by Amanda N. Selogie
The Problem: What is Bullying?
Cyberbully, Audrie and Daisy, 13 Reasons Why, Pretty Little Liars, and many other modern-day television shows demonstrate increased awareness of the mess we face concerning bullying in schools. While the importance of spreading awareness of the issue is the first step, we must go much further before tangible societal change can occur. Shows like this almost glamorize victimization via social media without doing anything to change our online culture. Children are hurt every day—emotionally, psychologically, and physically—from the bullying of their peers, adults, teachers, and anonymous online bandits, while the adults fail to act like adults.
How many times have you heard in the past ten years that bullying was an issue? I have heard it thousands of times in my line of work. When I am asked by colleagues how often that same bullying is addressed by powerholders, I sadly have to tell them that these adults almost never take concrete action.
Not only are adults failing to act, but they are failing to model appropriate behavior. High-ranking adults, from politicians to judges to celebrities to family members, continue to set disastrous examples of bullying and harassment of their peers, of those they do not know, of those they do. Where do you think children learn to treat each other so poorly?
Legally speaking, I wish there were more that was required of schools and that the current administration would require schools to act. But that isn’t the only problem. There are laws in place setting forth requirements for how schools should act to combat bullying, to react when bullying occurs, and to prevent such bullying from occurring in the first place. However, these laws are rarely followed.
When I first began practicing law, I might have one out of every ten cases include instances of bullying. Today, just about every single child that walks through my door has been forced to endure some form of bullying—whether by their peers, their teachers, administrators, or online perpetrators—because of their disability, race or ethnicity, religion, immigration status, nationality, socio-economic status, sex, gender, gender identity, gender expression, sexual orientation, or who they are. One particular case I dealt with recently required me to make a California Public Records Act Request seeking all complaints of bullying within that school district over the course of the past four years. Also requested was all documented resolutions, actions, or policy changes done as a result of these complaints. The file I received of the complaints of bullying contained hundreds of pages. The file with the resolutions, actions or policy changes was a mere five pages.
I once walked through the halls of an elementary school and spotted an “anti-bullying” poster which read, “If you see something, say something,” while classic movies spew lines like “snitches get stitches.” To expect a child to say something, to place the burden on the child, is impractical and unfair. It should be adults who act first, to prevent these actions in the first place.
Whether through ignorance of the law, or a sheer refusal to acknowledge how deep this problem goes, schools are not acting. Preventative action is few and far between.
Bullying is defined as repeated threats, physical or verbal attacks, rumors, and exclusion, and is considered a type of psychological, as well as physical, harassment that is linked to various mental health challenges. “Cyberbullying” is bullying that takes places over digital devices and can occur through email, texts, social media, or other applications. While no exact cause and effect is automatic between bullying and severe mental health challenges and leading to success or attempts of suicide, a correlation certainly exists.
Bullying is not some new or small “snowflake” issue exaggerated by the media, but a serious threat plaguing our world—especially our children in school. According to the Centers for Disease Control and Prevention (CDC), and the National Center for Educational Statistics, approximately 20% of all students reported being bullied. More specifically, 20% of high school students experience bullying in some form, 16% through cyberbullying; 33% of students ages 12-18 report bullying at school; 27% of students who reported cyberbullying reported that they were bullied once or twice a month; and 25% of middle school students report bullying at least once a week. See, e.g., U.S. Dept. of Education, NCES Data Point (July 2016), https://nces.ed.gov/pubs2016/2016004.pdf; Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Division of Violence Prevention, Prevent Bullying (Oct. 1, 2018), https://www.cdc.gov/features/prevent-bullying/index.html.
Federal Obligations of Schools
While no formal federal law exists to address bullying specifically, a number of federal laws place obligations on schools and protections for students from discrimination for protected populations.
The Safe and Drug Free Schools and Communities Act, part of the No Child Left Behind Act of 2001, does provide federal support for the promotion of school safety programs, but does not specifically address bullying and harassment in schools. This omission leaves much up to the interpretation of schools and school districts, and the choice not to spend money to address the overarching problem.
For protected populations, a number of additional protections do exist, but enforcement is scarce. The Office for Civil Rights division of the U.S. Department of Education enforces Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation act of 1973; and Title II of the Americans with Disabilities Act of 1990, which prohibits discrimination on the basis of disability.
Often, school districts violate these civil rights statutes by tolerating or ignoring peer harassment based on race, color, national origin, sex, or disability that is serious and pervasive enough to create a hostile environment. The school employees implementing these regulations are known to tolerate, ignore, or even encourage this type of harassment with little oversight.
A school is responsible for addressing harassment incidents about which it knows or reasonably should have known. When responding to harassment, a school must take immediate and appropriate action to investigate or otherwise determine what occurred. This does not always work the way it is intended, however. In one case (that shall remain confidential), a student complained about discrimination by a high-level administrator, and the school put that administrator in charge of investigating his own actions! (To no one’s surprise, he found no disciplinary action was required.) Not all schools fail to comply with the spirit of antibullying laws, but it is easy to avoid liability for even severe transgressions.
A 2013 Dear Colleague letter by the Office of Special Education and Rehabilitative Services (OSERS) clarified that when bullying of a student with a disability results in the student not receiving meaningful educational benefit under the IDEA, the school must remedy the problem, regardless of whether the bullying was based on the student’s disability. Despite the strength in this language, many problems exist: These laws only protect protected populations, and not the general school public. Students are often discouraged from reporting bullying either directly by peers or school staff, or indirectly through fear of further harassment. Reporting that does occur often goes unaddressed. Families are not educated on their rights to enforce these obligations and laws. And, generally, once enforcement does occur, real change is minimal.
California State Obligations of Schools
California anti-bullying laws and regulations extend further than federal guidance and defines bullying as any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act, including one or more acts committed by a pupil or group of pupils, directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following: (a) placing a reasonable pupil or pupils in fear of harm to that pupil’s or those pupils person or property, (b) causing a reasonable pupil to experience a substantially detrimental effect on his or her physical or mental health, (c) causing a reasonable pupil to experience substantial interference with his or her academic performance, (d) causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services, activities, or privileges provided by a school.
Additionally, California anti-bullying laws specifically cover cyberbullying and provide school obligations to address cyberbullying that occurs off campus.
California school districts are required to adopt a policy prohibiting harassment, intimidation, or bullying. School district policies must contain key policy and procedural elements, including, but not limited to (1) statements prohibiting harassment, intimidation, or bullying, (2) procedures for reporting and investigations, (3) publications of antidiscrimination, anti-harassment, anti-intimidation, and anti-bullying laws, (4) resources available to support LGBTQ and other at-risk students, and (5) protections for complainants from retaliation.
California anti-bullying laws require school districts to adopt a policy that prohibits discrimination, harassment, intimidation, and bullying based on actual or perceived characteristics including immigration status, disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics.
Displays and Encouragement
California anti-bullying laws direct the department of education to display information, curricula, and resources that address bias-related discrimination, harassment, intimidation, cyber sexual bullying, and bullying. California anti-bullying laws encourage school districts to inform pupils regarding available information and resources on the state department of education website regarding the dangers and consequences of cyber sexual bullying.
California anti-bullying laws also direct the department of education to develop an online system to assist all school staff, school administrators, parents, pupils, and community members in increasing their knowledge of the dynamics of bullying and cyberbullying. The online training module shall include, but is not limited to, identifying an act of bullying or cyberbullying, and implementing strategies to address bullying and cyberbullying.
Department of Education Support
California anti-bullying laws also direct the department of education to develop an online training model to assist all school staff, school administrators, parents, pupils, and community members in increasing their knowledge of the dynamics of bullying and cyberbullying. The online training module shall include, but is not limited to, identifying an act of bullying or cyberbullying, and implementing strategies to address bullying and cyberbullying.
California schools are encouraged to refer students involved with bullying to a school counselor, school psychologist, social worker, child welfare attendance personnel, school nurse, or other school support services personnel for case management, counseling, and participation in a restorative justice program, as appropriate.
Policies, displays, encouragement, and online education, while important tools, are just that—tools to be utilized. These tools, however, place the burden on school staff, parents, teachers, and the community to seek these out, to educate and empower action. These tools do not require substantial and tangible action by schools.
While Department of Education support and counseling referrals slide more towards tangible intervention, they also place a burden on the victim to come forward and act after the fact. None of these interventions truly place an obligation to prevent instances of bullying, nor do they incentivize schools to follow best practices.
Where Do We Go From Here?
In my experience, once bullying begins at a school, reactive interventions fail to catch up. Preventative measures need to be implemented at each school, in each classroom, starting early on in early education, paired with increased efforts for families and communities to set better examples for our youth. And there needs to be more oversight and consequences for adults who—intentionally or not—harm children who are placed in their care.
Too often when complaints of bullying are brought forward, schools are resistant to act, claiming “there is no proof,” or “we didn’t (or don’t) see it.” The same goes for mental health issues. When a child or adult hurts, or attempts to hurt themselves, or others, when one engages in a mass shooting, the prevailing view is the same, “we didn’t see it coming,” or “we had no idea.” In all reality, the signs are all over, but require a keener eye to pay attention to, and act upon.
More substantial training on how to recognize and address peer bullying and harassment, how to notice the signs, and what to do when you do is key. But more importantly, our schools need to do a better job of teaching our students how to better treat each other, teaching kids how to stand up for themselves, and requiring teachers and staff to immediately take substantial action to prevent bullying. Every student deserves a safe place to learn.
Amanda N. Selogie is Co-Founder of the Inclusive Education Project and is a Partner of Selogie and Brett, LLP. She can be reached at firstname.lastname@example.org.