A Word of Caution

No two cases are exactly alike. This material is designed to provide educators with a broad understanding of the law pertaining to certain aspects of FERPA. This material does not include every aspect of the law. You are strongly encouraged to seek a legal opinion from your school district's legal counsel regarding any specific case.

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I. OVERVIEW

The purpose of this material is to assist the educator in understanding the state's legal response to the problem of "bullying" in our public schools.

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II. Legislative History

In 2000 the state legislature adopted the Pupil Safety and Violence Prevention Act of 2000. See NH RSA 193-F:1, et seq. The Pupil Safety and Violence Prevention Act was a direct response to incident school violence which had occurred throughout our nation. Educators and lawmakers alike observed a persistent theme where the perpetrator of violence had been the victim of bullying in the school setting.

Recently, the legislature amended the Pupil Safety and Violence Prevention Act 2000 to mandate that schools provide a tangible remedy to the problem of bullying.

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III. The Purpose and Intent

In NH RSA 193-F:2 the legislature states that, "All pupils have the right to attend public schools that are safe, secure and peaceful. One of the legislature's highest priorities must be to protect our children from violence by dealing with harassment, including 'bullying', in our public schools." See NH RSA 193-F:2.

The purpose behind the Pupil Safety and Violence Prevention Act of 2000 is not only to ensure that public schools are safe, secure and peaceful, but also to avoid the creation of a persistently dangerous school. In 2003 the legislature adopted NH RSA 193-G:1 which identifies a "persistently dangerous school," for purposes of school choice under the No Child Left Behind Act. Once a school has been identified as a persistently dangerous school, the school has a duty to notify the parents of that school's status and to provide the parents or guardians of the pupil attending such school the option to transfer the pupil from the school to a school within the same school district, consistent with local school board policy. See NH RSA 193-G:4. In addition, if a student is a victim of certain enumerated crimes, the school district shall, within five days of being notified of the incident, notify the parents or guardians of the pupil of the option to transfer the pupil to another school within the same school district consistent with local school board policy.

In typical legislative fashion, homicide is included as one of the offenses allowing the victim to transfer schools. Obviously a school district cannot transfer the child who has been the victim of homicide. However, the other crimes, first or second degree assault, aggravated felonious sexual assault, arson, robbery or unlawful possession or sale of a firearm or other dangerous weapon, might very well give rise to a victim and the right to transfer. See NH RSA 193-G:4(II).

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IV. The Laws Pertaining to Pupil Safety and Violence Prevention

NH RSA 193-F:3 is the centerpiece of the Pupil Safety and Violence Prevention Act. The components of the Act are set forth below.

A. Adoption of a Pupil Safety and Violence Prevention Policy

The local school board is required to adopt a Pupil Safety and Violence Prevention Policy which addresses pupil harassment also known as "bullying," in a manner consistent with the provisions of the Pupil Safety and Violence Prevention Act. The policy must include language which details the action that will be taken by a local school board to resolve and remediate occurrences of pupil harassment. The New Hampshire School Administration Association has adopted a sample policy which has been attached as Exhibit A.⁽¹⁾

The school board's actions to resolve and remediate occurrences of pupil harassment need not be limited to traditional disciplinary action, but could include the following:

B. Notification Requirements

At the beginning of each school year, school districts are required to notify parents, legal guardians or "other persons responsible for the welfare of the pupil" of the district's Pupil Safety and Violence Prevention Policy and the process whereby disciplinary decisions and other actions taken by the school board to resolve and remediate pupil harassment can be appealed at the local and state level. Any:

who has witnessed or has reliable information that a pupil has been subjected to insults, taunts, or challenges, whether verbal or physical in nature which are likely to intimidate or provoke a violent or disorderly response that violates the school bullying policy shall report such incident to:

who shall in turn report the incident to the Superintendent and the school board.

The principal shall by telephone or in writing by first class mail report the occurrence of any incident of bullying or pupil harassment to the parent or legal guardian of all pupils involved within 48 hours of the occurrence of the incident. The notice shall advise the individuals involved of their due process rights, including the right to appeal to the State Board of Education.

C. Waiver of Notification

The Superintendent may within 48 hours of the event grant the principal a waiver from the notification requirement if the Superintendent deems such waiver to be in the best interest of the child. Any waiver granted shall be in writing.

D. The Local School Board's Duty to Remediate and Resolve Bullying

The school board is required to define within its policy the remedies available to respond to bullying. In addition, the school board is required to take specific action when it has been advised of an occurrence of pupil harassment. The board is also required to notify "all parties involved," of its decision.

If the local appeal process has been exhausted or the school board has exhausted its remedies under its local policy, the "aggrieved party," (which could be the victim or the bully) has the right to appeal the decision to the State Board of Education. The State Board of Education is required to notify all parties in writing of its decision.

E. Training

The local school board is authorized to provide opportunities for educators to have the knowledge and skills necessary to prevent and respond to acts covered under the subject of bullying or pupil harassment.

NH RSA 193-F:4 specifically indicates that there is no required curriculum or material with regard to the prevention of pupil harassment and that the failure to use a particular curriculum is not considered a violation of the Act.

F. Immunity and Liability Protection

Any school employee or employee of a company under contract with the school or school district who reports violations to the principal or who has intervened the bullying incident "shall be immune from any cause of action which may arise from the failure to remedy the reported incident." NH RSA 193-F:5 provides that "any public or private school employee or employee of a company under contract to a school or school district who in good faith has made a report under RSA 193-D (the Safe School Zones Act) or RSA 193-F (the Pupil Safety and Violence Prevention Act) is immune from liability for making the report.

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