House Bill H0246

2015 Freedom Index Score: (-3)

Analyst: Parrish Miller
Date of analysis: March 11, 2015

ANALYST'S NOTE: House Bill 246 is similar to House Bill 191 (which received a score of -4), but is not
quite as bad. House Bill 246 still expands the scope of who the law applies to and expands the authority
of the Idaho State Board of Education in relation to the matter, but it does not expand penalties to the
same degree that House Bill 191 did.
Fundamentally, though, the bill still serves to move 'bullying' more fully out of the realm of normal
childhood experiences and into the realm of courts and police officers. It presumes to solve a problem
through larger and more intrusive government even in cases where the problem is small or transient.
The definition of bullying in the statute includes such things as an "intentional gesture" that places a
student in "reasonable fear" of damage to a piece of their property. Simple pranks or rude gestures
could be considered 'bullying' under this statute.

Point No. 1 Does it create, expand, or enlarge any agency, board, program, function, or activity of
government? Conversely, does it eliminate or curtail the size or scope of government?
ANALYSIS: House Bill 246 modifies Section 18-917A, Idaho Code, which deals with bullying by
students. Current law stipulates that "no student shall intentionally commit, or conspire to
commit, an act of harassment, intimidation or bullying against another student"; but under
House Bill 246 this prohibition is extended to include any "minor present on school property or
at school activities" in addition to students. (-1)
ANALYSIS: House Bill 246 creates Section 33-1630, Idaho Code, which, among other things,
mandates that "school districts and charter schools shall provide ongoing professional
development to build skills of all school staff members to prevent, identify and respond to
harassment, intimidation and bullying." It further mandates that "the state board shall
promulgate rules regarding the content of the professional development required by this
subsection." The bill further allows that "guidelines for such policies [graduated consequences
for bullying] will be set forth in the rules of the state board." (-1)

Point No. 10 Does it directly or indirectly create or increase penalties for victimless crimes or nonrestorative penalties for non-violent crimes? Conversely, does it eliminate or decrease penalties for
victimless crimes or non-restorative penalties for non-violent crimes?
ANALYSIS: House Bill 246 creates Section 33-1630, Idaho Code, which, among other things,
stipulates that "District policies shall include a series of graduated consequences that may
include, but are not limited to, referral to counseling, diversion, use of juvenile specialty courts,
restorative practices, on-site suspension and expulsion for any student who commits an act of
bullying, intimidation, harassment, violence or threats of violence. Guidelines for such policies
will be set forth in the rules of the state board."
Though this list of possible penalties does include "restorative practices" as a potential option, it
does not make such responses a priority. Suspension and expulsion do not serve to restore the
victim and neither do juvenile specialty courts in the vast majority of circumstances. Penalties
for true crimes (a more appropriate and narrow classification which does not encompass all the
actions which could fall within the currently defined scope of "bullying") should serve to restore
the victim, not merely to get the offender out of the way. There is certainly room for
improvement when it comes to how schools deal with bullies, but this bill does not go about it in
the proper manner.
Additionally, House Bill 246 mandates that "annually school districts shall report bullying
incidents to the state department of education in a format set forth in rule by the state board."
This language does not specify whether a 'bullying incident' includes all allegations or only
investigated and concluded incidents; it does not specify how long such information will be
retained; and it does not specify who may access this information. In a world where data has
increasing value and where data privacy is increasingly rare, these open questions remain a
concern. (-1)