background check policies and procedures, including those relating to fingerprint-based checks;
  • Revise anti-bullying policies in student and employee handbooks (and on the school’s website) to comply with the Act’s delineation of protected characteristics, as well as to ensure compliance with the other recent amendments that expanded the scope of the law;
  • Revise student and employee handbooks with regard to bullying prevention, intervention and data-collection policies and reporting procedures, if applicable;
  • Regularly educate all faculty and staff members on bullying prevention and intervention, including their role in reporting incidents; and
  • Regularly educate students on how to prevent, identify, and remedy hazing, harassment, and bullying.

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Schwartz Hannum’s experienced roster of education attorneys is here to help with the development and implementation of background check policies and procedures for independent schools.  Also, please do not hesitate to contact us if you need assistance in updating your school’s bullying prevention and intervention plan and in educating the school community on preventing, investigating and remedying bullying and related conduct.