Board of Regents Acts to Amend Dignity for All Students Act Regulations

Update: Public comments will be accepted through July 23, 2018

The Board of Regents today acted to amend the Dignity for All Students Act (DASA) regulations to include examples of types of incidents of harassment, bullying or discrimination to be reported and investigated as possible violations of DASA. The amendment is intended to provide further clarification to school administrators, employees and students on the types of incidents of harassment, bullying and discrimination  to be reported to administrators and investigated by the school Dignity Act Coordinator.

“School administrators, educators and staff work day in and day out to ensure all children feel welcome and included at school,” Board of Regents Chancellor Betty A. Rosa said. “While the federal government is repealing the rights of our transgender students, New York will not waver in its commitment to protect transgender – and all – students from bullying, harassment and discrimination. We hope school leaders will use these examples to help illustrate for all school employees the types of unacceptable incidents that must be reported and investigated.”

“Schools should be safe havens for all students, where they have opportunities to thrive in an environment free of bullying, harassment and discrimination,” State Education Commissioner MaryEllen Elia said. “With this regulation change, we are continuing to provide support to district administrators and school staff as they work to create a positive school culture and climate in which students feel safe, supported and fully included.”

“I applaud the Board of Regents for adopting this regulation, and Commissioner Elia for proposing it,” said New York Attorney General Eric T. Schneiderman. “At a time when the federal Department of Education has abdicated its most basic responsibility to protect all students, leaving transgender students to fend for themselves, New York continues to make clear that we have zero tolerance for discrimination. This emergency regulation sends a clear message to districts throughout New York that denying a student access to facilities based on gender identity, or mis-gendering a student, can amount to a reportable incident of discrimination under the Dignity for All Students Act. The regulation’s commonsense approach is a reminder to all districts of what DASA requires of them: provide equal educational access to all students -- including transgender and gender nonconforming students -- free of discrimination, harassment, and bullying.”

New York State’s Dignity for All Students Act expressly prohibits bullying, discrimination, and harassment, on school property or at a school function, on the basis of a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex.

SED’s guidance encourages districts to take proactive steps to ensure that all students experience a safe and welcoming learning environment, free of discrimination and harassment. In July 2015 SED issued guidance to all New York State school districts, entitled “Guidance to School Districts for Creating a Safe and Supportive School Environment For Transgender and Gender Nonconforming Students.” In addition to the existing guidance related to DASA, this guidance specifically covers how school districts should address the use of names and pronouns; sex-segregated programming and school facilities; and student privacy and confidentiality.   

The amendments to the regulation include illustrative examples of the types of incidents of harassment, bullying and discrimination to be reported to the principal, superintendent or designee as possible violations of DASA by any employee that witnesses or learns of the incident. Specifically, the proposed amendment includes a “report of harassment, bullying, and/or discrimination” to include, but not be limited to, the following examples:

• a report regarding the denial of access to school facilities, functions, opportunities or programs including, but not limited to, restrooms, changing rooms, locker rooms, or field trips, based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
• a report regarding application of a dress code, specific grooming or appearance standards that is based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
• a report regarding the use of name(s) and pronoun(s) or the pronunciation of name(s) that is based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
• a report regarding any other form of harassment, bullying and/or discrimination, based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex.

Research shows that bullying and school climate are linked to children’s academic achievement, learning and development. Specifically, children who are bullied are more likely to avoid school, more likely to drop out of school, have lower academic achievement, have lower self-esteem and higher levels of anxiety, depression and loneliness, and are more likely to attempt suicide, both during childhood and later in life. A recent national survey of school climate found that more than 80 percent of lesbian, gay, bisexual and transgender (LGBT) youth reported some form of bullying or harassment at school. These concerns are especially urgent for transgender students for whom the data indicates that that 1 in 2 transgender students have had at least one suicide attempt by their twentieth birthday.

State Education Department Actions on Implementing DASA

In August 2016, Commissioner Elia, in partnership with Attorney General Schneiderman, issued a memorandum, guidance and model materials to assist school districts in complying with DASA. That guidance provided school districts with model forms to assist with investigating and verifying reports of bullying, harassment or discrimination.

In February 2017, the Commissioner again issued a joint memorandum with the Attorney General to remind school districts of their obligation to protect transgender students from bullying, discrimination and harassment in their schools and at all school functions, despite actions taken by the United States Department of Education (USDOE). In response to USDOE’s confirmation in February 2018 that it would no longer investigate civil rights complaints from transgender students denied access to bathrooms consistent with their gender identity, the Commissioner and the Attorney General issued another joint memorandum to school districts in which they reiterated New York’s commitment to creating safe and supportive learning environments for all New York students and school district’s obligation to comply with DASA.

An audit by the Office of the State Comptroller found additional guidance and training is needed for the field, particularly in the area of identifying, documenting, investigating, and reporting DASA incidents. As a result, the Board of Regents and State Education Department propose to include illustrative examples of the types of incidents of harassment, bullying or discrimination which must be reported to the principal, superintendent or designee when reported to or witnessed by a school employee.  

Public Comment & Implementation

If adopted at by the full board on May 8, the proposed amendment will become effective as an emergency measure immediately. A Notice of Proposed Rulemaking and Emergency Adoption will be published in the State Register on May 23, starting the 60-day public comment period which will end July 23. It is anticipated that the proposed amendment will be presented to the Board of Regents at the September meeting for adoption as a permanent rule effective October 3, 2018.

Public Comment Period

A Notice of Proposed Rule Making was published in the State Register on May 23, 2018. NYSED will accept comments on the proposed amendments through July 23, 2018. Please email comments to regcomments@nysed.gov.