EducationWorld is pleased to present this summary article based on Positive Relations @ School (& Elsewhere) by Nancy Willard, M.S., J.D. In the book, Willard combines her background in teaching “at risk” youth, law and digital safety to offer schools solid guidance on proactive and positive strategies for addressing bullying and harassment in the digital age. Find more information about the book and an associated workshop/virtual presentation at Embrace Civility in the Digital Age. For a limited time, get a signed copy of the book, plus additional resources, at a discounted price. Also, see Willard's new booklet for parents and other adults, Your Bullied Child or Teen: A Parent Empowerment Guide.
An EducationWorld columnist on Internet safety, she is the author of additional books including Cyberbullying and Cyberthreats: Responding to the Challenge of Online Social Cruelty, Threats, and Distress; Cyber Savvy: Embracing Digital Safety and Civility; and Cyber-Safe Kids, Cyber-Savvy Teens: Helping Your Child Use the Internet Safely and Responsibly.
What schools are doing to stop bullying isn’t working.
It isn’t that most schools aren’t trying or don’t want to stop bullying. The problem is that what schools are doing isn’t effective.
In 2011, close to 1.2 million students reported that someone was hurtful to them at school once a week or more. This rate has not significantly declined since 2005. Of this number, over 540,000 students say this happens “almost daily.”
Further, over 700,000 students reported they were “fearful of attack or harm” at school “sometimes” or “most of the time.”
The bullying prevention approach required by most state statutes is focused on telling students to report and having adults step in to resolve the problem. But the majority of students do not tell an adult if someone is hurtful to them at school. This is likely because the majority of students think school staff make things worse when they intervene.
Unfortunately, the research backs up students’ perceptions. The students who are most typically targeted are those who are obese, have a minority sexual orientation or identity, or have disabilities. Other students who also report bullying include racial, national origin, and religious minorities. The three most typically targeted populations of students also report disparagement by school staff members.
The Litigation Challenges
The risks of school liability for failing to effectively address harassment or for inappropriately restricting free speech have significantly increased in the recent years.
In 2012, the Second Circuit upheld a $1M verdict against a New York school by a student who had endured over three years of racial harassment. It appeared the school was doing everything required in most anti-bullying statutes. It had an anti-bullying policy, provided training for staff and students, and had a way for students to report. Every time the student reported, the school intervened by punishing those who engaged in aggression. Predictably, this only made things worse.
The Court noted that at some time during those three years, the school principal should have figured out that his response wasn’t effective. Further, the Court noted, the school did nothing to correct the “culture of bias” that was fueling the bullying and harassment. This raises attention to two critical factors: the effectiveness of interventions and the underlying school climate.
A recent decision by the New Jersey Supreme Court, L.W. v Toms River Regional Schools, the applied the standards of the New Jersey Law Against Discrimination in a case involving a student who was harassed based on sexual orientation.
The Court noted that while the U.S. Supreme Court imposed a standard that included a high level of deliberate indifference and actual notice, the application of such standards was not required the state civil rights statute. The Court determined that a school district can be held liable for peer harassment where it knew or should have known of the harassment and failed to take action reasonably calculated, in light of the known circumstances, to stop it.
In the 2010 Dear Colleague Letter on Harassment and Bullying, issued by the U.S. Department of Education’s (USED) Office for Civil Rights (OCR), these same two points were made. It is simply not sufficient for schools to respond to reports of specific incidents by punishing “the bully” and thinking that this is all that needs to be done to resolve the situation.
But the litigation challenges go beyond discriminatory harassment situations to also include free speech issues.
Consider the plight of the California school that was successfully sued by two students for harassment based on sexual orientation. Then it was sued by a student who the school restricted from wearing an anti-homosexuality T-shirt, based on an assertion of the violation of his free speech rights. Schools must be able to restrict students from wearing T-shirts that disparage peers to effectively correct a “culture of bias.”
Responding to hurtful off-campus speech also presents a challenge. In 2012, the U.S. Supreme Court declined to review three cases where schools had disciplined students for off-campus hurtful speech. In two situations, the lower court ruled that the actions of the school unconstitutional were a violation of the students’ free speech rights. In the third, the lower court upheld the school’s actions. Schools must determine when disciplinary responses to these situations will be considered justified and what to do in situations where a formal disciplinary response may not be advisable.
The Regulatory Challenges
In addition to the 2010 Dear Colleague Letter on Harassment and Bullying, noted above, in 2013, USED’s Office for Special Education and Rehabilitation Services (OSERS) issued a Dear Colleague Letter, Keeping Students with Disabilities Safe from Bullying. This letter emphasizes the need to respond to situations where students with disabilities are being bullied or engaging in bullying in a much more comprehensive manner.
Although this Letter was issued by OSERS, and discussed responsibilities under the Individuals with Disabilities Act, reference was made in the footnote to Section 504 of the Rehabilitation Act which indicated that the same comprehensive approach is recommended for students on 504s.
Lastly, in 2014, USED-OCR issued a Dear Colleague Letter, Nondiscriminatory Administration of School Discipline.
While the primary focus of this letter was on racial discriminatory practices related to exclusionary disciplinary consequences, a footnote in this Letter referenced students with disabilities.
The Supportive School Discipline Initiative, coordinated by USED and the U.S. Department of Justice (USDOJ), addresses the overall concerns of exclusionary disciplinary consequences. This Initiative is helpful, as it is addressing the concerns associated with punitive, zero tolerance, consequences, which when overused, are likely highly implicated in the ineffectiveness of school efforts to address bullying.
Read Part 2 of this article.
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