On Tuesday, Jessica Barquist (Director of Policy and Organizing, Vermont Network Against Domestic & Sexual Violence) introduced a draft amendment for the Senate Education Committee to look at on bullying and harassment, which was opposed by major groups like NEA.

The House is considering changing the “severe and pervasive” standard for harassment in S.103 for employment and public accommodations, excluding educational settings. “The totality of all harassing behavior and its impact cannot be adequately addressed with the current standard,” she claimed.

Chairman Campion interrupted, questioning what would happen if they passed the amendment being presented. “What would allow a student to do what that they couldn’t do under current law?” he asked.

Barquist answered that the amendment doesn't hold students liable; rather, it allows students to access protections that they need and does not tell the school districts how to follow up or proceed with disciplinary actions.

“According to the Vermont results from the 2019 Youth Risk Behavior Survey (YRBS), 45 percent of students have been bullied on school property. Feeling sad or hopeless increased among Vermont high school students from 25 to 31 percent and among middle school students from 19 to 23 percent.”

Campion commented that he has read the amendment and it makes sense to him. He turned to  Sue Ceglowski (Executive Director, VSBA), who was sitting at the side of the room and asked if they were opposed to the language being proposed. She indicated that they were not “opposed outright,” but that they urged legislators to wait until the final Title IX rules are completed.

Campion asked if the forthcoming rules would be “more or less than what we are trying to do here?” The answer seemed to be that the rules had more to do with timing and procedures.

Senator Gulick noted that her position was “the same as before.” She was concerned about “unanticipated consequences for some of our most vulnerable students.” Campion followed, asking about the impact on learning experiences if someone is accused of harassment under the new rules. “We don’t want to jeopardize their futures in any way,” he noted. Barquist suggested that these amendments only dictated a response but not any disciplinary actions that would follow.

Pondering this, Campion asked what “accountability” looks like. Barquist admitted that this was beyond her “ability to say,” and was not prepared to answer. However, she believed it would be a civil process and promised to get back to the committee about “what that looks like.”

Heather Lynn (Vermont School Boards Insurance Trust) is an attorney that works with school boards and provides trainings on harassment, hazing, bullying. She has been doing this work for 20 years. “With respect and appreciation to all the perspectives that have been brought to the committee, it is simply not accurate to say that schools currently don’t have a duty to respond,” she stated. There is already a duty under the currently regulatory oversight and the Agency of Education is currently reviewing those policies for any gaps.

She pointed to several other places in statute and rules where harassment was prohibited, and school districts were required to respond in meaningful ways.

One area of concern is regulating speech where schools have “limited powers.” An example of this is clothing with labels or insignia; even if deeply offensive, unless a school can “demonstrate these symbols or pieces of clothing disrupt the education environment,” it is protected speech. This bill proposes to “strip away consideration” of the circumstances, impacts, or ongoing dynamics between students and simply label the behavior as harassment.

NOTE: This may also have first amendment implications.

She noted that her colleagues agree that the proposal would “not take into account the current regulatory structure we already have in place.” She called the effort “misguided.” However, Lynn added that behaviors and volume of issues she is seeing across her desk have certainly risen in the last three years.

She wished that the legislature would “commit resources to fund positions for every school” to pursue this work “under the laws you have already passed.” 

Campion was the only one able to hazard a response, asking if schools “already have legal tools in place,” wondering if the problem was “in the law books.” Lynn responded that the “legal tools” have been in place since 2015, but the new language would “shift so that schools can be held legally and financially responsible for the conduct of students whenever the behavior is based on a protected category without consideration to whether or not any harm resulted.”

NOTE: This is an entirely new legal responsibility for schools that is VERY broad and could have a number of implications for both students and taxpayers.

She continued to note that this was inherently different for students (who are minors) than the responsibility and control a school can exercise over employees. The proposed language seems to be mirroring employment law in this area.

Campion posed a hypothetical, asking what would happen if a school “simply ignored some name-calling issue” under current state law. Lynn noted that if it was witnessed, the school would have an “affirmative duty” to consider and treat that behavior as potentially bullying and harassment. They would launch an investigation, communicate with parents, and produce a written report to determine if the behavior rose to the level of harassment. Even if it were not deemed harassment, but the behavior was “damaging and disruptive,” there would be a plan in place to prevent a recurrence.