According to The Bully Project, over 13 million American children will be bullied this year. Not long ago, bullying was unrecognized as a national problem or even as a social phenomenon. But now, bullying is a major topic in most every school in the country. Bullying is a common backdrop to high-profile suicides, to school violence, to an increasingly urgent debate about children and social media.
A growing body of research tells us that bullying is not harmless teasing. Bullying involves a real or perceived imbalance of power, even coercive power. It is repeated. It can be physical (hitting), verbal (slurs, taunts), or psychological (social exclusion). It usually targets a single person, not a group. And its effects can be devastating.
Victims often experience anxiety, insecurity, low self-esteem, feelings of not belonging at school, depression, impaired concentration, poor academic performance, antisocial behavior, shame, loneliness and isolation, trouble making friends, increased health problems, and even suicide. Bullies, too, may experience serious problems: sadness, depressive symptoms, poor emotional adjustment, antisocial behavior, and a greater propensity to commit violence and engage in criminal behavior. In a Secret Service study, over two-thirds of school shooting incidents involved a shooter who felt bullied, persecuted, or threatened at school.
The more recent phenomenon of cyberbullying has only heightened the problem. Unlike traditional bullying, cyberbullying can attack anonymously; it can go viral, with many people harassing the same victim at once; and adults usually are not sufficiently technologically savvy to monitor, much less prevent, cyberbullying.
Schools have a strong role to play here. As one case noted, “When teachers downplay bullying or view it as kids being kids, bullying rates are higher. . . . School control is at its worst when staff and dominant students model this behavior, bullying is ignored or reinforced, or it is accepted as normal and expected.”
The law holds school districts and administrators accountable for school bullying in at least some contexts. Schools and administrators are liable when they are deliberately indifferent to known severe and pervasive harassment based on certain characteristics: for example, race, color, or national origin (Title VI of the Civil Rights Act of 1964), sex (Title IX of the Education Amendments of 1972), and disability (Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act). These forms of bullying are common. I receive calls all too often about bullying of African-Americans, of girls, of children with disabilities, and in a well-known case, of Jewish children in Pine Bush, New York, eighty miles from New York City. But what about children bullied for other reasons? Bullied because they are heavy, or wear glasses, or are just, different? Not every case involves racism, sexism, or a legally-protected characteristic. For those children, bullying—whatever its motivation—is also damaging, and often profoundly traumatizing.
These victims are largely unprotected by the law, and that should change. States, and Congress, should consider passing a law holding schools accountable for all types of bullying, not only bullying on the basis of limited, defined, protected characteristics.
Some will argue that such a law would open the floodgates to endless litigation. Schools, after all, cannot possibly regulate every social interaction among children. But such concerns are misplaced. The legal bar to holding schools accountable in bullying cases is already high: the bullying must be severe and pervasive. The school must know of the bullying. The school response must be so abjectly deficient that its action (or inaction) is deliberately indifferent to the problem. With these low legal expectations, why shouldn’t schools at least be held to this same minimal standard to address all forms of known, severe, pervasive bullying in school? We don’t expect a school to get an “A” to avoid litigation, but an “F” requires accountability and change.
From the Bill of Rights, to the Equal Protection Clause, to the Civil Rights Act of 1964, the history of social justice is in many ways a history of the law. Though the law cannot solve every social problem, legal accountability does lead to reform. In any event, shouldn’t we try?
13 million children are depending on us.
This article was first published on the Law.com Network on May 13, 2015