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Abstract
This article presents the findings of research into the bullying laws in the United States. Against the backdrop of international law, it addresses children's rights to protection from bullying in US schools. It includes recommendations for improving anti-bullying legislation based on state anti-bullying legislation in the United States, and provides a framework for further efforts to improve laws and school policies to better protect children in schools.
Notes
1. The Code of Hammurabi (Hooker Citation1910 [c.1780 bce]).
2. Ezer notes that ‘[t]he Declaration sets out a positive right to protection for children. Thus, in the Preamble, it explains that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection,” linking needs and rights. Principle 2 goes on to assert, “The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity.” Principle 9 refers specifically to abuse, stating, “[T]he child shall be protected against all forms of neglect, cruelty and exploitation.” In the Declaration, children's rights are rooted in the inherent “dignity and worth of the human person”. By virtue of their humanity, children are entitled to the protections necessary for them to live with dignity’ (Ezer 2004, 1).
3. Bullying is distinguished from other forms of conflict and aggression by three factors: 1) It is intended to inflict suffering; 2) the infliction of suffering is repeated and persistent; and 3) there is an imbalance of power between the perpetrator and the victim (Bauman and Hurley Citation2005, 50).
4. According to the US Department of Education, in 2007, ‘about 32 percent of students reported having been bullied at school during the school year. Twenty-one percent of students said that they had experienced bullying that consisted of being made fun of; 18 percent reported being the subject of rumors; 11 percent said that they were pushed, shoved, tripped, or spit on; 6 percent said they were threatened with harm; 5 percent said they were excluded from activities on purpose; and 4 percent each said that someone tried to make them do things they did not want to do and that their property was destroyed on purpose’ (US Department of Education 2008; see also Sileo Citation2004).
5. Harassment of both children and adults is damaging and costly to Americans. ‘Ongoing research attempts to precisely measure the economic costs of harassment-including the costs from psychological and physical illness, absenteeism, turnover-and, inter alia, lost productivity through organizational disunity, reduced morale, and acts of sabotage. In addition, indirect costs must account for intertwined pathologies, like alcoholism and mental illness, which reportedly cost US industry in the tens of billions of dollars annually. The US Bureau of National Affairs found in a 1990 study ‘that between $5 billion and $6 billion was lost each year to businesses as a result of the decreased productivity caused by real or perceived abuse of employees’ (Coleman 2004, 265).
6. Brownstein notes: ‘What emerged in the aftermath [of Columbine] was a brutal image of students ostracized by the “popular kids” and taunted on a daily basis. Two-thirds of teenagers involved in deadly school shootings say they were seriously bullied, and many suicides have been linked to peer harassment … The 1950s image of the bully as the big kid who extorted lunch money began to fade. Studies revealed bullying to be a pervasive part of school culture worldwide, with devastating long-term effects for both victims and bullies’ (2004, 13).
7. Kilkelly notes: ‘The right to education is an internationally recognised human right and the subject of significant constitutional and legislative provision nationally and internationally. It is well established that children have the right to education … and to benefit from it in a way that recognizes that education enables the fulfilment of the child's potential. This requires that education meets the child's needs, is child-centred and also aims to equip the child with the life and social skills to respond appropriately to life's challenges … children have the right to be protected from harm’ (Kilkelly 2008).
8. This provides: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed’ (http://www.constitution.org/usdeclar.htm).
9. ‘We, and future generations, should never be permitted to forget that Adolf Hitler's massive aggressions carried out for the purpose of extending the sovereignty of the German state finally resulted in the near obliteration of Germany from the face of the earth, and that the post war agreements made by Germany to limit its sovereignty to make the European Community a workable reality have brought peace, prosperity and security to the German people to a degree never achieved before. This is a lesson of history which should always be with us’ (King Citation1963; see also King Citation1994, 176).
10. The Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 (1989), available online at http://www.unincef.org/crc.
11. According to Price Cohen, ‘The United States remains one of only two nations in the world that have not ratified the Convention; Somalia, which currently does not have a functioning government, is the other. Even the US trust territories of the Marshall Islands and Solomon Islands are States Parties to the Convention. Yet, despite the United States’ failure to ratify the convention, any strong proponent of individual rights is likely to agree that US participation in the drafting of the Convention radically improved the status of children’ (Price Cohen 2006, 188).
12. One view is as follows: ‘[W]e believe the CRC's newly minted autonomy rights are neither beneficial to children nor harmonious with traditional notions of salutary family life … Second, we have concluded that the CRC's sweeping reconstruction of family life lies beyond Congress’ reach’ (Wilkins Citation2003, 412). But according to Price Cohen, ‘Critics seemingly fail to understand that the Convention, like every UN human rights treaty, encompasses three principles: (1) it is entered into voluntarily by sovereign nations who seek to comply with standards they hold to be desirable; (2) the Committee's role is to assist nations in meeting their goals; and (3) nations in no way surrender any piece of their sovereignty by ratifying the treaty. States Parties are free to interpret the Convention as they deem appropriate, and, upon ratification, they may designate those parts of the treaty with which they do not choose to comply by making a “reservation” to that provision’ (2006, 195).
13. See Title VI, 42 USC § 2000d (2009) (‘No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance’). See also Chin Citation2008, 333.
14. 20 USC § 1681(a) (‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance’). See also Hanley Kosse and Wright, Citation2005.
15. ‘There are several sources of law under which claims for disability harassment in the public schools can be analyzed: Section 504 of the Rehabilitation Act and title II of the ADA; the Individuals with Disabilities Education Act (IDEA); the common law; and the United States Constitution’ (Weber Citation2002, 1093).
16. See, for example, Svedberg v. Stamness, 525 NW2d 678 (ND 1994) (upholding a charge of disorderly conduct against a student who had repeatedly harassed and threatened another student, and rejecting a First Amendment defense on the grounds that the harassing speech constituted ‘fighting words’).
17. According to Coleman, ‘Several tort actions-assault, defamation, invasion of the right to privacy-are theoretically applicable to the many variants of harassment’ (2004, 247).
18. For example, in a survey of Ohio students aged 13 to 18, the majority cite physical appearance as the most common reason students are bullied and harassed (49%), followed by sexual orientation (18%), and gender expression (9%). Moreover, even when victims do fall into protected categories, courts have set a high bar for recovery, with plaintiffs often prevailing in only the most horrific cases (emphasis added).
19. Bloom notes: ‘There is, or ought to be, an expectation that students should be able to attend school without fearing for their personal safety. The law must provide a cause of action when schools fail to meet their obligation to provide a safe (and respectful) learning environment’.
20. Weddle notes that ‘[n]early two decades of educational research has repeatedly demonstrated that one of the most damaging and pervasive problems in our schools today is bullying. That research has shown that bullying leaves its victims with serious and often life-long emotional problems’.
21. In 2007, the authors conducted a comprehensive study of anti-bullying legislation in the United States. Based on a thorough analysis of state anti-bullying laws, this study suggested policy recommendations for improving anti-bullying laws. This article presents an updated and revised version of these recommendations based on further analysis of US, Irish, and international laws).
22. Even the format and placement of these provisions can send powerful messages about lawmakers’ genuine commitments to reform. Accordingly, these provisions should not be buried in tangential or unrelated statutes, seemingly included as an afterthought amendment, or scattered among many different statutes, making it unnecessarily difficult for those who need these provisions to access them, and sending a negative message about lawmakers’ seriousness and commitment to these laws (see Marcello Citation1996). Unless the policies send an unambiguous message of serious commitment by lawmakers, they may be perceived as little more than symbolic gestures to placate parties who pushed for anti-bullying legislation, doing little more than symbolically declaring the problem addressed and therefore resolved without substantively changing any realities for children in schools. See, for example, Miss. Code Ann. § 37-11-54 (2007) (Mississippi), which allocates no additional resources, sets very limited and likely meaningless goals, and establishes an arbitrary sunset clause for repeal.
23. Ga. Code Ann. § 20-2-751.4 (2007) (Georgia).
24. Bloom notes: ‘The overt acts typical of younger children and adolescent/teenage boys, including physical and verbal abuse, harassment, and humiliation, are far more easily identified than their covert cousins. Covert acts could arguably be considered more pernicious forms of emotional and psychological torment and perhaps even more damaging to the victims. This covert or “relational aggression” infects the lives of adolescent and teenage girls (and to a lesser extent boys) and their classmates in middle schools and high schools across the country. State anti-bullying laws, and school district anti-bullying policies, most often do not address relational aggression or even recognize it as a form of bullying. Its existence and the adverse impact it has on the educational environment are simply ignored and denied by school administrators and school policy makers’.
25. Policies must address current problems threatening children and be updated as necessary. For example, the failure to include cyber-bullying or other current and clearly emerging threats within the statutory definition of actionable bullying can leave children unnecessarily vulnerable to these dangers (see Myers and Carper 2008, 7, describing Internet-based resources for addressing Internet-based harassment).
26. A child in the custody and protection of school officials should not have to wait to be intentionally injured more than once before the child can expect appropriate action and protection from school officials under state law. But see Ga. Code Ann. § 20-2-751.4 (2007) (Georgia); La. Rev. Code § 416.13 (2007) (Louisiana).
27. Because bullying occurs at all grade levels, legal remedies should extend to all grade levels in age-appropriate ways. But see Ga. Code Ann. § 20-2-751.4 (2007) (Georgia), limiting protections to grades 6-12 only.
28. US Const. Art. I (‘Congress shall make no law … abridging the freedom of speech’); Const. of Ireland § 40.6.1 (‘The State guarantees liberty for the exercise of the following rights, subject to public order and morality: The right of the citizens to express freely their convictions and opinions’). See also Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) (defining speech as ‘harassing’ does not exclude that speech from First Amendment protection, and holds that anti-harassment policy was unconstitutionally over-broad). See McCarthy Citation2002.
29. Vt. Stat. Ann. 16 § 11(A)(26) (2007) (Vermont) (Department of Education policy implementing Vermont Act 91). Fair, efficient, and effective laws strike a proper balance between legitimate competing interests. Anti-bullying laws and policies must strike a proper balance, for example, between protecting individuals from harassment, and respecting individual rights to expression; between protecting individuals from abuse, and assuring a fair hearing for the accused.
30. Nev. Rev. Stat. § 388.125 (2007) (Nevada).
31. Vt. Stat. Ann. 16 § 11(A)(26) (2007) (Vermont).
32. But see Wash. Rev. Code § 28A.300.285 (2007) (Washington) (‘Nothing in this section requires the affected student to actually possess a characteristic that is a basis for the harassment, intimidation, or bullying’).
33. Weddle notes that ‘[t]here should be enough flexibility in the requirements to allow adaptability of approaches to local school settings, and enough specificity to prevent pro forma development of policies that will never themselves create the fundamental changes in school climate that are at the heart of effective bullying intervention’.
34. Nev. Rev. Stat. § 388.125 (2007) (Nevada).
35. Less ethical and less responsible school officials who most need the push of legal mandates to address bullying in their schools seriously are also most likely to ignore anti-bullying laws that remain optional. Weddle notes that ‘bullying and violence flourish in particular kinds of school climates, and those climates are largely within the control of school officials. School officials, then, should be forced to take control of the climates in their schools and to reduce the prevalence of bullying and related peer-on-peer violence. No one expects schools to eliminate all bullying; but educators no longer have any excuse for turning a blind eye to the problem and ignoring the research in their own field’ (Weddle 2004).
36. Hartmeister and Fix-Turkowski note that New Hampshire requires a ‘48-hour notification window for every principal or designee to notify parents or guardians of all students involved in a bullying occurrence.’
37. Conn. Gen. Stat. § 10-222(D) (2007) (Connecticut).
38. Nev. Rev. Stat. § 388.125 (2007) (Nevada).
39. Minn. Stat. § 120(B).22 (2007) (Minnesota).
40. Vt. Stat. Ann. 16 § 11(A)(26) (2007) (Department of Education policy implementing Vermont Act 91).
41. Altruism is a most admirable quality, but for some it may be a less reliable motivator than personal consequences in assuring that all children are protected from bullying and abuse in schools. Further, a mandated reporting system may provide persons who might otherwise be reluctant to report bullying, because of fear of being accused of ‘tattling’ on others, etc., with a useful ‘fig leaf’ when reporting is a legal requirement and not a choice. But see Hanley Kosse and Wright 2005, 65, who note that ‘[o]nly a few states actually require a school employee who witnesses an act of bullying to report it to a principal or other designated school official.’ See, for example, N.J. Stat. Ann. § 18A:37-13 (2007) (New Jersey).
42. Nev. Rev. Stat. § 388.125 (2007) (Nevada).
43. Due process of law proscribes the use of anonymous reports as evidence in disciplinary hearings. See generally Goss v. Lopez, 419 US 565 (1975). That is not, however, the purpose of this information. These anonymous reports should be used solely to alert school officials to a situation that may be endangering the health and safety of a child so that they can investigate and assure that all children in their school are safe. If, however, the follow-up investigation by school officials independently reveals evidence of misconduct, this subsequent evidence may be used in a disciplinary proceeding.
44. See Doe v. Brimfield Grade School, 552 F. Supp. 816, 820 (CD Ill, 2008) (a severely bullied student's mother, ‘a teacher at the school, was retaliated against for voicing objections, through false accusations of unprofessional conduct and challenges to her competence as a teacher’).
45. N.J. Stat. Ann. § 18A: 37-13 (2007) (New Jersey).
46. Weddle notes here that ‘[c]urrent legal theories and approaches to bullying suffer from a common flaw: they view bullying from an incident-based perspective rather than from a school culture perspective. They focus on what school officials knew about a specific bullying incident rather than addressing what school officials have done to ensure a culture where bullying is unacceptable to everyone in the school’.
47. Okla. Stat. § 24-100.1 (2007) (Oklahoma).
48. Minn. Stat. § 120(B).22 (2007) (Minnesota).
49. Conn. Gen. Stat. § 10-222(D) (2007) (Connecticut).
50. Vt. Stat. Ann. 16 § 11(A)(26) (2007) (Vermont) (Vermont DOE policy implementing Act 91 requires student notification of policy in age-appropriate language with examples of harassment; requires age-appropriate training with students and staff).
51. See Horne, Bartolomucci, and Newman-Carlson 2003, and also Bully Busters Training, available online at www.stopbullyingnow.net/bullybustertraining.htm Bully Busters is a research-driven bullying prevention curriculum for elementary, middle and junior high schools. Upon completion of the training, teachers, administrators, and staff will be able to put the programme in place immediately to begin reducing bullying and positively affect school climate.
52. Minn. Stat. § 120(B).22 (2007) (Minnesota).
53. US Government Accountability Office, Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers, Before the House Committee on Education and Labor, 111th Cong., 4, 7 (2009), available at http://www.gao.gov/new.items/d09719t.pdf; see statement of Gregory D. Kutz, Managing Director Forensic Audits and Special Investigations: ‘[S]eclusion and restraints against students, some as young as 5 years old, have resulted in broken bones and other severe injuries, deaths from suffocation while pinned down, and suicides while confined or restrained. There are no federal laws restricting the use of restraints and seclusions and state laws and regulations in this area vary widely … nineteen states have no laws or regulations … seven states place some restrictions of the use of restraints, but do not regulate seclusions. Seventeen states require that selected staff receive training before being permitted to restrain children. Thirteen states require schools to obtain consent prior to using foreseeable or non-emergency physical restraints, while nineteen require parents to be notified after restraints have been used. Two states [Texas and California] require annual reporting on the use of restraints … Texas public school officials stated they restrained 4,202 students 18,741 times during the September 2007 through June 2008 academic year. During the same time period, California officials reported 14,354 instances … children with disabilities were sometimes restrained and secluded even when they did not appear to be physically aggressive and their parents did not give consent’.
54. What message, for example, does the use of corporal punishment by school officials send to children about resolving disputes, bullying and the exercise of power over others? See Okla. Stat. § 24-100.1 (2007) (Oklahoma) (statute addressing bullying, but also expressly protecting local schools’ right to exercise corporal punishment).
55. Davidson notes (1995–96, 23) that ‘parents whose actions or indifference contribute to their children's violent and destructive behavior must be held to a legally appropriate standard of responsibility, with civil and criminal sanctions imposed where warranted’. Moreover, Henning notes (2006, 857) that ‘[i]n an effort to hold parents accountable for the behaviour of their children, policymakers now require parents to participate in every aspect of the juvenile justice system … and [they] are increasingly required to attend court hearings under the threat of contempt … Parents are also increasingly required to participate in treatment … to participate in family counseling, parenting skills classes, individual therapy, or community service’.
56. See Wash. Rev. Code § 28A.300.285 (2007) (Washington) (defining ‘malicious harassment’). Blodgett notes that ‘bullying behavior can result in crimes such as assault and battery, making threats, criminal harassment, stalking, and violation of a person's civil rights … Bullying prevention is crime prevention. Bullying is not child's play. It is not “just part of growing up.” Bullying, and the violence it causes, has become an increasingly serious problem in our communities’ (Blodgett Citation2006, 34).
57. Minn. Stat. § 120(B).22 (2007) (Minnesota).
58. N.J. Stat. Ann. § 18A: 37-13 (2007) (New Jersey). See also Wash. Rev. Code § 28A.300.285 (2007) (Washington) (‘Training materials shall be disseminated in a variety of ways’).
59. Nev. Rev. Stat. § 388.125 (2007) (Nevada).
60. Vt. Stat. Ann. 16 § 11(A)(26) (2007) (Vermont).
61. When school officials knowingly refuse to protect children from abuse the law should protect children and not the adults and institutions that failed to protect the children. See, for example, Doe v. Brimfield Grade School, 552 F. Supp. 2d 816, 819-823(CD Ill, 2008). In Doe, the court rejected school officials’ motion to dismiss the plaintiff's complaint. The plaintiff alleged that harassment was both verbal and physical, with the physical “sexual misconduct consist[ing] predominantly of grabbing, twisting, and hitting” John's testicles repeatedly beginning in November 2004 and continuing to November 2005. The school's principal was “aware of the ongoing practice of male students hitting each other in the testicles”, also known as “sac stabbing.” The plaintiff further alleged that the student's injuries required surgery, but parents complaints to school officials continued to be ignored. On his return to school after the surgery, John was teased about his surgery, and intentionally struck in the testicles again. His stitches popped and his surgical incision broke open. The school's principal still did nothing to correct the situation. Instead, John was reprimanded by his coach for complaining, advising John that he needed to “stick up for himself” … to “toughen up and stop acting like a little girl”’.
62. Weddle notes that ‘[u]nless the funds are guaranteed and the level of instruction is required to be research-based, rigorous, and ongoing, the schools’ attempts to mount serious and sustained efforts against bullying will probably be doomed at the outset, despite everyone's best intentions.’
63. US Const. pmbl. (1787).
64. Alaska Statutes § 14.33.200 (2008); Arizona Revised Statutes § 15-341 (2008); Arkansas Code § 6-18-514 (2008); California Code § 32261 (2008); Colorado Code § 22-32-109.1; Connecticut General Statutes § 10-222d (2008); 14 Delaware Code § 4112D (2008); Georgia Code § 20-2-751.4 (2008); 2008 Illinois Laws § 10-0.14; Louisiana Revised Statutes § 416.13 (2008); Minnesota Laws 120B.22 (2008); Mississippi Code § 37-1-54 (2008); Nevada Revised Statutes § 388.125 (2008); New Hampshire Revised Statutes 193-F:3 (2008); New Jersey Revised Statutes 18A:37-13 (2008); Oklahoma Statutes § 24-100.1 (2008); Oregon Revised Statutes § 339.351 (2008); Rhode Island General Laws § 16-21-26 (2008); 16 Vermont Statutes § 11(a)(32) (2008); Washington Revised Code § 28A.300.285 (2008); West Virginia Code § 18-2C-1 (2008).