Bullying and the Law: Do we need to do more?

Unfortunately for the most part, state laws are wholly ineffective in moving schools toward developing anti-bullying policies.

“Now, what do you have to say before I tear you apart!” Tommy Bond as the bully Butch, in "Glove Taps," a classic 1937 Little Rascals short. 21st century bullying can be far more serious. (Image via YouTube video of MGM's "Glove Taps")

WASHINGTON, July 23, 2017 – Bullying is unwanted, aggressive behavior among school-aged children that involves a real or perceived power imbalance. Characteristically, the behavior is repeated, or has the potential to be repeated over time. It includes threats, spreading rumors, attacking someone physically or verbally, and purposely excluding someone from a group.

Children who are bullied are those perceived to be different than their peers. Examples include either being overweight or underweight, wearing glasses or “different” clothing, being new to a school, or being unable to afford what others consider “cool.”

The Law

There is no Federal law that specifically applies to bullying. Beginning with Georgia in 1999, through Montana in 2015, all fifty states have now enacted a bullying law.

Most state bullying laws do not make the activity criminal. Rather, these laws require schools to take action to address and prevent bullying. In other words, schools must have a bullying prevention policy.

The laws in twelve states do include a criminal sanction for bullies, ranging from school suspension to jail time.

In some cases where bullying involves matters of race, color, national origin, sex, disability or religion, there is an overlap in state laws with Federal anti-discrimination laws, and these laws may be invoked in a criminal process.

Some states have made cyber-bullying laws misdemeanor offenses.

Unfortunately for the most part, state laws are wholly ineffective in moving schools toward developing anti-bullying policies. There are virtually no sanctions.

The Real Consequences 

Approximately twenty-eight percent of students ages 12-18 (including sixty percent of middle school students) have been bullied at school. Almost seventy-one percent of students and almost the same percentage of teachers say they have seen bullying in their schools. Over fifty-five percent of students have experienced cyber-bullying.

160,000 students stay home from school each day due to bullying.

A bully is six times more likely to be incarcerated by age twenty-four and five times more likely to have a serious criminal record as an adult. Two-thirds of students who have been bullied become bullies.

Skipping school is but one consequence for a student who has been bullied. Students experience headaches, stomach pain, reduced appetite and other physical symptoms. It is well documented that some attempt suicide – and some succeed. Victimized students feel shame, anxiety, irritability, and depression, and they can become aggressive.

For a school, the costs of bullying are significant. They include time consumed in trying to address and tackle the problem, truancies, reduced student retention, low teacher morale, negative perceptions of the school in the community and parent hostility.

The Reality

Deborah Temkin, Ph.D., of Child Trends, a non-profit organization in Bethesda, Maryland, and a recognized leader in the fields of school climate and school-based prevention, says that just because a law has been passed does not mean it magically transforms behavior. She says schools and communities have to work to implement the intent and spirit of the law.

Schools are responsible for what occurs in their classrooms and hallways. That means there must be in place policies that identify steps to take when bullying is detected, and steps to take beforehand to prevent bullying from happening.

The reality is that despite the laws that are in place in every state, leaders at schools often turn a blind eye to daily occurrences of bullied. Eight out of every ten times a child is bullied, no adult intervenes.

There are virtually no “teeth” in any of the state laws. If the mandate – prevent bullying – is not effected, there is no punishment of the bully, rarely any employee firing, no withholding of needed school funding and no criminal consequence for administrators or teachers.

Many schools are not in compliance with their states’ laws because there is virtually no oversight, no training, and no technical assistance, with the notable exception being in Washington, D.C. This lack of compliance is the primary reason this travesty continues. Funding is a secondary problem, and lack of community unity and outrage rounds out the trifecta.

In a 2010 memo to governors and state school officers, former Education Secretary Arne Duncan wrote that the goal of anti-bullying laws was not to actually prevent bullying. Rather, the laws and policies serve to “send a message that all incidents of bullying must be addressed immediately and effectively, and such behavior will not be tolerated.”

Dr. Temkin says it is important to have laws, as they state definitively that bullying is wrong and they demonstrate support for those who are being bullied. Research, she indicates, shows that merely the existence of the laws is helpful to those bullied, and she cites LGBT students who have expressed such opinions.

What’s Next?

Experts disagree on the line between “feel good” legislation and “meaningful” legislation. It appears fairly clear that criminalizing bullying is not an answer, however. Criminalizing bullying can have serious and negative impacts for all involved, by further reducing the reporting of the behavior, to hastening and assuring entry into what has been called the “school-to-prison” pipeline.

Today, the government’s website on bullying – www.stopbullying.gov – is considered one of the absolute best resources to consult on the subject.

Additionally, parents of students who are bullied and the students themselves should examine the anti-bullying policies in their schools. These are usually posted on the schools’ and the school districts’ websites, and often are included in student and parent handbooks as well.

In addition:

  • If bullying does occur, write down the incidents, make written complaints to the school, and write down the school’s responses to those complaints.
  • Make a list of everyone who is doing the bullying. Include in the list teachers and other adults who responded, or failed to respond to such incidents.
  • Note the location where the bullying physically occurred. It could be a classroom, cafeteria, in a gym or locker room, on a bus, or it could occur elsewhere during after-school activities.
  • Create a timeline to show how long the bullying has been going on.
  • If a physical assault has occurred, document this with photographs.
  • A complaint against the school district can be made with the U.S. Department of Education’s Office for Civil Rights.

A state (not Federal) civil lawsuit can be filed against the school, the school district and school employees. Most states recognize that schools have a duty to supervise and protect students’ safety. If they fail to do so, either because they were negligent or grossly negligent in the way they handled that duty, the school and its employees can be accountable for the harm.

  • A civil lawsuit can be filed against the family of the student who did the bullying.
  • A criminal complaint can be filed with local police in cases involving physical violence or injury.

Sample Lawsuits and Results

  • In 2004 a $4.5 million settlement of a civil lawsuit filed against a school district in Alaska was reached. The bullying involved included verbal and physical abuse and resulted in an attempted suicide.
  • In 2009 a settlement of $260,000 was reached against a California school district after a debate team member was relentlessly bullied by other team members, which included knocking him down and urinating on him.
  • In 2015 two blind students in Colorado settled their claims with a school district after being repeatedly sexually assaulted.
  • In 2007 a Florida student’s arm was broken, resulting in permanent nerve damage. A settlement of $600,000 was reached.
  • In 2012, a student suffering anti-gay physical and verbal harassment settled his case against an Indiana school district for $65,000.
  • In 2005, a Kansas student suffered same-sex harassment and gender-based stereotyping /  bullying for years. He dropped out of high school. He settled his claim against the school district for $440,000.
  • A relentless bully punched a twelve-year-old New Jersey boy in the stomach. The boy developed a blood clot in one of his major arteries, which then burst in his spine and rendered him permanently paralyzed from the waist down. A settlement of $4.2 million was reached in 2012.
  • A Wisconsin student was subjected to anti-gay harassment and assaults leading to hospitalizations and an attempted suicide. A settlement against school officials was reached in 1996 for $962,000.

It takes a village to raise a child. Make sure your village is set up properly.

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.

Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.


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