Iowa Safe Schools - Safe Schools Law

In 2007 the Iowa Legislature passed a new law¹ that requires school districts and accredited nonpublic elementary andsecondary schools to have anti-bullying/anti-harassment policies. Highlights of the new law include the following:

On or before September 1, 2007, the local school boards of all school districts and all accredited nonpublic schools were to adopt a board policy. The policy must include all of the following:

A definition of bullying and harassment. That definition must state substantially that harassment and bullying mean any electronic, written, verbal, or physical act or conduct toward a student which is based on any actual or perceived trait or characteristic of the student and which creates an objectively hostile school environment that meets one or more of the following conditions:

i. Places the student in reasonable fear of harm to the student’s person or property

ii. Has a substantially detrimental effect on the student’s physical or mental health;

iii. Has the effect of substantially interfering with the student’s academic performance; or

iv. Has the effect of substantially interfering with the student’s ability to participate in or benefit from the services, activities, or privileges provided by a school

A statement that students, staff, and volunteer² shall not engage in bullying and harassing behavior of students in school, on school property, or at any school function or school-sponsored activity.

A procedure for reporting acts of bullying or harassment, including the name or job title of the school official responsible for receiving and investigating such reports.

The policy must state that students will be protected from bullying and harassment based on any of the following traits or characteristics: age, color, creed, national origin, race,religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry,political party preference, political belief, socioeconomic status, and familial status. The school board may add to this list, but may not omit any of the listed traits from its local policy.

The policy must be publicized, but the law does not state how schools and school districts are to publish their policies. The most likely means of doing this will be in student handbooks or registration materials.

School officials must annually report incidents of bullying and harassment, and discipline of bullies, to the Iowa Department of Education. This is information available to the public, both from the schools and from the Department of Education.

While the law did not require that schools train their teachers and other staff inrecognizing and reacting appropriately to bullying and harassment, theIowa Department of Education, Iowa Association of School Boards, and other education groups strongly recommend that such training be provided. Even if training is not provided, schoolofficials should make sure that bus drivers, substitute teachers,volunteer coaches, support staff, etc., know about the school’s policy, know how to help if a student needs to make a complaint, and know how toreact if they witness bullying or harassment.³

1. First and most importantly, school officials need to comply with the new law becauseit’s the right thing to do. The law hasnothing to do with the personal beliefs of school board members or schoolofficials, and has everything to do with making sure that Iowa’s children feelsafe and respected, and are safe andrespected, in their schools. Bullying and harassment in the guise of “tradition” is still wrong, isstill harmful, and in some cases, is a crime.⁴

2. Then,there’s the very real fact that school officials can be held legallyresponsible if they are “deliberately indifferent” to a student who is beingharmed. But note that the legal liability aspect of protecting students frombullying and harassment did not change with the passage of the new law.

School officials stand in as “substitute parents” (the legal term is in locoparentis) while children are in school; therefore, school officials have always been expected to take reasonablesteps calculated to end or ease the bullying or harassment when the officialsknow or should know of such incidents. Obviously, when a complaint is made to a teacher or principal about anincident, the school is “on notice” and needs to act appropriately. But what does “should know” look like? Here’s an example:

At a private school in another state, a 1^stgrader was sexually abused by his teacher. Over the next two years, the 1^st grade teacher removed the student on a weekly basis from his 2^nd and 3^rd gradeclasses with no explanation and with the consent of those teachers! These teachers should have known that somethingwas amiss, and the court is allowing the parents’ lawsuit to proceed against the teachers personally for their failure to ask the simple question, “why doyou keep taking my student out of my classroom?"⁵

What does “deliberate indifference” look like? The classic case comes from the United States Supreme Court. A 5^th grade girl was being groped and subjected to verbal sexual harassment by a classmate. But every time she complained to the teacher, the teacher not only refused to do anything, the teacher forbade the girl to go to the office to talk to the principal about it. This was not an isolated instance. The harassment in this case went on for months. Knowledge without action is not only useless, it’s a lawsuit waiting to be filed.

Even before the new law was passed, schoolofficials were expected to protect a student from bullying and harassment basedon the student’s real or perceived sexual orientation. On the other hand, having sexual orientationmentioned in a school’s policy does not shield the school or its employees fromresponsibility if the policy is ignored. One of the most egregious cases of deliberate indifference to a gaystudent who was repeatedly harassed, assaulted, and mock-raped in classoccurred in a school district that had a board policy that pledged to protectstudents from harassment based on sexual orientation.⁶

Cyberbullying⁷ isanother form of bullying or harassment that is new to the law but for whichschool officials need to be vigilant and responsive. If the cyberbullying takes place off schoolpremises and does not create a substantial disruption to education or theschool’s operations, the school may not be able to suspend or otherwisediscipline the cyberbully. But it isalways appropriate for school officials to let the cyberbully – and his or herparents – know that the school is aware of his or her actions and to explorewith law enforcement officials whether any crime has been committed.⁸

3. Finally, compliance with having the required policy in place is an accreditation matter. The Iowa Department of Education has the responsibility of ensuring that all local school boards have passed the new policy. Failure to adopt the policy or failure to include required parts of the policy could subject the school district or nonpublic school run by the school board to removal of state accreditation. School improvement consultants from the Department of Education will work diligently with schools to make sure that removal of accreditation does not occur.

4. Never did I think I would quote “Dr.” Laura Schlesinger, but…”now, go do the right thing!”

[1] The law can be accessed electronically at http://coolice.legis.state.ia.us/Cool-ICE/default.asp?category=billinfo&service=billbook&GA=82&hbill=SF61. The law codifies new Iowa Code section 280.28; note that when the 2009 version of the Iowa Code is published, the law will be available electronically at http://www.legis.state.ia.us, click on 2009 Iowa Code and then search for chapter 280, section 28.

[2] A volunteer is defined in this law as a person with“regular, significant contact with students.” A parent who volunteers regularly in the library or classroom iscovered; concession stand workers and parents who chaperon one or two field trips annually are probably not covered.

[3] It’s also important to make sure that subs and support staff are made aware of “problem students.” When a kindergarten student was assaulted by a classmate, the school was successfully sued because no one warned the substitute teacher about the classmate’s sexually aggressive behavior. Miami-Dade CountySchool Board v. A.N., 905 S.2d 203(Fla. App. 3Dist. 2005).

[4] One subset of harassment is hazing. Hazing is a crime in Iowa, regardless of the“willingness” of the target of the hazing to participate.

[5] Doe v. Whitney,779 N.Y.S.2d 570 (N.Y.A.D. 2 Dept.2004).

[6] Nabozny v.Podlesny, 92 F.3d 446 (7^th Cir. 1996). This case features as a defendant the middleschool principal who asked the student, after he fled to her office from themock rape with a broom handle, “Well, what did you expect if you’re going to be openly gay?” The federal courts in Wisconsin awarded the student over $1M.

[7] This includes text messaging, instant messaging,e-mail, threatening content on web sites, and any electronic means that targets a student for harassment.

[8] In Iowa, some instances of cyberbullying are covered in the criminal code. School officials should consult their local county attorneys to see if a specific instance is a crime.