School bullying—once viewed as a rite of passage—has captured the media’s attention over the past decade, as many incidents have become violent and even deadly. With no federal law that prohibits bullying and a patchwork of state laws that approach the issue differently, the need for litigation to help undo the bullying culture is greater than ever.
The first state antibullying law was passed in 1999,1 and 49 states now have antibullying laws.2 Although the problem is nationwide, there is no universally accepted definition of bullying. Some states focus on specific actions, while others focus on the aggressor’s intent or motivation, or the degree and nature of harms. In five states—Hawaii, Maine, New Mexico, Virginia, and Wisconsin—the state education department has the discretion to define bullying, and Arizona and Minnesota allow local school districts to decide.3
“When you don’t have a clear definition of what bullying is, it doesn’t tell the schools or the victims what to do,” said Adele Kimmel, managing attorney at Public Justice in Washington, D.C., who created and directs the Public Justice Antibullying Campaign.4 “Some laws offer guidance for the schools, but if it doesn’t offer mandatory training and make clear what bullying is, then the law is close to worthless.”
Antibullying Policies for SchoolsMany state laws provide suggested antibullying policies to education departments or school districts but don’t require them to take action to prevent or respond to the conduct. Only 17 states require school staff to report bullying incidents, and 16 states require schools or school districts to report those incidents to the state education department.5
Kimmel said the absence of a federal antibullying law is problematic. “There should be a federal antibullying law, in part because there is no uniformity in how bullying is being addressed,” she said.
Last year (in 2013), Rep. Linda Sanchez (D-Calif.) and Sens. Robert Casey (D-Pa.) and Mark Kirk (R-Ill.) reintroduced the Safe Schools Improvement Act (SSIA).6 It would require school districts that receive funding under the Elementary and Secondary Education Act to adopt codes of conduct prohibiting bullying and harassment, and require states to report bullying and harassment data to the U.S. Department of Education. Both versions of the bill remain in committee.7
No provisions in the SSIA or state laws give people a private right of action. “That’s one of the big problems here,” said Kimmel. “School districts don’t want to say directly that schools are on the hook.”
Bullying LawsuitsBecause students and parents who bring bullying lawsuits cannot sue the schools or districts under any of the state antibullying laws, plaintiff attorneys must look elsewhere for viable statutory claims—such as Title IX (gender discrimination), Title VI of the Civil Rights Act (discrimination based on race, color, or national origin), and §504 of the Rehabilitation Act (discrimination against people with disabilities). If the student does not fall into a protected category, Kimmel said attorneys can examine state tort laws for possible causes of action.
Round Rock, Texas, attorney Martin Cirkiel, who represents plaintiffs in bullying cases, said it is particularly tragic when children are physically assaulted. “Calling it bullying almost undervalues what is going on when it becomes assault, and people need to get involved,” he said. “The ‘boys will be boys’ theory is really a dinosaur.”
The lack of a federal law that prohibits discrimination on the basis of sexual orientation or gender identity is another hole in the legal framework, Kimmel said. The Student Nondiscrimination Act, which is modeled after Title IX, was introduced in the House and Senate in 2013, but it has stalled.8 Only 16 states and the District of Columbia recognize gender identity discrimination.9
“Most states don’t recognize it, and there is no federal statute. You are essentially trying to fit a square peg into a round hole,” said Kimmel. “The ones who are getting bullied more than others are students who identify with or are in the LGBT [lesbian, gay, bisexual, and transgender] and disabled communities.”
Training and Education Make a DifferenceKimmel and Cirkiel said lawsuits requesting injunctive relief will help school districts create programs that address bullying and overhaul the inadequate infrastructure.
“More than half of our country’s teachers and administrators have no training about how to respond to and protect our kids from bullying, so training and education would make the biggest difference. They can implement the training and education that should have been done in the first place, and it can be negotiated as part of the settlement,” said Kimmel.
In 2011, six students who identified with or were perceived to be part of the LGBT community sued a Minnesota school district, alleging school officials failed to stop their daily barrage of harassment and physical assaults. As part of the settlement, the school district agreed to revise its harassment policies, including training staff, retaining a mental health consultant, creating an antibullying task force, and tracking harassment reports.10
“For a lot of parents, particularly in the bullying-suicide cases, getting that injunctive relief is huge,” said Cirkiel. “Every parent I have ever dealt with has said, ‘We just want to make sure what happened to our kid doesn’t happen to someone else.’”
Kimmel said changing the culture of bullying requires legislative and legal efforts. “Just passing legislation won’t fix the problem,” she said. “The other piece is litigation with an injunctive component. . . . It’s helping in the jurisdictions where cases are filed, but it hasn’t become a tidal wave of change. The more these cases are brought, the more change we will see.”
1. Dena T. Sacco et al., An Overview of State Antibullying Legislation and Other Related Laws, Harvard Berkman Ctr. for Internet & Socy. 1, 3 (Feb. 23, 2012), www.cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/State_Anti_bullying_Legislation_Overview_0.pdf.
2. See U.S. Dept. of Health & Human Servs., www.stopbullying.gov, and Bully Police USA, www.bullypolice.org. Montana is the only holdout; legislation has been introduced but has not passed in that state. See Sacco, supra n. 1, at 13; see also Sameer Hinduja & Justin W. Patchin, State Cyberbullying Laws: A Brief Review of State Cyberbullying Laws and Policies, Cyberbullying Research Ctr. (Apr. 2014), www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf.
4. See Public Justice, Antibullying Campaign, www.publicjustice.net/what-we-do/anti-bullying-campaign.
5. Sacco, supra n. 1, at 7, 10.
6. Sen. 403, 113th Cong. (Feb. 28, 2013); H.R. 1199, 113th Cong. (Mar. 14, 2013).
7. At press time, there were 199 cosponsors in the House and 45 in the Senate.
8. Sen. 1088, 113th Cong. (June 4, 2013); H.R. 1652, 113th Cong. (Apr. 18, 2013).
9. Sacco, supra n. 1, at 5; see also Equal. Fedn., Minnesota Passes One of the Country’s Strongest LGBT-Inclusive Bullying Prevention Laws (2014), http://tinyurl.com/p6n7cva.
10. Doe v. Anoka-Hennepin Sch. Dist. No. 11, Nos. 11-cv-01999 and 11-cv-02282 (D. Minn. Mar. 5, 2012), www.splcenter.org/sites/default/files/downloads/case/Consent_Decree.pdf.