Bullying in Schools: The Disconnect between Empirical Research and Constitutional, Statutory, and Tort Duties to Supervise

Nearly two decades of educational research has repeatedly demonstrated that one of the most damaging and pervasive problems in our schools today is bullying. That research has shown that bullying leaves its victims with serious and often life-long emotional problems. It has revealed that bullies are substantially more likely than their peers to commit felonies later in their lives. It has even demonstrated that witnesses to the bullying are often affected in serious, lasting ways. Most importantly, it has proven that school officials can dramatically reduce the prevalence of bullying if they implement proven bullying prevention strategies. Nevertheless, in most schools today, bullying goes on unabated and virtually unchallenged by school officials. The educational community knows that these children are being tormented; it knows that they are being damaged in ways that will haunt them - and in some cases, entire communities - for years to come. It also knows how to reduce dramatically the prevalence of the torment; and it knows that school officials must lead the way in doing so. Current legal theories, however, whether found in federal or state law, whether based in statutory or common law, are simply not aligned with what empirical research has shown to be true. Therefore, the law provides those who could stop the torment no real incentive to inform themselves and to act, and it provides victims of the torment no remedy against the school officials who could have protected them. When victims attempt to hold schools accountable for failing to protect them from peer-on-peer abuse, courts routinely hold that, under theories of negligent supervision, the bullying and associated attacks and injuries were simply unforeseeable to the school officials who could have intervened, even though educational research has repeatedly demonstrated that such abuse is occurring in virtually every school setting. Under Title IX, requirements of actual notice and deliberate indifference sink most claims of peer-on-peer sexual harassment, and they ensure that such gender-based bullying will flourish by its very nature as an underground activity, hidden from school officials who are apathetic about its existence. Constitutional theories are inadequate to produce either remedies or educational change because courts are unwilling to turn bullying into a constitutional tort. Even anti-bullying statutes fail to require the kinds of reforms demanded by the empirical research, so schools continue to function with a blind eye toward the victims' plight, leaving them and future victims at the mercy of other children. The nation needs a sea change in its current legal theories. Courts and legislatures need to abandon the fiction that schools do not know how to identify and stop serious bullying. Courts need to redefine negligent supervision with regard to bullying in order to acknowledge the foreseeability of the harms that result from bullying and the causal connection between school officials' inaction and victims' injuries. Legislatures need to enact laws that will reward those schools that implement proven strategies for preventing bullying and penalize those that refuse to do so. The nation needs, in short, to align legal incentives and penalties with the realities of schooling and the seriousness of the problem of bullying. Until that happens, far too many children will suffer needlessly at the hands of their peers, unprotected by the very adults into whose care they have been entrusted. Part I presents in some detail what current educational research has revealed about bullying, its effects, and its prevention. An understanding of that research is essential to recognizing the flaw common to prevailing legal theories: that those theories define supervision breakdowns in terms of individual instances of bullying but fail to recognize the connection between bullying and school culture. They fail to recognize that school officials can transform a bullying culture, using research-based, whole-school approaches to preventing bullying. Part II critiques current legal avenues available to victims of bullying and current attempts by some state legislatures to curb bullying in their schools. Part III offers conclusions and some recommendations for reforming current definitions of negligent supervision and for creating a package of incentives for schools to change their practices.