Overview
In recent years much has been said in the
literature about students “bullying” other students. The
subjects of bullying and bullies often are presented as emerging
problems in maintaining discipline and control in public
schools. Ironically, these subjects are not new to experienced
teachers and administrators. For as many years as there have
been schools and play yards, “bullies’ have been the bane of
many students, school staff, and parents.
In this writer’s opinion, three
major factors exist for a resurgence
of issues involving bullying in schools. First,
the mandates in federal law (No Child Left Behind) and in state
law on providing quality educational opportunities in schools
that are safe, secure,
and disruption free. Second, the ever-present
potential of liability for student injury. Third, a clear
definition of the term bullying is hard to find. This
specific factor causes bullying to be mistaken for and
confused with a variety of other student disciplinary
infractions. Taken together, these three factors make it
imperative but difficult for school administrators, teachers,
and other staff (including school bus drivers) to make
immediate, consistent, and appropriate disciplinary decisions.
The purpose of this commentary is to clarify terminology and in
doing so make recommendations for formulating workable local
school system policy covering bullying.
Emerging Issues
When dealing with students (i.e.,
children) in school-related situations how does bullying
behavior differ from simple immature behavior (“kids will
be kids behavior)? Does bullying behavior differ from
threatening, or abusive, or harassing behavior
(physically, mentally)? When does bullying
behavior become assault and battery? Is it
bullying behavior when student teams and
organizations haze new members? The obvious answers to
these questions demonstrate potential differences in type,
character, and severity of student-on-student disciplinary
matters. To put another way, such matters are very different and
must be placed on a continuum with immature and
nonviolent “kids will be kids” behavior on one end and
serious acts of violence on the other. The
seriousness of student disciplinary actions and degrees of
punishment become more serious as one moves across the
continuum.
Immature Behavior. As a general
rule, school administrators realize that students do and say
inappropriate things to each other. Students push each other,
tease each other, taunt each other, call each other names, use
inappropriate language, and engage in acts that seem senseless
to adult observers. More often than not such activities are
tolerated as expected incidents of “kids will be kids” behavior
brought on by the mysteries of immaturity. It is clear, however,
immature behavior is different from “bullying?”
Bullying: What Is It? Conn
cautions us that “[b]ullying, is often not recognized for what
it is and is often passed off as mere teasing or kidding around,
a normal part of growing up….” And, what makes the matter more
disconcerting is that bullying is not a legal term. What is
more, she states, “bullying, in and of itself, is not a legally
recognized as a cause of action for civil damages or as a
criminal activity.” In other words, simple teasing, taunting, or
name calling, without being linked to harm to another person,
are not actionable in a court of law. Conn (2004)
More often than not, state statutes do not
treat bullying. For example, bullying is not included as an
offense under the Code of Virginia (Cum. Supp. 2004)
However, a bill recently introduced during the current session
of the General Assembly of Virginia would require that
bullying, along with harassment and intimidation,
be added to Section 22.1-279.6 covering guidelines for student
conduct.
One reliable source defines bullying
as “[r]epeated negative behaviors intended to frighten or cause
harm. May include, but not limited to, verbal or written threats
or physical harm.” Center for School Safety (2004) It is
important to note the use of such words and phrases as “repeated
negative behaviors,” “intended,” “cause harm,” “threats,” and
“physical harm.” In this writer’s view where any one or
combination of these elements are present in a
student-on-student situation, bullying is no longer the
case. In essence the acts committed have become so egregious
that something far more serious is present.
Bullying Behavior v True Threats.
Bullying behavior differs from threatening behavior. While some
bullies might say or write things, or make forceful or
frightening gestures that seem threatening to another student,
not all “threatening sounding” or “threatening appearing”
behaviors actually constitute a “true threat.” Students do use
“threatening sounding” words.
Threat is defined as “[a]
communicated intent to inflict harm or loss on another or
another’s property….A communicated intent to commit violence.”
BLACK’S LAW DICTIONARY (1999) The reader is reminded, “words
alone do not constitute a threat.” Threats are “expressive acts
(spoken, written, gestures) of one or more persons that either
cause actual harm to another person or, at a minimum, place
another person or persons in imminent fear of harm.” Vacca and
Bosher (2003) Once again, as in the discussion above, the
presence of intent to inflict harm or loss on another, or
place another in imminent fear of harm must be
emphasized.
To understand the difference between
bullying and true threat, the legal researcher also
must explore appropriate state law. For example, the Code of
Virginia states, “Any person who communicates a threat in
writing, including any electronically transmitted communication
producing a visual or electronic message, to kill or do bodily
harm (i) on the grounds or premises of any elementary, middle,
or secondary school property, (ii) at any elementary, middle, or
secondary school-sponsored event, or (iii) on a school bus…, and
the threat places the person to whom it is directed in
reasonable apprehension of death or bodily harm, is guilty of a
Class 6 felony.” 18.2-60 Code of Virginia (Cum. Supp.
2004) Placing an individual to whom a communication is directed
in reasonable apprehension of death or bodily harm
separates simple bullying from threatening
behavior.
Bullying Behavior v Harassment. In
this writer’s view, while there are some differences in
bullying and harassment the two are much alike.
Harassment can be defined as “words, conduct, or action
(usually repeated or persistent) that, being directed at a
specific person, annoys, alarms, or causes substantial emotional
distress in that person and serves no legitimate purpose.”
BLACK’S LAW DICTIONARY (1999) In essence what might start as
annoying and intimidating bullying behavior of one student
changes to harassment where the repeated and persistent
behavior of the bully is the proximate cause of substantial
emotional distress in his/her victim.
Bullying and Hazing. In this
writer’s view bullying and hazing also are much
alike. As a general rule, hazing involves “recklessly or
intentionally endangering the health or safety of a student or
students to inflict bodily injury on a student or students….”
JUVENILE LAW HANDBOOK FOR SCHOOL ADMINISTRATORS (2004 Update)
Unlike bullying, some state codes specifically prohibit
hazing in schools. For example, the Code of Virginia
states: “It shall be unlawful to haze so as to cause bodily
injury, any student at any school, college or university….Any
person receiving bodily injury by hazing shall have the right to
sue, civilly, the person or persons guilty thereof, whether
adults or infants.” 18.2-56 Code of Virginia (2004 Cu.
Supp.) Thus, what might start as experienced team or club
members bullying new members (as a part of an initiation
ritual) could become a matter for criminal prosecution?
Assault and Battery. Where an
assault and/or battery exist bullying no
longer exists. Assault and battery are criminal offenses
punishable by law. An assault “is a threat to do bodily
injury.” It is “an attempt to offer, with force and violence, to
do some bodily hurt to another by means calculated to produce
the end if carried into execution.” JUVENILE LAW HANDBOOK FOR
SCHOOL ADMINISTRATORS (2004 Update) The Code of Virginia
defines assault as any act “accompanied by circumstances
denoting an intention coupled with a present ability of using
actual violence against the person of another.” 18.2-57 Code
of Virginia (Cum. Supp. 2004)
According to one source, battery is
defined as “an intentional and offensive touching of another
without lawful justification.” BLACK’S LAW DICTIONARY (1999)
Another source states that battery is “any bodily hurt, however
slight, done to another in an angry, rude, or vengeful manner.”
JUVENILE LAW HANDBOOK FOR SCHOOL ADMINISTRATORS (2004 Update)
As a general rule, where a person against
whom an assault and/or battery are committed is
intentionally selected by the perpetrator because of race,
religious conviction, color, or national origin this is
considered a hate crime. 18.2-57 Code of Virginia (Cum.
Supp. 2004)
Case Law
A search for court cases specifically
involving bullying is a futile experience. However, one
can find several cases where student-on-student harassment and
threatening behavior are present. From these court decisions
important information and suggestions for policy formulation and
professional practice can be extracted in an effort to deal with
incidents of bullying and other more serious disciplinary
offenses. The common thread in the case law involves the concept
of deliberate indifference. Sometimes referred to as
callous indifference, callous disregard, and
gross negligence, deliberate indifference has been
the consistent judicial standard applied when determining
liability of school officials for students who had been sexually
harassed by other students. Some examples follow.
In Walton v Alexander (5th
Cir. 1994), the Fifth Circuit gave the following definition of
deliberate indifference: “Where a school official knows,
or willfully avoids knowing about the possibility of serious
harm to a student, fails to take appropriate action, and the
student is harmed.”
Two years later, a federal district court
in California opined, “to prevail a plaintiff must show that
he/she was subjected to unwelcome harassment, it was so
pervasive and severe as to create a hostile educational
environment, school officials knew or should have known of the
problem, and they failed to take prompt and appropriate action.”
Doe v Petaluma City School District (N.D. Cal.
1996).
The court in Doe v Oyster River (D.N.H.
1997) added two more aspects to the concept of deliberate
indifference when it said, “A school system may be liable
for peer sexual harassment if (1) school officials knew or
should have known of the matter but failed to correct the
problem, (2) a special relationship or duty existed to protect
students from harm, and (3) the harassment was severe and
pervasive.
In Davis v Monroe City Board of
Education (1999), the United states Supreme Court brought
all aspects of deliberate indifference together when it
held that “ school officials may be liable where the harassment
is so severe and pervasive that it limits the student victim’s
ability to learn; where school officials show a deliberate
indifference to the matter; and where school officials fail to
take reasonable steps to remedy the situation.”
The emphasis on limiting the student
victim’s ability to learn and, as such, denying
the student victim’s access to the benefits of his/her
educational program is significant. In other words school
officials must do something immediately to remedy the situation
as soon as the matter (whether bullying or something more
serious) comes to their attention. In this writer’s opinion,
bullying behavior more often than not leads to something
more serious and harmful.
Policy Implications
As the above discussion demonstrates, while
student bullying is different from threat, assault,
battery, and other more serious offenses, it is nonetheless a
form of misbehavior that must not be tolerated. Bullying
is a form of intimidation and harassment and
cannot treated as an expected form of immature “kids will be
kids’ behavior. As the above discussion also shows, bullying:
(1) serves no legitimate purpose, (2) may, if unchecked, lead to
or already involve more serious, even criminal, behavior, (3)
will, if unchecked, interrupt and deprive a student victim of
access to the benefits of her/his educational program, and (4)
cause emotional and/or physical harm to the student victim.
Thus, school administrators, classroom teachers, and other staff
must immediately act when student bullying is discovered.
If a local school system does not have a
policy covering bullying it must formulate and
implement one as soon as possible. What follow are some
suggestions for consideration as policy statements are drafted.
The policy must make it clear that, in the school board’s effort
to keep students safe from harm and to protect the learning
environment,
-
Bullying (as defined in this policy) is considered a
form of intimidation and harassment and will not be
tolerated in school buildings, on school property (including
school buses), or at school-sponsored events and activities.
- Students
are encouraged to immediately report bullying
incidents to their principal, or teacher, or coach, or other
school staff member.
- All
bullying incident reports (including but not limited to
those involving computers, cell phones, camera phones, and
other technical devices) will be immediately investigated.
- Parents
will be immediately informed and involved in each reported
case.
- Students
found to have committed bullying offenses against
other students will be disciplined according to the
provisions outlined in the school system’s Code of
Student Conduct.
It is also imperative that all
administrators, classroom teachers, coaches, other professional
staff, school bus drivers, playground attendants, and other
support staff receive training in bullying identification
and prevention.
Resources Cited
BLACK’S LAW DICTIONARY, Seventh Edition
(1999)
CODE OF VIRGINIA (Cum. Supp. 2004),
18.1-56, 18.1-57, 18.1-60, 22.1-279.6
Conn, Kathleen, BULLYING AND HARASSMENT: A
LEGAL GUIDE FOR EDUCATORS (ASCD, 2004)
Davis v Monroe City Board of Education, 119
S.Ct. 1661 (1999)
Doe v Oyster River, 992 F.Supp.2d 467 (D.N.H.
1997)
Doe v Petaluma City School District, 949
F.Supp. 1415 (N.D.Cal. 1996)
JUVENILE LAW HANDBOOK FOR SCHOOL
ADMINISTRATORS (Center for School Safety, 2004 Update)
Vacca, Richard S. and William C. Bosher,
Jr., LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS,
Sixth Edition, 2003)
Walton v Alexander, 20 F.3de 1350 (5th
Cir. 1994)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
