The Difference Between Bullying and Harassment in Massachusetts

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• Harassment vs. Bullying Protections

It’s easy to make the mistake of thinking the number of complaints and disciplinary issues at schools have never been higher. They’ve always been high, says Judy A. Levenson, an education attorney in Brookline. The reason it feels like there’s more today is because the expectations and laws have shifted to make schools more responsible for taking action. “More recently, in my work with K-12 schools nationally, there’s been an alarming increase in the number of reported incidents based on gender, race, sexual orientation and other protected classes,” says Levenson, who represents schools and districts in litigation and investigations. “And a lot of schools are finding it’s occurring at younger and younger ages. For example, in some of my schools, there have been repeat incidents of kids using swastikas at a young age—they’ve marked it in the playground or bathroom stalls. But it also turns out that while these kids know that the swastika is something bad, they don’t know what it is. It’s a generation that really doesn’t necessarily have that history or firsthand knowledge.” It’s a good example for this area of law because, while taking action may seem straightforward, it’s often anything but. This is why Levenson has shifted her work in recent years to coordinate trainings for staff members. “The focus of the anti-bullying laws and the focus of civil rights laws is different,” she says. “It can be overlapping, and the overlap between bullying and harassment can be confusing.”

Harassment vs. Bullying Protections

Harassment often falls under anti-discrimination laws, Levenson says, but if a bullying act in based on a protected class (race, national origin, religion, disability, age, sexual orientation, gender identity), it can also be a civil rights violation. “But you can have bullying without a civil rights context; the obligations then are different,” she adds. Under the anti-bullying law, Levenson says, “the requirement is repeated conduct directed at a target that can cause some sort of hostile environment or cause the student to be placed in some sort of fear or injury. Whereas, under the civil rights laws, it can be any kind of unwelcome conduct based on a protected class that can be based even on a single severe incident and it doesn’t have to be directed at a target. In other words, if a kid is in the cafeteria and hears another group of kids making slurs about gay students, and this happens repeatedly or it’s a severe enough incident, that can trigger the school’s obligation to investigate under the federal anti-discrimination laws.” The state laws in Massachusetts are very specific, Levenson adds, and they require school districts to have an anti-bullying plan in place (sometimes known as a bullying prevention and intervention plan). As a result, the state Department of Elementary and Secondary Education gives schools a model plan to base theirs on. But wait, there’s more: “The civil rights laws actually require broader types of investigations,” says Levenson. As for federal laws, she continues: “The federal Office for Civil Rights, back in 2010 or so, had sent out a guidance to schools basically saying that even if you label something bullying, that doesn’t mean that it won’t also trigger responsibilities under federal anti-discrimination laws. So, basically, the federal government is saying if the abusive behavior is based on a protected class like race, sex, or disability and creates a hostile environment, you’ve got to satisfy the requirements of the federal anti-discrimination law.” Since the consequences have never been higher, and the legal responsibilities are both confusing and ever-changing, it’s of the utmost importance for school staff to seek out trainings and legal experts. “The best thing is to have your policies up to date, to be trained, to stay trained, and to consult with counsel,” Levenson says. “Because the administrators and the teachers, as well-intentioned and trained as they sometimes are, this is not their primary area or focus; this is not what they’re there for.”