The Senate Education Committee reviewed H.461 on Tuesday with Legislative Counsel, specifically looking at the new language surrounding harassment.
Legislative Counsel reviewed the definition of bullying used in statute versus the new draft language. The statute currently requires proof that discriminatory behavior meets the “severe or pervasive standard,” while the new draft just requires proof that someone has been subject to discriminatory harassment.
The first part of the amended definition would read as:
“[the action] has the purpose or effect of objectively and substantially undermining and detracting from or interfering with a student’s educational performance education or access to school resources or creating an objectively intimidating, hostile, or offensive environment.”
Legislative counsel explained that these changes would lower the standard so that the effects on educational performance were no longer a defense of bullying or harassment accusations. It was noted that this language came from Bor Yang (Executive Director, VT Human Rights Commission).
Chairman Campion asked if this language was “new territory” in the United State or if they would be following the lead of other states. The answer was “this is relatively new territory.” New York and D.C. have adopted similar language in their anti-discrimination laws.
Senator Gulick commented that tying “harassment manifestation to educational performance is so bizarre,” based on her experience observing children as a teacher.
In addition to the language above, Legislative Counsel explained that the new definition would also include persons who may not be the direct target of discrimination, but “who shares that characteristic such as Jewish slurs witnessed by a bystander who is also Jewish.”
There was some language added to deter frivolous assertions, but this also allows people to bring suit under the Public Accommodations Act (PAA) if the school district’s internal process is unsatisfactory. However, they would not have to meet the “severe and pervasive” test in the PAA.
Senator Weeks noted that the bill lists “race, creed, color, national origin, marital status, sex, sexual orientation, gender identity, or disability” as protected classes, but questioned why religion was left off the list. Legislative Counsel responded that the legal terminology is “creed.” Some laws say, “religious creed” and more recently just “religion.” Creed is an older Western term and reflected a sense that various denominations were recognized and protected. It means the same to the law and courts.
Weeks followed with a question about whether or not teachers and staff were covered under this statute. Legislative Counsel confirmed that they were.
Weeks then commented that “certainly [the bill] lowers the precipice of what harassment is.” Legislative Counsel agreed that it did.
It was noted that under existing law “one act” would be considered harassment if the “severe” standard was met, but the bill would remove that standard. Legislative counsel noted this was a policy decision to offer flexibility in the definition if the action was not “sufficiently severe.”
Gulick supported the amendment but also stressed some school districts may “need resources,” especially if they don’t already have “a robust system” to handle these types of complaints. The changes may be “punitive” to them, she added.
She is also concerned about the “school to prison pipeline.” Where she lives, “lots of these protected classes take their cues on how to behave from social media and that is not always a good thing,” adding that “kids’ frontal lobes are not fully developed and they make lots of mistakes and sadly many are taking cues from sources that are not necessarily productive or positive.”
Campion agreed that students may get suspended for saying something on TikTok, miss a few days, and fall behind on work.
Weeks voiced concern about hypersensitivity around “perceived harassment” and is “still uncomfortable” that the actions here may in fact create “an environment which becomes hypersensitive that creates an entirely new problem.”
Campion shared this concern but said he is “trying to put himself on the other end of it also.” He asked “if someone does use the ‘N’ word, they are not going to court, the school is dealing with it. Is that accurate?” Legislative Counsel agreed that was the first step in the process. The courts only get involved if the school district fails to deal with these complaints.
Gulick added “I worry that if we don’t give them the opportunity to learn in a restorative environment. I am concerned that this will snowball.”
