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The nationwide effort to reduce bullying in U.S. schools can be regarded as part of larger civil and human rights movements that have provided children with many of the rights afforded to adults. But so far, protections against harassment apply only to children who fall into protected classes, such as racial and ethnic minorities, students with disabilities, and victims of gender harassment or religious discrimination.
This article identifies the conceptual challenges that bullying poses for legal and policy efforts, reviews judicial and legislative efforts to reduce bullying and makes recommendations for school policy.
Overview
- CE credits:1
- Exam items:10
- Learning objectives: After completing this course participants will be able to:
1. Distinguish between bullying and harassment.
2. Describe how bullying at school can be a civil rights violation.
3. Describe recommended school policies on bullying.
Two events in 1999 were turning points in the recognition of school bullying as an important societal problem in the United States. First was the shooting at Columbine High School, widely viewed in the press as actions by vengeful victims of bullying. Equally important, but less prominent in the media, was the U.S. Supreme Court decision in Davis v. Monroe County Board of Education, which established that schools could be liable for failing to stop student-to-student sexual harassment.
Yet after more than a decade of judicial and legislative activity since those two landmark events — as well as a massive increase in scientific research — today's laws and policies about bullying are fragmented and inconsistent. This article examines conceptual challenges in judicial and legislative efforts to address bullying in schools and recommends ways to improve schools' antibullying policies.
Defining bullying
The definition of bullying recognized by the Centers for Disease Control and Prevention includes three characteristics: intentional aggression, a power imbalance between aggressor and victim, and repetition of the aggression. Each of these criteria poses challenges for law and policy.
Intentional aggression is broadly inclusive and means that bullying can be physical, verbal or social. As a result, bullying can overlap with many other behaviors such as criminal assault, extortion, hate crimes and sexual harassment. But in its milder forms, bullying can be difficult to distinguish from ordinary teasing, horseplay or conflict. With regard to social or relational bullying, it may be hard to draw the line between children's friendship squabbles and painful social ostracism.
The second criterion — a power imbalance between aggressor and victim — distinguishes bullying from other forms of peer aggression. However, a power imbalance is difficult to assess. Although judgments about physical size and strength are feasible in cases of physical bullying, bullying is most often verbal or social and requires that there be a power differential that requires an assessment of peer status, self-confidence or cognitive capability. In some contexts, the victim lacks power for less obvious reasons, such as sexual orientation, disability or membership in a particular racial or ethnic group. A further complication is that interpersonal power can vary across situations and circumstances.
The third criterion for bullying is repetitive behavior. If repetition is seen as a necessary criterion for intervention, this might complicate enforcement of bullying rules and policies, because observers would have the added burden of detecting multiple incidents of abusive behavior before they can conclude that bullying has occurred. Most definitions recognize that a single bullying incident can be sufficiently harmful or likely to be repeated that it can be regarded as bullying.
In recent years, cyberbullying has emerged as a novel and especially noxious way to harm others. Through Web postings, texts, tweets and more, those who bully can publicly humiliate someone on a continuous basis. Most authorities recognize that cyberbullying is a modality for engaging in verbal and social bullying, subject to the same definitional criteria, rather than a qualitatively different behavior.
Harassment versus bullying and the law
"Harassment" is a term often used interchangeably with "bullying," but it has an established history in civil rights law and policy that precedes the fledgling laws and developing policies concerning bullying. U.S. civil rights laws are the culmination of many different advocacy movements aimed at protecting specific classes of individuals who are vulnerable to discrimination. For example, Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color or national origin, while Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex. Both Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 2004 prohibit discrimination on the basis of disability.
Of particular relevance to educators is that these laws protect students from discrimination that deprives them of their right to free appropriate public education (FAPE), a concept articulated in the 1975 Education of All Handicapped Children Act, and revised in the 1990 Individuals with Disabilities Education Act (IDEA). These laws have been generally interpreted to mean that teachers, administrators and other school personnel who are employed in public schools that receive federal funds must not engage in discriminatory practices against their students.
But while these laws clearly protect students from an adult's discriminatory treatment at school, there had been substantial disagreement among the courts on whether the laws apply to student-on-student harassment. That changed in 1999 when in Davis v. Monroe County Board of Education (1999) the Supreme Court ruled that school authorities could be held liable under Title IX for damages in a case involving student-on-student harassment.
Specifically, the case involved a fifth-grade girl who was repeatedly harassed by a male classmate who made sexually suggestive statements and gestures, and touched her inappropriately. During months of harassment, the girl was distressed, her grades declined and she wrote a suicide note. Frustrated by the school's lack of responsiveness, the parents went to the police and pressed charges. The boy pled guilty to sexual battery.
The family sued school authorities on the basis of the Title IX provision that "no person 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." The lower courts sided with the school officials and the family appealed; after 6 years, the case reached the U.S. Supreme Court. Its 5–4 decision was a monumental shift in the legal obligations of schools for student behavior, finding that sexual harassment of one student by another could constitute a discriminatory act under Title IX.
This decision opened the door for more cases arguing that schools should take action to stop harassment. In its decision, the Supreme Court identified four conditions that must be met for a school to be held liable:
- The student must be victimized because of membership in a protected category.
- The harassment at school must be severe. Ordinary teasing, name-calling and rough play among students are not sufficient unless the behavior is so severe, pervasive and offensive that it denies its victims equal access to education.
- School authorities must be aware of the harassment, and are not liable for harassment that they did not know about.
- Schools are liable only if they are "deliberately indifferent" to the harassment. Schools are not required to prevent or stop harassment, but only to make reasonable efforts to intervene when they become aware of it.
Although the Davis v. Monroe decision can be regarded as a great step forward for children's rights in school, it fell short of extending to students the protections from harassment afforded to adults in the workplace. Both the third and fourth conditions represent a significant difference from standards commonly applied to adult work settings. In the adult workplace, employers may be liable for sexual harassment by co-workers that they should have known about, even if they were unaware of it. Furthermore, employers are expected to successfully remedy the harassment and restore a harassment-free workplace.
Subsequent cases illustrate how courts have applied the Davis v. Monroe decision to bullying. In Shore Regional High School Board of Education v. P.S. Forty-one (2004), the Third Circuit held that the school district's failure to stop bullying can constitute a denial of a student's right to FAPE under IDEA. In this case, a boy had been verbally and physically bullied because of his perceived "girlish" appearance and was called names such as "gay" and "faggot." The boy was classified as eligible for special education services because of emotional disturbance that was attributed to being bullied. After the boy attempted suicide in the eighth grade, his parents were unwilling to send him to the local high school with the same students who had bullied him in elementary and middle school. School authorities initially denied the boy's transfer, but the parents argued successfully to the court that he should be permitted to go to a different high school.
Another case, Scruggs v. Meriden Board of Education (2005), prompted the Connecticut legislature to pass antibullying legislation. In this case, a 12-year-old boy died by suicide after years of physical and verbal bullying in middle school. The plaintiff successfully argued that the boy was bullied because of his learning disability, and that the school failed to follow appropriate special education procedures, did not train its staff adequately and did not have appropriate antibullying and harassment policies.
Federal guidance on bullying and harassment
Educational standards on bullying are emerging most clearly through a series of "Dear Colleague" letters from the U.S. Department of Education to school authorities. In 2010, the department's Office for Civil Rights sent such letters to schools nationwide to provide guidance on dealing with bullying that rises to the level of a civil rights violation. The letters emphasized that some forms of bullying constitute discriminatory harassment under federal law. As the letter advised, bullying of an individual based on race, color, national origin, sex or disability can be a civil rights violation if it is sufficiently severe, pervasive or persistent that it interferes with a student's ability to benefit from the school's services, activities or opportunities. The letter also pointed out that when a student who is being bullied is also identified as a victim of a federal civil rights violation, the school has more than an obligation to stop the violation. The schools must "eliminate any hostile environment and its effects" as well as take steps to "prevent the harassment from recurring" the letter said.
These obligations imply a broader effort to influence student behavior and improve the school climate beyond simply disciplining the culpable student. The letters encouraged schools to train staff on the school's civil rights obligations, to have clear policies and procedures in place, and to provide some form of orientation to students and families to help them recognize and seek help for harassment. These recommended standards go well beyond the conditions for liability articulated in Davis v. Monroe.
In 2011, another Office for Civil Rights Dear Colleague letter advised that the Title IX protection against gender-based harassment would include students harassed on the basis of their perceived sexual orientation. This was an important extension because harassment based on sexual orientation is pervasive and sexual minority students report high levels of bullying.
In 2013, the U.S. Department of Education issued guidance to school authorities emphasizing their obligation to prevent the bullying of students with disabilities, stating, "whether or not the bullying is related to the student's disability, any bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE under the IDEA that must be remedied." A follow-up letter sent to school personnel a year later to reiterate that the bullying of a student with a disability can result in a denial of FAPE highlights schools' obligations to address behavior that may constitute disability-based harassment, and explains schools' responsibilities to remedy any denial of FAPE.
But there is a key problem with the use of civil rights law to prevent bullying: Some bullied students do not fall into one of the protected groups. Moreover, some students may be members of a protected group, but bullying often targets characteristics (e.g., "You're fat and stupid") that do not narrowly focus on protected characteristics such as race or religion. As a result, applying civil rights laws regarding harassment to cases of bullying — however beneficial to many students — creates gaps and ambiguities that do not protect all bullied students. Although students with disabilities have an explicit right to a FAPE mandated by IDEA, students without disabilities are not included under this legislation.
A natural question is why students without disabilities do not have a comparable right to FAPE. The answer is that federal law does not give all children the right to public education — that has historically been the domain of state and local governments.
Arguably, the goal of the No Child Left Behind Act (2001) to provide "all children" with "significant opportunity to obtain a high-quality education" represents an inclusive standard that could be applied to all students, and Congress could establish a private right of action for students whose education is not adequate. A national right to education would be consistent with the United Nations Convention on the Rights of the Child, which, under international law, gives children the right to education. Notably, the United States and Somalia are the only two of 193 nations that have not ratified the Convention on the Rights of the Child.
Many states do, however, recognize the rights of students to a public education free from discrimination. For example, in New Jersey, the state Supreme Court cited its antidiscrimination law that provides protections beyond those afforded by Title IX. The court unanimously concluded, "Students in the classroom are entitled to no less protection from unlawful discrimination and harassment than their adult counterparts in the workplace" (L.W. v. Toms River Regional Schools Board of Education, 2007). The court further opined that schools should be required to "implement effective preventive and remedial measures to curb severe or pervasive discriminatory mistreatment." The New Jersey antidiscrimination law merits emulation.
State laws on bullying
Since 1999, state legislatures have been remarkably active on bullying in schools. From 1990 to 2010, more than 120 bills were enacted by the states to introduce or amend education or criminal justice statutes that address bullying. By 2015, every state had passed a law that directs school districts or individual schools to develop policies to address bullying. Some of the most common provisions include investigation and reporting of bullying, disciplinary actions for students involved in bullying, staff training and prevention efforts. Here is a look at some of those provisions — and some of their limitations.
Reporting incidents of bullying
More than one-third of the state laws explicitly require or encourage school staff to report known incidents of bullying, and approximately two-thirds require or encourage school districts to create procedures for investigating such incidents. Although most states give districts flexibility in their procedures, some have taken a more prescriptive approach. For example, New Jersey's law lays out detailed requirements regarding the investigation, documentation and review of each incident of bullying. Although investigation of bullying incidents is critical, there is concern that some requirements impose an excessive burden on school employees without adding substantial protection to bullied students and their families. Moreover, few states provide funding to support their new mandates, which limits the potential for successful implementation.
Disciplinary policies
Three-quarters of the states require or encourage school systems to discipline students who bully, but there are broad differences in what kinds of disciplinary consequences are considered appropriate. Most state laws include general language about the need for "consequences," "disciplinary action" or "remedial action." Several laws explicitly recognize that disciplinary actions should be age appropriate, but a handful authorize specific harsh punitive consequences, including suspension, expulsion and transfer to alternative school settings.
Especially troubling are the public calls for zero tolerance for bullying despite widespread criticism that zero tolerance is a failed policy. According to APA's Zero Tolerance Task Force (2008), these policies mandate a severe punishment that is applied to all violations regardless of the circumstances. To some educators, zero tolerance simply means that a certain form of misbehavior will not be ignored. However, the practice of zero tolerance in schools typically includes a specified punishment, such as long-term suspension or expulsion, regardless of the seriousness of the infraction. It is the automatic and severe nature of the punishment that has raised concerns. The use of automatic school suspension has been rejected by critics because it is unnecessarily punitive, fails to address the needs of students who bully and could have a chilling effect on reporting by children and adults.
Prevention and support services
More promising are state law provisions that encourage preventive approaches to bullying, as well as counseling or other support services to students involved in bullying. Approximately half of states require or encourage school districts to train school personnel on bullying prevention. Most require or encourage bullying prevention, education, or awareness programs for students. However, only one-third of state laws guide districts to include in their policies the provision of counseling or other support services for bullied students, students who bully, or (in a few states) witnesses to bullying.
A critical need for schools is guidance on effective prevention and intervention services. School authorities are inundated with programs and services (such as motivational speakers, inspirational videos, guidebooks and curricula) that purport to reduce bullying but lack scientific evidence of their effectiveness. Research is needed to determine the effectiveness of such programs. Meanwhile, a large body of research already documents the effectiveness of school-based programs to reduce student aggression and disruptive behavior.
Statutory definitions of bullying
There is a distinct gap between state legislative definitions of bullying and the criteria agreed upon by scholars. Most states define bullying in terms of its intent to harm and severity of impact, but only four states include a power imbalance in their criteria and only eight define bullying as a repetitive behavior.
Many statutory definitions also tend to blur distinctions between the terms bullying and harassment. In its review, the U.S. Department of Education (2011) found that "legislative language used in crafting bullying laws often borrows directly from harassment statues," which has led to a conflation of the terms bullying and harassment, "despite their important legal distinctions." Indeed, Cascardi and colleagues (2014) found that 22 states use the terms harassment, intimidation and bullying interchangeably, 14 restrict their definitions to bullying, two restrict their definitions to harassment, and eight include the terms harassment and bullying, but define them differently. Even the Office for Civil Rights, in its 2014 Dear Colleague letter on bullying, acknowledges that "the terms ‘bullying' and ‘harassment' are used interchangeably."
Challenges of conflating harassment and bullying in state laws
Harassment, unlike bullying, is a behavior that has been long addressed in state and federal law. Under state law, harassment typically is characterized as unwanted behavior that demeans, threatens or offends another and results in a hostile environment for the victim. As previously discussed, under federal law, it is a violation of civil rights to engage in harassment on the basis of race, color, national origin, sex or disability. Although discriminatory harassment can be regarded as a subset of bullying behavior because it only includes victims who fall into certain protected categories, harassment does not require a power imbalance, which clouds its relation with bullying. In principle, harassment could occur in the absence of a power imbalance.
However, it could be argued that harassment under civil rights law implies the existence of a power imbalance in the notion that certain groups (defined by gender, race, religion, national origin or disability status) must be protected. In this way harassment might still be regarded as a form of bullying, but one in which the power imbalance is presumed rather than determined. This is not a satisfactory solution because it stretches the concept of power imbalance in a circular direction, so it seems necessary to recognize that harassment does not neatly fit into a broader category of bullying.
Recognizing that bullying may be more likely among particular groups of individuals, about one-third of the state bullying laws list characteristics (such as gender, race, national origin, religion, disability and sexual orientation) that may characterize victims of bullying. Debate has ensued over the wisdom of enumerating protected groups or characteristics in bullying laws. Proponents argue that identifying specific groups sends a clear message to school personnel about the need to protect those students who are most vulnerable to bullying, and some evidence suggests that antibullying policies that enumerate groups of protected youth may be associated with fewer suicide attempts among lesbian and gay youth. A more inclusive approach is to enumerate the groups deemed most at risk for bullying, but to explicitly recognize in the law that any form of bullying against any student is prohibited. At least six states have specified that schools must offer all students the same protection against bullying without regard to the student's legal status or membership in a protected class.
In state law, as in federal law, there is a conceptual problem undermining the use of civil rights laws to protect victims of bullying: Schools increasingly face the complex task of sorting out which federal and state antidiscrimination laws apply to a student who is being bullied — and accordingly have different legal obligations in different situations. Consider the example of a student who is bullied in different ways by different students. A school's obligations in such a case may depend on the student's gender, race, religion, national origin and disability status.
A more straightforward and inclusive path is to protect all students from peer aggression that threatens their right to education. Just as no student should be victimized because of gender, race, religion, national origin, or disability status, no student should remain unprotected because the aggression fails to meet one of those criteria. The critical issue should be whether a student is being harmed, and whether that harm is injurious to the student's health and well-being. In an adult workplace, the standard would be no less.
Challenges of conflating bullying with other peer aggression in state law
State laws tend to define bullying broadly and to eschew the academic definition of bullying, particularly its focus on power imbalance. The emphasis in most state laws is on the harmful effects of bullying rather than whether the aggressor has dominance or power over the victim. On one hand, this seems reasonable because when a student is being harmed, the question of whether a power imbalance is present is secondary to the need to stop the harm and prevent its recurrence. On the other hand, this approach ignores important differences between bullying and student aggression with respect to the harms that they cause. In addition, it fails to recognize that the efforts needed to report, investigate, address and prevent bullying are distinct in some important ways from efforts to address other forms of peer aggression.
For example, since many bullied youth are reluctant to report their victimization, experts have emphasized the importance of increasing adult supervision at school, instituting strategies such as safe reporting procedures to increase students' comfort with reporting bullying, and careful and expedient investigation of all reports. Similarly, many states require or encourage school staff to report bullying and most highlight the need to develop procedures for investigating bullying incidents. Although other forms of aggressive or violent behavior are also likely underreported in schools, the power differential in instances of bullying make it particularly likely that victims will suffer silently, and therefore require particularly sensitive reporting and investigation procedures.
Not only are there differences in the reporting and investigation of bullying versus other aggressive or violent behaviors at school, there are also distinct recommended interventions with bullied and bullying youth. For example, peer mediation and conflict resolution are common strategies for dealing with conflicts among students, but peer mediation is not recommended in bullying cases because of the power differential between bullied and bullying students, and the potential for additional harm that such a meeting might cause. Moreover, experts contend that face-to-face meetings between bullied and bullying students should be considered only in carefully prescribed situations, such as when both parties wish to participate and when those facilitating the intervention have training. In addition, recognizing the trauma that many bullied students experience, referrals to supportive mental health services within schools and communities may be necessary.
Finally, given differences in the nature and prevalence of bullying versus other forms of peer aggression — and the differences in harm each may cause — training and prevention efforts to address bullying must highlight unique issues.
Bullying within state criminal laws
Traditionally, bullying has not been viewed as a criminal act and has either been ignored or treated as a disciplinary matter in schools. Arguably, all states have criminal laws that may be applied to some bullying behaviors, for example, when bullying constitutes assault and battery.
But in recent years, there has been a shift toward increasing criminalization of bullying. Seven state bullying laws encourage criminal sanctions for bullying by mandating procedures for school personnel to report bullying that may violate criminal law. Missouri's state bullying law directs schools to impose sanctions on school staff who do not comply with reporting requirements. In addition, an increasing number of states have modified existing criminal or juvenile codes to address bullying behavior or have created new crimes to target bullying or harassment. For example, North Carolina legislators passed a law that criminalizes cyberbullying. Idaho created a crime of harassment, intimidation or bullying among students.
There are multiple concerns with the criminalization of bullying. First, the concept of bullying may be too broad and subjective for reasonable application in the criminal justice system, especially because it encompasses behaviors engaged in by a large proportion of the population. A second concern is that the criminalization of school misbehavior leads to higher rates of school disengagement, academic failure and dropout, and ultimately, involvement in the juvenile justice system.
Meanwhile, remarkably little research has been conducted to study how these laws and policies are implemented and to what effect. Qualitative studies are needed to evaluate how policies are implemented, including barriers and facilitators in implementation.
Recommendations
Even though nearly all states require the development of school policies on bullying, we know little about their implementation or effectiveness. School policies must conform to legal requirements set forth in state antibullying laws, but should also reflect best practices informed by scientific research.
In light of available evidence, we recommend that school policies on bullying include these core elements:
- State laws should protect all students from peer victimization, including harassment and bullying. The concept of bullying should be distinguished from peer aggression and harassment because of research evidence regarding its differential impact and the need for differentiated prevention and intervention measures. Legislative definitions of bullying should encourage schools to use science-based measures and interventions that distinguish bullying from other forms of peer victimization.
- Students and parents should be educated about bullying and provided with multiple means of seeking help for it. Given the reluctance of many children and youth to report bullying that they experience or witness, it is important that policies include provisions to increase the ease of reporting, such as anonymous reporting procedures.
- There should be a prompt and thorough investigation of suspected or reported bullying. As noted by the U.S. Department of Education Office for Civil Rights, this should include "immediate intervention strategies for protecting the victim from additional bullying or retaliation... notification to parents of the victim or reported victim of bullying and the alleged perpetrator, and, if appropriate, notification to law enforcement officials."
- Bullying should not be categorized as a criminal behavior because it varies so widely in form and severity. In most cases, bullying can be handled appropriately with school disciplinary and counseling measures. However, bullying behaviors that also meet criteria for illegal behavior, such as assault or extortion, should be dealt with as deemed appropriate for the circumstances and severity of the behavior. When bullying behavior constitutes sexual harassment or a violation of civil rights in some other way, school authorities should be responsive to their legal obligations.
- Schools should not use zero-tolerance policies that assign harsh consequences for violating a school rule, regardless of the context or severity of behavior. Instead, there should be graduated consequences for bullying that are appropriate to the context and severity of the behavior and characteristics of the student(s).
- School policies should direct school staff to assess students who are bullied for possible mental health and academic problems and provide support and referrals for these students and their parents, as needed. Policies also should direct staff to provide support and referrals for students who engage in bullying.
- School policies should include provisions for training all staff to prevent, identify and respond appropriately to bullying. This training would include recognition of the overlap between bullying and illegal behavior.
- School policies should encourage the adoption of evidence-based strategies to guide prevention and intervention efforts. Schools should be leery of programs or strategies that are based on emotional appeals with no supporting evidence of effectiveness.
In conclusion, school policies should reflect best practices informed by scientific research, and so we recommend greater reliance on evidence-based practices and rejection of disciplinary practices that are known to be ineffective. Because bullying behavior is so widespread and so varied in form and severity, reliance on criminal sanctions would be ill advised. A strategy that combines education, school-based interventions and policy reform leading to cultural change would seem most appropriate. We urge policymakers and legislators to affirm that public education is a right for all students and to recognize that bullying is an impediment to that right.
Dewey G. Cornell, PhD, is a forensic clinical psychologist and Bunker Professor of Education in the Curry School of Education at theUniversity of Virginia. Susan P. Limber, PhD, is a developmental psychologist and Dan Olweus Professor in the Department of Youth, Family, and Community Studies at Clemson University.
This article is condensed from Cornell, D., & Limber, S. P. (2015). Law and policy on the concept of bullying at school. American Psychologist, 70(4), 333–343. To read the full article and see all citations, go to Law and Policy on the Concept of Bullying at School (PDF, 126KB).