By Cynthia Price
Legal News
Bullying is a very serious and growing problem for young people, especially with the increase in communications technology giving bullies easier access to their prey.
Recognizing that “ground zero” for bullying activities is the school, Michigan has recently passed Act 241, the main provision of which is a mandate that all school districts have anti-bullying policies in place by the end of the 2011-2012 school year.
Over the last several years, as studies showed that bullying and cyber-bullying were proliferating at a rapid pace, the Michigan legislature and administration repeatedly considered and reconsidered what to do about it.
When anti-bullying legislation failed in 2010, there was a sense that its chances might be very slim in 2011. But it got new life when Gov. Rick Snyder prioritized it as part of his April education reform plan.
Upon signing the bill into law Dec. 6, 2011, Gov. Snyder said, “This legislation sends a clear message that bullying is wrong in all its forms and will not be tolerated. No child should feel intimidated or afraid to come to school.”
The Michigan Department of Civil Rights (MDCR) also had praise for the new law, known as Matt’s Safe School Law in honor of 14-year-old Matt Epling who killed himself after a physical bullying incident in 2002.
“All Michigan children have the right to go to school in safe environments where they are free to learn, grow and express themselves without fear,” stated MDCR Director Daniel H. Krichbaum at the time of the signing. “The legislation signed by Gov. Snyder today is an important step in achieving that goal.”
The MDCR had held public forums on the subject in Detroit, Grand Rapids, Marquette and Benton Harbor during 2011, and plans to continue public education on bullying.
As the 48th state to enact such a law, Michigan came late to the table. And even the process for passage of the current legislation was fraught with problems.
After the House introduced bipartisan-sponsored bill 4163, the Senate adopted a version that differed by adding the following language:
“(8) This section does not abridge the rights under the First Amendment of the Constitution of the United States or under Article I of the State Constitution of 1963 of a school employee, school volunteer, pupil, or a pupil’s parent or guardian. This section does not prohibit a statement of a sincerely held religious belief or moral conviction of a school employee, school volunteer, pupil, or a pupil’s parent or guardian.”
That language set off alarms for many advocates and “went viral” nationally, with some calling it a “license to bully.”
Advocates-in-the-making Katy Butler and Carson Borbely, two young students from Ann Arbor, decided to take matters into their own hands, using the technology available to them in a positive way.
They started a petition on the open website change.org asking people to sign if they supported asking the Senate to remove the offensive wording, telling their stories (Butler is a self-described lesbian and Borbely is transgendered) and stating, “We’re speaking out because we deserve a bill that will actually protect us at school, not make it more dangerous, or give bullies a free pass.”
Over 50,000 people signed the petition, while other advocacy staffers continued their work. The reconciled version of the bill which was enacted into law omitted that provision.
Commented Butler, “This bill was passed in the end without this language; however it was also passed without enumeration [of the protected] and without reporting requirements, which was not at all what I, Equality Michigan, Riot Youth, and many other people wanted.”
Some lawmakers were also disappointed in what they termed a weak bill.
Democratic Floor Leader Kate Segal, of Battle Creek, issued a press release stating “This new law could have gone much farther and offered better protection to all students who are bullied. I voted for it because... we could not go any longer without a law to encourage our children to come forward if they are being bullied, and to send a message to bullies that their behavior will not be tolerated.”
Segal says that she is hoping to address through the appropriations process one of the omissions she finds most glaring: that of a mandate to report on bullying statistics and anti-bullying progress.
“It was very frustrating not to be able to get that included, after hearing from the administration that they want to see lots of data,” she said. “We really need Michigan data. It would help parents and other students to know the extent of the problem.
“I intend to keep educating the public and other legislators to help them understand the scope of the problem and why a more stringent bill is needed to help protect our kids,” Segal pledges.
Among other problems with the law, Equality Michigan Director of Policy Emily Dievendorf says, “We would have liked to see it include a list of those disproportionately affected by bullying in the bill, as protected categories.”
Dievendorf indicates that she feels that drawing attention to “bullying based on bias” would help school administrators gain confidence in recognizing bullying, an effectiveness factor that many underestimate but has come out consistently in anti-bullying studies.
She also points to research that shows, “When you’re considering bullying that’s based on a person’s specific characteristics, for example, race, disability or sexual orientation, you’re looking at a different kind of damage done to that individual. These aren’t just any Michigan citizens, these are our kids, and they’re in the middle of their development. If they’re being bullied for who they are, psychologically they have a feeling of less value as a person.” Naming protected categories, as states such as Washington and Oregon have found out, makes for more effective intervention against bullying.
“The positive spin on the weak law is it requires the schools to have anti-bullying policies, and they can create strong policies,” Dievendorf says.
She praises the model anti-bullying policy that the Michigan State Board of Education has adopted.
The Michigan Department of Education website says that policy should “[m]ake a clear and unambiguous statement that all students be protected from bullying; and that no license is created (wittingly or unwittingly) that condones or accommodates bullying.” The model policy defines bullying as “any gesture or written, verbal, graphic, or physical act (including electronically transmitted acts – i.e., cyberbullying, through the use of internet, cell phone, ...PDA, computer, or wireless handheld device, currently in use or later developed and used by students) that is reasonably perceived as being
dehumanizing, intimidating, hostile, humiliating, threatening, or otherwise likely to evoke fear... and may be motivated either by bias or prejudice based upon any actual or perceived characteristic, such as
race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression; or a mental, physical, or sensory disability or impairment...”
School districts must hold at least one public hearing or meeting to get comments before adoption. However, if the district has a policy with all of the elements the new law requires, all the district has to do is submit a copy to the Department of Education.
While there is talk about Intermediate School Districts helping with the adoption process, it may be difficult for cash-strapped educational facilities to implement some of the law’s recommended bullying prevention programs and education.
However, attorney Gary L. Chamberlin of Miller Johnson in Grand Rapids (which also offers a model anti-bullying policy) noted in an online article he wrote for martindale.com that appropriations Act 62 of 2011 specifically offered funding for such programs listed in Section 388.1631a of the State School Aid Act.
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