Student Bullying: Overview of Research, Federal Initiatives, and Legal Issues
Released: 2013-10-18T00:00:00

Introduction

Significance for Congress

Many Members of Congress have become increasingly concerned about what can be done to address student bullying. Congressional interest is in response to high-profile incidents of bullying and their negative consequences, as well as to an increasing body of research documenting the detrimental effects of school bullying. This has spurred interest in ensuring that schools are safe, secure places for students, so that they can receive the full benefits of their education. Several bills that address school bullying have been introduced in the 113 th Congress, although none as of the date of this report have been enacted. However, currently 49 states have anti-bullying laws, although there is considerable variation in the content of these laws.

Report Roadmap

This report begins with working definitions of bullying and cyber-bullying that were developed by a federal interagency working group. It provides a brief overview of research on the prevalence and impact of bullying, and it reviews research on what can be done to reduce student bullying. It discusses the responsibility of schools regarding bullying behavior; and it reviews the status of state laws that have been adopted to address student bullying. In addition, it discusses federal interagency initiatives intended to prevent bullying, and includes an appendix that summarizes many additional federal initiatives that permit some funding to be used for anti-bullying efforts. Finally, it discusses the legal issues and recent case law that define the parameters schools must consider in developing anti-bullying policies.

Definitions of Bullying and Cyber-bullying

The Centers for Disease Control and Prevention (CDC) is leading an effort to develop a consensus definition of bullying that can be used throughout the school bullying research field. A consensus definition is key to obtaining consistent and comparable data on bullying. According to CDC health scientist Alana Vivolo-Kantor: "The lack of a uniform definition hinders our ability to understand the true magnitude, scope, and impact of bullying and track trends over time. Consistent terminology with standardized definitions is necessary to improve public health surveillance of bullying and inform efforts to address bullying." For the present, a federal working group has published working definitions of bullying and cyber-bullying (see text box below).

Estimates of the Prevalence, Predictive Factors for, and Consequences of Bullying

Although this report focuses on bullying of students in grades K-12, it is worth noting that elementary and secondary students are not the only potential victims of bullying. Bullying also occurs at institutions of higher education (IHEs) and at workplaces, as well as other locations.

Students may be exposed to bullying at school for many reasons. Research indicates that although no single factor can explain bullying behavior, certain individuals are more vulnerable to being bullied, for example, those who have low self-esteem and are unpopular, friendless, or rejected. In addition, studies indicate that some students, including those with disabilities and those who are GLBT, are disproportionately subjected to bullying behavior. However, because bullying can happen to any student, some experts recommend that a school policy that enumerates groups protected by its anti-bullying policy also make clear that the requirements of the policy are not limited to those enumerated groups.

The number of research studies on student bullying has significantly increased in recent years. However, most studies on the prevalence and/or impact of bullying are not directly comparable for several reasons:

the definition of bullying is not consistent across studies; the age range of surveyed students varies; the time period for the analysis varies (e.g., bullying behavior in the last two months versus bullying behavior over a school year or lifetime exposure); the survey methodology varies; and some studies provide an overall prevalence rate for bullying, while other studies separate bullying by type (e.g., physical, emotional, or electronic).

In addition, when negative outcomes are found to be associated with bullying, it is difficult to discern the extent to which the bullying behavior is responsible. One study on bullying states that

it is not entirely clear whether the connections between bullying, victimization, and psychosocial difficulties reflect causes, consequences, or merely concomitant correlates of bullying and/or victimization.

Prevalence of Bullying

A Government Accountability Office (GAO) study examined four federal agency sponsored nationally representative surveys that include questions on student bullying: the National Youth Risk Behavior Survey (2011, YRBSS); the School Crime Supplement to the National Crime Victimization Survey (2012, SCS/NCVS); Health Behavior in School-aged Children (2005/2006, HBSC); and the National Survey of Children's Exposure to Violence (2008, NatSCEV). Due to differences across the surveys in definitions, the age of students surveyed, and the time frame of the studies, among other things, each survey obtained different estimates for the prevalence of bullying and cyber-bullying (or electronic bullying). Three of the surveys included an overall measure of the prevalence of bullying behavior. The overall prevalence of bullying varied across the three surveys—from a low of 20.1% to a high of 27.8%. YRBSS estimated that 20.1% of surveyed youth reported being bullied; HBSC estimated that 27% of surveyed youth reported being bullied; and SCS/NCVS estimated that 27.8% of surveyed youth reported being bullied. In addition, all of the surveys included some measure of electronic bullying. The overall prevalence of electronic bullying varied across the four surveys—from a low of 1.8% to a high of 16.2%. NatSCEV estimated that 1.8% of surveyed youth reported Internet harassment; HBSC estimated that 8.1% of surveyed youth reported having been bullied using a computer or e-mail messages or pictures, and 5.7% reported having been bullied using a cell phone; SCS/NCVS estimated that 9% of surveyed youth reported being cyber-bullied; and YRBSS estimated that 16.2% of surveyed youth reported being electronically bullied. The surveys did not obtain consistent results on whether bullying was greater for one sex, race, or ethnic group. The surveys also varied in the extent to which they collected data on additional demographic characteristics on youth who were bullied.

Student Bullying Research on the Precursors for, and Impacts of, Bullying

Many researchers who focus on student bullying believe that a variety of factors interact to influence bullying behavior, including "families, schools, peer groups, teacher-student relationships, neighborhoods, and cultural expectations." The interaction of these factors can have a positive influence on reducing bullying—if a positive school environment with involved, supportive adults and teachers is created, a positive peer culture is established, and school connectedness is reinforced. Researchers also note that bullying generally occurs with the physical or virtual presence of an audience of peers. These bystanders can play an important role in reinforcing bullying behavior through laughter or other encouragement, or in curbing it by speaking out against the behavior.

A 2010 meta-analysis of 153 studies evaluating predictors of being a bully, a victim, or bully-victim found some predictors were shared by both bullies and victims of bullying, including family environment, school climate, community factors, and poor social problem-solving skills. However, the authors found some factors to be more associated with one group than another. For example, bullies were more likely to have externalizing behaviors, poor academic performance, and negative thoughts or beliefs about others, and to be negatively influenced by their peers. Victims were more likely to have internalizing behaviors and negative thoughts about themselves, and to be rejected and isolated. Although both had deficits in social competence, bullies were generally more socially competent than victims.

In addition, some students engage in bullying behavior and are also a victim of bullying, either simultaneously, or by switching roles over time. These so called "bully-victims" were found to be the most at risk—containing risk factors associated with both of the other two groups:

That is, bully victims appeared to resemble victims by being rejected and isolated by their peers and to resemble bullies by being negatively influenced by the peers with whom they do interact.

As discussed above, both victims of bullying and those who engage in bullying behavior can experience psychological difficulties and social relationship problems. Additionally, a GAO literature review of seven meta-analyses on the impact of bullying on victims indicates that bullying may result in psychological, physical, academic, and behavioral issues.

Recent high profile suicides following incidents of bullying have heightened concerns about bullying behavior. The American Foundation for Suicide Prevention (AFSP) states that "Elevated rates of depression, suicidal ideation and suicide attempts have been found in youth who are bullied and also in those who bully others." However, AFSP indicates that no single factor is responsible for suicide. The factors that are correlated with suicide are multidimensional—for example, mental and developmental disorders, early life adverse events, and personality traits, among others. In addition, AFSP notes that "Suicidal ideation and suicide attempts occur in a small percentage of youth involved in bullying."

Efficacy of Anti-bullying Programs

Some of the research on anti-bullying programs has found mixed success from anti-bullying programs, particularly in the United States. However, a cross-national meta-analysis of 44 evaluations identified particular characteristics of school-based bullying programs that may help reduce bullying. The study found that on average, school-based anti-bullying programs decreased bullying behavior by 20%-23% and victimization by bullies by 17%-20%.

This study found the intensity and duration of a program, as well as the number of program elements, to be linked with effectiveness. Other elements found important to effectiveness were parent training, parent meetings, firm disciplinary methods, classroom rules, classroom management, and improved playground supervision. The study did not find evidence that working with peers was effective. The authors also recommended that a system of accreditation for anti-bullying programs be established to help ensure that programs being adopted by schools include the elements that have been found to be effective.

Another study pointed out the importance of addressing peer norms in anti-bullying programs. In peer groups where bullying is the norm, the authors of the study argue that "Until these peer norms are modified, it is likely that bullying behaviors will remain intractable in our schools."

Resources for states and schools on effective anti-bullying programs are becoming more widely available. There has been an increased focus in recent years on the importance of school climate to preventing bullying and improving a variety of other school indicators. The National School Climate Center has published a resource that addresses the implementation of positive school climate practices as they relate to a variety of issues important for schools, including school bullying. In August 2008, ED published a document to assist schools in evaluating anti-bullying policies and practices titled Effective Evidence-based Practices for Preventing and Addressing Bullying . In addition, several federal agencies maintain websites that include extensive information on anti-bullying programs that have proved effective or are promising.

State Bullying Legislation

As of the date of this report, 49 states have at least one anti-bullying law, although the content of these laws varies considerably. The majority of these laws direct school districts to adopt anti-bullying policies. However, the requirements placed on schools by these laws are quite varied.

In 2010, ED issued an in-depth report focused on state bullying laws. The report noted the surge in state legislation addressing bullying in recent years, with 120 bills or amendments to existing legislation introduced between 1999 and 2010. According to the report, the landscape of state legislation has been changing as new bills (or amendments to existing laws) that address student bullying have been introduced that reflect:

the rapidly evolving political and policy environment surrounding bullying in schools, where lawmakers are continually refining legislative expectations for schools in response to the new problem dimensions (e.g., the growth of cyber-bullying), and to emerging research concerning effective policy strategies for combating student bullying.

The report's evaluation of the content and expansiveness of these laws highlighted the tremendous variation in these laws. The report was based on the 46 states that had bullying laws in place prior to the study. According to the report all but three of these states included definitions of what behaviors were prohibited. All but one of the 46 states required school districts in the state to adopt bullying policies. Forty-one of these states had developed model bullying policies, and 36 states included a prohibition on cyber-bullying or bullying using electronic media. In addition, 13 states included a provision stating that schools could address bullying that occurs outside of school grounds if it creates a hostile school environment.

The report delineated 11 key components of a comprehensive state anti-bullying statute. The topics addressed by these 11 key components include the following:

Purpose Statement Statement of Scope Specification of Prohibited Conduct Enumeration of Specific Characteristics Development and Implementation of Local Policies Review of Local Policies Communication Plan Training and Prevention Education Transparency and Monitoring Statement of Rights to Other Legal Recourse

The report classified each state's legislation into one of three categories for each key component on a continuum from least to most expansive and scored them from 0-2. Key components in more expansive state laws were usually more inclusive and more prescriptive, used less discretionary language, or established stronger measures of accountability. There was considerable variation across states in the number of the 11 key components included in state law, and in the level of detail and scope in the components that were included. The report indicates that it did not include an analysis of how effectively school districts and individual schools are implementing these anti-bullying polices. A second phase of the study will address implementation in a sample of school districts and schools:

While this report focuses on documenting and profiling policy across the states, these policies may not benefit schools or students unless they can be successfully implemented. For example, legislation that defines prohibited bullying behaviors, and specifies graduated and substantial sanctions, will often require extensive implementation procedures for the implementing of the sanction (e.g., expulsion). Whether these necessary actions are feasible within resource constraints cannot be determined through a policy review alone.

School Responsibilities Regarding Bullying

Schools must balance a variety of factors in developing policies to address bullying. Among other things, they must meet state, federal, and local regulations and statutory requirements. Although resources on factors to consider in developing a comprehensive school anti-bullying policy are becoming more widely available, developing and implementing comprehensive and effective bullying policies can be challenging for schools. As more schools adopt anti-bullying policies, a variety of potential policy issues have arisen—including the wide variation in the coverage provided by these policies, the potential difficulty in ensuring civil rights laws are not violated while simultaneously ensuring that constitutional protections on free speech are not impinged upon, and the particular difficulties of developing policies to address the rising phenomenon of cyber-bullying.

Focus on Cyber-bullying

Although cyber-bullying frequently occurs off school grounds, it can have negative effects that are felt at school. Developing policies that address cyber-bullying can be a particular challenge for schools. School districts must deal with evolving case law on issues related to cyber-bullying that may cause uncertainty regarding a school's legal responsibility or potential culpability. For example, in some instances courts have prohibited disciplining a student for out of school speech. (See discussion of the Tinker standard under " Legal Issues .")

Cyber-bullying experts Sameer Hinduja and Justin Patchin recommend that schools ensure that their current policies on harassment and bullying permit disciplining students for cyber-bullying: They note that "If their policy covers it, cyber-bullying incidents that occur at school—or that originate off campus but ultimately result in a substantial disruption of the learning environment—are well within a school's legal authority to intervene." The authors further note that

Even though the vast majority of these incidents can be handled informally (calling parents, counseling the bully and target, expressing condemnation of the behavior), there may be occasions where formal response from the school is warranted. This is particularly the case in incidents involving serious threats toward another student, if the target no longer feels comfortable coming to school, or if cyber-bullying behaviors continue after informal attempts to stop it have failed. In these cases, the authors suggest that detention, suspension, changes of placement, or even expulsion may be necessary. If these extreme measures are required, it is important that educators are able to clearly demonstrate the link to school and present evidence that supports their action.

ED Dear Colleague Letter: School Responsibilities Regarding Bullying that Rises to the Level of Discriminatory Harassment

In December of 2010, the U.S. Department of Education issued a Dear Colleague Letter (DCL) that provided guidance on schools' responsibilities regarding bullying, in particular how some forms of bullying could rise to the level of discriminatory harassment, and as a consequence, might violate civil rights statutes. Several civil rights statutes explicitly protect against harassment based on race, color, national origin, sex, and disability. (See discussion of " Legal Issues .") Several of these laws are enforced by ED's Office for Civil Rights (OCR). If a school or Institution of Higher Education fails to adequately address harassment of a student that falls under one of these protected categories, it has not met its statutory obligations to protect the student according to the DCL:

Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student's ability to participate in or benefit from the services, activities, or opportunities offered by a school. When such harassment is based on race, color, national origin, sex, or disability, it violates the civil rights laws that OCR enforces…. A school is responsible for addressing harassment incidents about which it knows or reasonably should have known.

Furthermore, according to the DCL, addressing the discriminatory harassment through a school's anti-bullying policy is not sufficient:

If an investigation reveals that discriminatory harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring. These duties are a school's responsibility even if the misconduct also is covered by an anti-bullying policy, and regardless of whether a student has complained, asked the school to take action, or identified the harassment as a form of discrimination.

Harassment Based on Disability

It is important to note that students with disabilities who are victims of bullying may be able to file a complaint under Section 504 of the Rehabilitation Act (Section 504), Title II of the American with Disabilities Act (Title II), and the Individuals with Disabilities Education Act (IDEA) in addition to pursuing redress through state anti-bullying laws, state civil rights legislation, other state laws, or in some circumstances through other federal civil rights legislation. This issue is addressed in an ED Dear Colleague letter issued on July 25, 2000. According to ED, state and school districts are required by Section 504, Title II, and IDEA to:

ensure that a free appropriate public education (FAPE) is made available to eligible students with disabilities. Disability harassment may result in a denial of FAPE under these statutes. Parents may initiate administrative due process procedures under IDEA, Section 504, or Title II to address a denial of FAPE.... In addition, an individual or organization may file a complaint alleging a violation of IDEA under separate procedures with the state educational agency.

A recent ED DCL provided more detailed guidance on the responsibility of schools to address bullying of students with disabilities:

Whether or not the bullying is related to the student's disability, any bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE under IDEA and must be remedied.

The DCL also made clear that care must be taken in considering changing the placement of a student with a disability who is being bullied (i.e., the school must ensure that the student remains in the least restrictive educational environment in order to provide the student a FAPE).

Response to Dear Colleague Letter

Some groups have raised concerns about the guidance ED provided in its December 2010 Dear Colleague Letter. The National School Boards Association (NSBA) submitted a letter to ED stating that the guidance would place too broad an obligation on schools. According to the NSBA's letter:

our fear is that absent clarification, the Department's expansive reading of the law as stated in the DCL will invite misguided litigation that needlessly drains precious school resources and creates adversarial climates that distract schools from their educational mission.

In addition, the American Jewish Committee and the Religious Freedom Education Project/First Amendment Center issued proposed guidelines for school administrators intended to address bullying while also protecting students' freedom of speech and expression. Fifteen additional organizations signed on to these guidelines. The guidelines note that schools must balance safety concerns and free expression. They argue that unless student speech causes a substantial disruption at school it should not be censored.

In response to these proposed guidelines the Anti-Defamation League (ADL) submitted a letter to ED calling them "ill-conceived, unnecessary, deeply flawed, and counterproductive to confronting the growing and serious problem of bullying and cyber-bullying." Furthermore, the ADL letter notes that

Bullying situations very rarely erupt as conflicts over political or religious speech.... Instead, they much more often involve the intentional targeting of an individual with less physical or social standing for physical or verbal abuse. Targeted students are in a very different power position than those who are doing the bullying. The aggressor's objective is not to convince his/her target of the rightness of a policy position—it is, rather, to cause physical or emotional harm.

Federal Agency Efforts on Bullying

There are currently several federal initiatives that address student bullying. However, many of these initiatives are not solely or primarily focused on student bullying, but permit some funds to be used for this purpose. This section of the report summarizes interagency efforts to address student bullying. In addition, this report includes an Appendix that briefly summarizes selected federal bullying initiatives that may allow funding to be used to address school bullying. The Appendix focuses on some of the initiatives that have been undertaken by the three federal agencies that are most involved in addressing this issue: The U.S. Department of Education (ED), the U.S. Department of Health and Human Services (HHS), and the U.S. Department of Justice (DOJ). Note that bullying is often a small, optional part of the initiatives included in the Appendix. The initiatives that are included should not be viewed as an exhaustive list of federal initiatives that may address school bullying.

Interagency Initiatives

Representatives from the U.S. Departments of Agriculture, Defense, Education, Health and Human Services, the Interior, and Justice; the Federal Trade Commission; and the White House Initiative on Asian Americans and Pacific Islanders have formed a Federal Partners in Bullying Prevention Steering Committee. The Federal Partners work to coordinate policy, research, and communications on bullying topics. The Federal Partners have created a website, http://www.stopbullying.gov , which provides extensive resources on bullying, including information on how schools can address bullying. In addition, with leadership from the U.S. Department of Education (ED), the Federal Partners have sponsored three anti-bullying summits attended by education practitioners, policymakers, researchers, and federal officials. With ED and HHS, the CDC is currently leading an effort to develop a consensus definition of bullying that is intended to provide a consistent definition that will enhance comparability of data across studies and consequently lead to better measurement and tracking of bullying, as well as to improved prevention and responses to bullying.

Three agencies currently collaborate on a program called Safe Schools/Healthy Students (SS/HS). SS/HS is funded jointly by ED and HHS's Substance Abuse and Mental Health Services Administration (SAMHSA). The program is administered by ED, SAMHSA, and DOJ. Although SS/HS is not primarily an anti-bullying program, grantees may use program funds to include an anti-bullying component as part of their overall comprehensive plan of activities, programs, and services focusing on healthy childhood development and the prevention of violence and alcohol and drug abuse. SS/HS grants are awarded competitively to local educational agencies (LEAs). LEAs that receive a grant are required to establish partnerships with local law enforcement, public mental health, and juvenile justice agencies/entities.

Additionally, six agencies collaborated (U.S. Department of Education, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Department of Justice, Federal Bureau of Investigation, and the Federal Emergency Management Agency) to develop and publish comprehensive guides for developing high-quality emergency operations plans. Three separate guides were published; each was targeted to a different audience—elementary and secondary schools, institutions of higher education, and houses of worship.

Legal Issues

Currently, there are no federal statutes that explicitly prohibit student bullying or cyber-bullying. Under some circumstances, however, bullying in schools may be prohibited by certain federal civil rights laws. In contrast, many states have laws that explicitly prohibit bullying. In addition, bullying may, in some instances, constitute a violation of state criminal or tort law. The federal and state laws that govern traditional forms of bullying are described below, followed by a separate section that discusses federal and state laws that may pertain to cyber-bullying.

Federal Law

Under certain circumstances, federal civil rights statutes may be used to combat bullying in schools. The applicable federal civil rights statutes that prohibit discrimination in schools include Title VI of the Civil Rights Act of 1964 (CRA), which prohibits discrimination on the basis of race, color, or national origin in federal funded programs or activities; Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in federally funded education programs or activities; Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in federally funded programs or activities; Title II of the Americans with Disabilities Act of 1990, which prohibits discrimination on the basis of disability by state or local governments; Title IV of the CRA, which bars discrimination in public schools on the basis of race, color, sex, religion, or national origin; and the Equal Educational Opportunities Act, which prohibits states from denying equal educational opportunities based on race, color, sex, or national origin. The latter two statutes were largely designed to combat segregation in public schools.

Discriminatory conduct under these statutes includes peer harassment if such harassment is sufficiently serious that it creates a hostile environment and if such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees. If the bullying conduct in question involved discrimination or harassment on the basis of race, color, national origin, sex, or disability under the above statutes, then it is prohibited by federal law. However, bullying that does not constitute discrimination on these grounds is not covered.

In 2010, ED issued guidance that discusses when student bullying or harassment may violate federal education anti-discrimination laws and that clarifies a school's obligation to combat such bullying or harassment. The guidance includes a discussion of when bullying or harassment that targets lesbian, gay, bisexual, or transgender students may be a form of sex discrimination that violates Title IX, as well as a section that describes when bullying or harassment of students who share a particular religion may constitute national origin discrimination in violation of Title VI.

Although none of these civil rights statutes explicitly prohibits discrimination on the basis of sexual orientation or gender identity, there may, as ED's guidance notes, be instances in which such discrimination may also be a form of sex discrimination that violates Title IX. In the employment context, the Supreme Court has recognized that sex discrimination may encompass same-sex sexual harassment, meaning that sex discrimination is prohibited even if the harasser and victim are members of the same sex. The Court has also ruled that gender stereotyping is a form of discrimination on the basis of sex. Therefore, if a student who is gay or transgender is being harassed because of a failure to conform to gender stereotypes, such harassment is prohibited by Title IX. It is important to note, however, that Title IX prohibits sexual orientation or gender identity discrimination only when it constitutes a form of sex discrimination. Thus, the statute does not prohibit all forms of sexual orientation or gender identity discrimination or harassment of students.

Likewise, although none of the civil rights statutes described above explicitly prohibits discrimination on the basis of religion, there may be instances in which such discrimination may also be a form of national origin discrimination that violates Title VI. According to ED, "harassment against students who are members of any religious group triggers a school's Title VI responsibilities when the harassment is based on the group's actual or perceived shared ancestry or ethnic characteristics, rather than solely on its members' religious practices." Thus, for example, Jewish, Muslim, or Sikh students who share a religious identity may be victims of national origin discrimination if they are being bullied or harassed due to actual or perceived ancestry or ethnicity.

State Law

State laws also offer some protection to victims of bullying. Indeed, some states have statutes that explicitly prohibit bullying, while all states have general criminal and tort laws that may, under certain circumstances, provide remedies to victims of bullying. For example, certain forms of bullying are likely to violate a state's general laws against criminal assault and battery or other infractions such as disorderly conduct. Thus, bullies may incur penalties in states without explicit anti-bullying statutes and may even incur stiffer penalties under assault and battery statutes in states that also have anti-bullying laws.

Furthermore, tort law remedies, which allow bullying victims to sue on their own behalf, are available in all states. Tort law, which is created by both court decisions and statutory enactments, is generally intended to provide a mechanism by which individuals who have been injured can sue to recover damages. Tort law also serves as a deterrent to prevent similar injurious activities in the future. With regard to bullying, typical tort actions include intentional tort claims or negligent tort claims.

Lawsuits based on an intentional tort theory typically involve claims that fall into two categories: assault and/or battery. In general, assault claims involve fear of harmful or offensive touching, while battery claims involve actual harmful or offensive touching. Lawsuits based on a negligent tort theory generally involve claims against schools for failure to reasonably supervise students or employees or for failure to anticipate the wrongful conduct of such third parties. In order to succeed in such claims, plaintiffs must establish that the school owed them a duty of supervision, that the school breached that duty, that the breach was a foreseeable cause of an injury, and that an actual injury resulted.

Finally, it is important to note that many school districts and individual schools have anti-bullying policies that may be applicable.

Cyber-bullying

Cyber-bullying, which generally refers to harassment occurring among school-aged children through the use of the Internet, may or may not overlap with bullying that occurs in schools. Depending on the circumstances, some or all of the federal and state laws discussed above may apply to cyber-bullying. In addition, several states have passed legislation to prohibit cyber-bulling. In many cases, such legislation requires or authorizes school districts to adopt cyber-bullying policies.

It is important to note that the types of laws that may be invoked to combat cyber-bullying will vary depending on the circumstances of the particular case and thus may not be limited to the statutes cited above. For more information on legal protections for victims of cyber-bullying, see CRS Report RL34651, Protection of Children Online: Federal and State Laws Addressing Cyberstalking, Cyberharassment, and Cyberbullying , by [author name scrubbed].

Constitutional Considerations

As noted above, there may be constitutional principles that limit the authority of federal, state, or local governments or schools from enacting anti-bullying laws and policies. These constitutional considerations primarily involve the First and Fourteenth Amendments.

First Amendment: Freedom of Speech

The First Amendment declares that "Congress shall make no law ... abridging the freedom of speech." The Fourteenth Amendment's due process clause imposes the same restriction upon the states, many of whose constitutions have a comparable limitation on state legislative action. Although the First Amendment guarantees free speech, the right is not absolute. Governments impose limitations on many types of speech, and courts frequently distinguish between constitutionally protected speech and other less socially valuable categories of speech. One such example of unprotected speech is speech that constitutes a true threat. The Supreme Court has decided several "true threat" cases that provide the constitutional parameters that states or localities must meet when seeking to establish anti-bullying laws or policies.

In Watts v. United States , the Court held that only "true threats" are outside the scope of the First Amendment. In Watts , the defendant attended a political rally and made the statement, "I have already received my draft classification ... I am not going. If they ever make me carry a rifle the first man I want to get in my sights is [President] L.B.J." The defendant was arrested and charged with violating 18 U.S.C. Section 871(a) for "knowingly and willfully ... [making a] threat to take the life of or to inflict bodily harm upon the President of the United States." The Court held that, although the federal statute was not unconstitutionally overbroad, the defendant's statement was protected because it was not a "true threat." The Court found that the content of Watts's statement, the context in which the statement was made, and the audience's reaction to the statement were all supportive of Watts's claim that he engaged in protected "political hyperbole." The Court recognized that "true threats" should not be afforded First Amendment protection, and stated, "What is a threat must be distinguished from what is constitutionally protected speech."

Watts did not establish a bright-line test for distinguishing a true threat from protected speech. As such, lower courts have created varying tests for determining whether speech rises to the level of a true threat. The main point of contention among the appellate courts is whether the focus of a "true threat" test should be on the speaker or the listener. Some courts evaluate the existence of a threat by determining whether the speaker should reasonably have foreseen his words to be threatening, while others rest the determination on whether a reasonable recipient would be threatened by the statement.

Based on these principles, it is possible that anti-bullying laws or policies could be deemed constitutionally deficient if the prohibited behavior does not rise to the level of a "true threat" under most circumstances. This analysis, however, may differ depending on whether the challenged language is contained in a state statute or school policy.

In the school context, school officials who use anti-bullying policies to take disciplinary action against students may face legal challenges based on the First Amendment. While students generally retain the protections of the First Amendment, these protections may not always mirror the constitutional protections afforded in other contexts. For example, in Tinker v. Des Moines Independent Community School District , the Court held that student expression may be regulated only if it would substantially disrupt school operations or interfere with the rights of others.

In Tinker , students wore black armbands to school to protest the United States' involvement in Vietnam, despite knowledge that such action was in violation of school policy. The students were asked to remove the armbands, and upon their refusal were suspended until they came to school without the armbands. The Court held that the wearing of armbands for the purpose of expressing different viewpoints is the type of symbolic act within the protection of the First Amendment. Specifically, the Court ruled that "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of expression at the schoolhouse gate."

The Court subsequently refined the Tinker rationale as it applies to verbal expression or "pure speech." In Bethel School District 403 v. Fraser , the Court ruled that school officials had the authority to discipline a student for violating school rules by delivering a lewd speech at a school assembly. Shifting its focus from the students' rights articulated in Tinker , the Court instead emphasized the school's duty to inculcate habits and manners of civility and teach students the boundaries of socially appropriate behavior. In addition, the Court noted the importance of protecting minors from vulgar, lewd, or indecent language. As such, the Court concluded that the nomination speech had a disruptive effect on the education process, and that it was up to school officials to determine what manner of speech in the classroom or in school assembly is appropriate.

While it is undisputed that the First Amendment does not protect "offensive" speech while on school grounds, courts are less clear when the speech occurs off school premises. For example, in J.S. v. Bethlehem Area School District , an 8 th grader created a website that contained derogatory remarks regarding a math teacher and a principal. Most of the website was devoted to ridiculing the math teacher, comparing her to Adolph Hitler and making fun of her physical appearance. In addition, the site contained a solicitation for contributions to pay for a "hit man." School officials subsequently expelled the student, citing the extreme emotional distress suffered by the math teacher and the disruption the website caused at the school. The student argued that his website was protected speech.

In reviewing the case, the Pennsylvania Supreme Court decided two issues: (1) whether the student's speech constituted a true threat; and (2) whether the Tinker and Fraser standards permit a school district to discipline a student for off-campus speech. In addressing the "true threat" issue, the court determined that, although the website was in extremely poor taste, it was not a "true threat." Specifically, the court stated that "[w]e believe that the [w]ebsite, taken as a whole, was a sophomoric, crude, highly offensive and perhaps misguided attempt at humor or parody. However, it did not reflect a serious expression of intent to inflict harm," as the site focused primarily on the teacher's physical appearance, utilizing cartoons, hand drawings, and a reference to Adolph Hitler.

The court then addressed whether First Amendment jurisprudence permitted the school to discipline a student for off-campus speech. It dismissed the argument that the website was off-campus speech beyond the school's jurisdiction. Specifically, the court stated that "[w]e find there is a sufficient nexus between the [w]ebsite and the school campus to consider the speech as occurring on-campus." The court made this determination because the student had accessed the site at school, showed it to a fellow student, and informed other students about the site. The court then reasoned that school officials could punish the student under the Tinker or Fraser standard —under the Fraser standard because the speech on the website was vulgar and highly offensive, and under the Tinker standard inasmuch as the website caused a substantial disruption of school activities.

Ultimately, court rulings in this area tend to depend on the circumstances that arise in a given case, with courts sometimes upholding a school's disciplinary actions and other times ruling in favor of a student's right to free speech.

Fourteenth Amendment: Due Process

Another constitutional constraint that legislators and school administrators may face when drafting legislation or school policies aimed at curtailing bullying is the Fourteenth Amendment. The Fourteenth Amendment's due process clause provides that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.... " Under the due process clause, criminal statutes that lack sufficient definiteness or specificity may be held "void for vagueness." A governmental regulation or statute may be declared void if it fails to give a person adequate warning that his or her conduct is prohibited or if it fails to set out adequate standards to prevent arbitrary and/or discriminatory enforcement.

Indeed, a statute may be so vague or threatening to constitutionally protected activity that it can be pronounced unconstitutional on its face. For example, in Papachristou v. City of Jacksonville , a unanimous Court struck down as facially invalid a vagrancy ordinance that punished:

dissolute persons who go about begging, ... common night walkers, ... common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, ... persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children.

The Court found the statute facially invalid, as it failed to provide fair notice or require specific intent to commit an unlawful act. The Court concluded that the statute permitted arbitrary and erratic arrests and convictions, provided police officers too much discretion, and criminalized activities that are normally innocent.

When evaluating the constitutionality of anti-bullying laws or policies, the courts may apply these due process principles. For example, in Flaherty v. Keystone Oaks School District , a student filed a lawsuit after being disciplined for posting on an online message board devoted to high school volleyball. A federal district court held that the breadth of student handbook policies pertaining to discipline and technology was overreaching, thus violating students' free speech rights. In addition, the court held that the policies were unconstitutionally vague in definition and as applied.

The court found the school policies unconstitutionally overbroad for several reasons. First, the policies were not referred to or incorporated in the student handbook. In addition, the policy "authorizes discipline where a student's expression that is abusive, offending, harassing, or inappropriate, interferes with the educational program of the schools." This standard, concluded the court, did not comply with the Tinker requirement that discipline should be reserved for those circumstances that cause a substantial disruption to school operations.

Finally, the court noted that even if it did not find the policy overbroad, it would find the student handbook policies unconstitutionally vague, as the terms "abuse, offend, harassment, and inappropriate" were not defined in any significant manner. In addition, the court found the policies not only vague in definition but also in application. The court noted that school personnel had varying interpretations of the policies. As such, the court concluded that the policies were vague enough to result in arbitrary enforcement. Therefore, the court concluded that the student handbook policies did not provide the student with adequate warning of proscribed conduct.

Ultimately, when drafting legislation or school policies to combat student bullying, legislators and school administrators must consider the constitutional constraints imposed by the First and Fourteenth Amendments. Specifically, such officials must ensure that statutes and school policies are narrow enough not to infringe upon protected speech and specific enough not to be found unconstitutionally vague.