Legislative Service Commission
Am. Sub. H.B. 276
126th General Assembly
(As Passed by the House)
Reps. J. Stewart, Miller, Carano, Hartnett, C. Evans, Perry, Allen, Taylor, Peterson, Setzer, Williams, Garrison, Chandler, Woodard, Barrett, Aslanides, Beatty, Brown, DeBose, Domenick, Fende, Flowers, Harwood, Mason, Mitchell, Otterman, Sayre, G. Smith, D. Stewart, Strahorn, Yates, Yuko
Policies to prohibit harassment, intimidation, or bullying
(R.C. 3313.666(A), (B), and (C) and 3314.03(A)(11)(d))
The bill directs the board of education of each city, local, exempted village, and joint vocational school district and the governing authority of each community (charter) school to adopt a policy prohibiting student harassment, intimidation, or bullying. The board or governing authority must develop the policy in consultation with parents, school employees, school volunteers, students, and community members.
The policy must prohibit the harassment, intimidation, or bullying of any student on school property or at a school-sponsored activity. It also must define the term "harassment, intimidation, or bullying" in a manner that includes the definition prescribed in the bill. In this regard, the bill defines that term as an intentional written, verbal, or physical act that a student has exhibited toward another particular student more than once and the behavior both (1) causes mental or physical harm to the other student, and (2) is sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment for the other student.
The policy also must include the following additional items:
(1) A procedure for reporting prohibited incidents;
(2) A requirement that school personnel report prohibited incidents of which they are aware to the school principal or other administrator designated by the principal;
(3) A requirement that the parents or guardians of a student involved in a prohibited incident be notified and, to the extent permitted by state and federal law governing student privacy, have access to any written reports pertaining to the prohibited incident (see COMMENT 1);
(4) Procedures for documenting, investigating, and responding to a reported incident;
(5) A requirement that the district or community school administration provide written notification of all reported incidents to the president of the district board of education or community school governing authority;
(6) A strategy for protecting a victim from additional harassment and to protect the student from retaliation following a report; and
(7) The disciplinary procedure for a student who is guilty of harassment, intimidation, or bullying (see COMMENT 2). The bill explicitly prohibits the disciplinary procedure from infringing on a student's rights under the First Amendment to the U.S. Constitution, which include freedom of speech and the free exercise of religion.
These items form a framework for districts and community schools to use in developing their policies. The policy must be included in student handbooks and in publications that set forth the standards of conduct for schools and students. Employee training materials must also include information on the policy.
State Board of Education's model policy
To assist school districts and community schools in developing their own policies, the bill requires the State Board of Education to develop a model policy to prohibit harassment, intimidation, or bullying in schools. The State Board must issue this policy within six months after the bill's effective date. (See COMMENT 3.)
Auditor of State identification of harassment policy
(R.C. 117.53; Section 3)
Beginning one year after its effective date, the bill requires the Auditor of State, when conducting an audit of a school district or community school, to identify whether the district or school has adopted an anti-harassment policy. This determination must be recorded in the audit report.
Immunity from civil liability
(R.C. 3313.666(D), (E), and (F))
The bill provides that a school employee, student, or volunteer is immune from civil liability for damages that arise from the reporting of an incident of harassment, intimidation, or bullying. A person qualifies for immunity only if the person reports the incident promptly in good faith and in compliance with the procedures specified in the district's policy. Although the bill states that the requirement for school districts and community schools to adopt anti-harassment policies does not create a new cause of action or substantive legal right, it further specifies that, except for the qualified immunity provided to persons who report incidents, nothing in the bill's provisions prohibits a victim of harassment, intimidation, or bullying from seeking redress for harm under statutory or common law.
Bullying prevention initiatives
(R.C. 3313.667 and 3314.03(A)(11)(d))
The bill authorizes school districts and community schools to form bullying prevention task forces, programs, and other initiatives involving volunteers, parents, law enforcement, and community members. In addition, to the extent that state or federal funds are appropriated for these purposes, school districts and community schools are required (1) to provide training, workshops, or courses on the district's bullying policy to school employees and volunteers who have direct contact with students, which must apply toward any state- or district-mandated continuing education requirements, and (2) to develop a process for educating students about the policy. Finally, the bill states that these authorizations and requirements do not create a new cause of action or substantive legal right for any person.
1. State and federal laws prohibit the release of student educational records to most persons, other than educational and law enforcement personnel, unless the student's parent, or the student if at least 18 years old, consents to the release. (R.C. 3319.321 (not in the bill) and the federal Family Educational Rights and Privacy Act (FERPA) 20 U.S.C. 1232q.) Student disciplinary records appear to be subject to these laws and in most cases cannot be released without the consent of the student or student's parent.
Case law on this issue, however, is somewhat divided. In 1997, the Supreme Court of Ohio held that student disciplinary records were not educational records under the federal law because they were not academic in nature. Thus, those records, according to the Court, were subject to disclosure under the state Public Records Law. The request for records in that case did not seek information that linked a student to a particular act.
In a related case involving some of the same Ohio parties where personally identifiable information was requested, the U.S. District Court for the Southern District of Ohio and the U.S. Court of Appeals for the 6th Circuit held that disciplinary records are educational records under the federal law and may not be released without consent. Accordingly, their release cannot be compelled under the state Public Records Law, since it does not apply to records that may not be released under federal or state law.
2. A school district board is required under continuing law to adopt a code of conduct for the schools of the district and policies for the enforcement of that code (R.C. 3313.661, not in the bill). The district superintendent or school principal may "suspend" a student for up to ten days for minor violations of the district's code. The district superintendent (and not a principal) may "expel" a student for up to the greater of 80 days or the remainder of the school term for serious violations of that code. In addition, the superintendent must expel a student for one full year for carrying a firearm to school and, depending upon board policy, may expel a student for one full year for possessing a firearm or knife at school or a school-sponsored activity, for causing serious physical harm to persons or property at school or a school-sponsored activity, or for making a bomb threat to a school or school-sponsored activity. (R.C. 3313.66(A) and (B), not in the bill.) The law also provides for due process procedures that must be followed in the case of these disciplinary actions. In general, suspensions and expulsions require notice to the student and student's parent and an opportunity for the student to explain the student's actions, and may be appealed to the district board of education. (R.C. 3313.66(D) and (E).)
The act of a student harassing, intimidating, or bullying another student likely would violate district policies relating to student conduct. If district or school officials have sufficient evidence of those acts, they may be able to discipline a student under these policies. Whether any suspension or expulsion is imposed, and its duration, would depend on the nature and severity of the acts.
3. On October 12, 2004, the State Board of Education adopted an "Anti-Harassment and Bullying Policy" in which the Board states, among other things, that it "believes that Ohio schools should be physically safe and emotionally secure environments for all students and staff." In that policy, the State Board directed the Department of Education to provide schools with model policies and strategies that promote safe and secure learning environments, to disseminate information and provide professional development in regard to the models, and to design a plan and process to evaluate the effects of the State Board's policy.
 State ex rel. The Miami Student v. Miami University (1997), 79 Ohio St.3d 168, cert. denied, 522 U.S. 1022 (1997).
 At least one state appeals court from another state has distinguished the case on those grounds and held that disciplinary records that do link a student to a particular act may not be released under FERPA (Publishing Corp. v. University of North Carolina, 128 N.C. App. 534, 540-42 (1998)). Also, one dissenting justice in the Ohio case pointed out that a Georgia decision relied on by the majority predates the 1995 amendments to rules implementing FERPA. According to the dissent, the 1995 rules "clarify" that disciplinary records are always education records (79 Ohio St. at 175-75, Lundberg Stratton, J., dissenting).
 United States v. Miami University, 91 F. Supp.2d 1132 (S.D. Ohio 2000), 292 F.3d 797 (6th Cir. 2002). In that case, the Appeals Court noted that the federal district court was not bound by the interpretation of federal law by the Ohio Supreme Court. The federal case originally was brought by the U. S. Department of Education, which had advised two universities that disciplinary records are educational records and that they could lose federal funds if they released records on the basis of the Ohio Supreme Court's decision.