Ms. Amadi Writes on the Problems with Bullying

Ms. Nina Amadi submitted a very well written and insightful paper for Professor Birdsong’s Criminal Justice Administration Seminar last semester. In her paper she examines bullying within communities and the current state laws addressing bullying. She  emphasizes the need for federal legislation in order to effectively combat the bullying epidemic that has erupted within our society.

Read and enjoy!

BULLYING: The Need for Federal Legislation Addressing Bullying

                              Nina Amadi © 2103

1. INTRODUCTION

I can remember the apprehension that I felt as a kid because of bullying at school like it was yesterday. I have chosen to write on the topic of bullying because of my own personal experiences and also because it has become a very serious problem within our society. It is time that we examine the laws that are in place and demand that more be done on the federal level to put a stop to bullying. This is important because with the advancement of technology bullying is far more damaging and is having a more significant impact on those that are being bullied. It is also important that we address bullying because it has gone far beyond the school play-ground teasing and is even now occurring among adults. There is no sense of responsibility or wrongdoing in individual’s actions that have the sole goal of harassing or tormenting another person. Some say that it is just kids being kids however; I believe that it has gone far beyond that. When you have people committing suicide or planning mass shootings at their schools there is most certainly an issue that needs to be addressed.

Bullying is something that has and continues to cause disarray in schools, within the lives of youth and even carries on into adulthood in some instances and continues in a vicious cycle. Currently most states do have laws against bullying however; federal legislation addressing bullying is needed for many reasons. First it is important that bullying be addressed in order to improve safety for children and education administration within schools because bullying causes a disruption within the learning environment. If a student is consumed with stress from being harassed by a bully they will either not be able to perform to the best of their ability or perhaps even elect to be absent from school altogether as a way of avoiding the situation. Secondly, it is important to help curb the increase of suicides that we are seeing in adolescents and even the formation of an adult bully as well, who will harass and torment people within the workplace. Thirdly, it is important that we have federal legislation because bullying has become far more harmful and increased the impact that the bullies have on the lives of their victims as well. In past years, when bullied at school the victim would just dread having to face the words of the bully but back then they would be heard and then forgotten. Presently however, with Facebook, Twitter and Instagram, among other modes of social media, there is a constant and far reaching reminder of the hurtful words that are directed and intended to hurt the victims.[1]

Bullying is something that has certainly occurred for a long period of time and is perhaps something that everybody has experienced at one time within their lives as I have or at least knows of someone who has. Bullying has now become a main focus within our society, this can be attributed to a number of horrific incidents that have occurred within the past few years and these incidents are seemingly on the increase rather than the decrease. It is also more common now to see and hear news of teens committing suicide, who are later found to have been victims of bullying.

Would federal legislation help? Yes for many reasons first it would create uniformity among the states and ensure that no matter where the bullying takes place that those who participate in it and those parents who do nothing to stop their children who might be involved in it, would be held accountable and would also face the consequences. Federal bullying prevention legislation has been introduced every year since 2003, when Congresswoman Linda Sanchez (D-CA) first introduced the “Bullying Prevention for School Safety Act.[2] Having a federal law would deter those who might think of bullying another student or person and even stop those who may already be doing it as of now.[3]

If there is federal legislation that would set requirements for all schools in regards to bullying and furthermore a federal law that criminalizes bullying and provides for punishment, this would then hold not only the bullies themselves but in some extreme cases of adolescent bullying their parents responsible and there would be a decrease in the number of incidents of bullying. With bullying decreasing, the amount of teens committing suicide because of harassment that they are experiencing would also decrease. Also I think the number of school shootings from enraged students would decrease with a uniformed federal law..

With the increase in bullying not only in schools but also going beyond schools with adults having to endure bullies, a federal law would also help. The reasoning behind this is that for the most part bullying is something that is learned and started as children but most bullies will continue to bully others even into adulthood and the cycle will continue and grow when they also have children and allow or raise  them to become bullies just as they were. This is mostly because they have never had to face any consequences for their behavior from childhood through adulthood.

Federal law would show that there is an official stand and intolerance for bullying no matter if you are a child or an adult. Emerging evidence shows us that bullying by peers can have results that persist long after the bullying has ended.[4] Bullying in schools prevents children from receiving the best education, a human right we must vigorously defend.[5] When looking at the current situation regarding bullying and seeing the alarming increase in the number of cases within schools and now even within adults it is clear that something needs to be done differently. This can be accomplished starting with the passing of the Safe Schools Improvement Act and also passing a law that criminalizes and provides both punishments for perpetrators and justice for the victims.

1. I.                BACKGROUND ON BULLYING
2. A.    Bullying Defined

Bullying often refers to verbal, physical, or other acts committed by a student to harass, intimidate, or cause harm to another student.[6]  The behaviors attributed to bullying may include verbal threats, menacing, harassment, intimidation, assaults, disruption of the school environment and associated disorderly conduct, and related behaviors.[7]

Most, but not all, states provide definitions of bullying for districts to use in their policies: Forty-one states provide statutory definitions of bullying or similar behaviors. Five states (Hawaii, Maine, New Mexico, Virginia, and Wisconsin) leave the definition of bullying to the discretion of the state department of education or similar entity, requiring that a definition be included in the state‘s model bullying policy developed by the state department of education or similar body. Two states (Arizona and Minnesota) leave the definition of bullying entirely up to local school districts. These definitions vary greatly. According to Department of Education, some state laws focus on specific actions (e.g., physical, verbal, or written), some focus on the intent or motivation of the aggressor, others focus on the degree and nature of harms that are inflicted on the victim, and many address multiple factors. In many instances, minor language, omitted or inserted into laws, can significantly alter the way in which the behavior and circumstances are legally defined (e.g., inclusion of the terms physical, overt, or repeated).[8]

1. B.    Types of bullying

The first type and recently most used is Cyber-bullying. Cyber-bullying is when a child or teenager is harassed, humiliated, embarrassed, threatened or tormented using digital technology.[9] This is not limited to the Internet; cyber bullying also encompasses bullying done through such things as text messages using cell phones.[10] It is important to note that cyber bulling can only happen between minors.[11] Cyber-bullying differs from traditional bullying in several ways. First the cyber-bully can attack anonymously.[12] Second the bullying can go viral.[13] Third the bully does not see the emotional toll that the cyber-bullying is having on the victim as they would have in a face-to-face confrontation.[14] Fourth teachers and parents do not have the electronic know-how to monitor to monitor the activity that the youths are using in order to bully their victims.[15] The prevalence of electronic media in everyday life and the accessibility to laptops and cellphones definitely has made this type of bullying more severe because of the ability of the bully to reach a number of people within a small amount of time and makes this in some instances more hurtful overall because it is something that is displayed publically for all to see and is written instead of something that is perhaps said to the person and then moved on from.

The next type is bullying that occurs on school grounds. School bullying when it comes to verbal bullying, this type of bullying is the most common type with about seventy-seven  percent of all students being bullied verbally in some way or another including mental bullying or even verbal abuse.[16] These types of bullying can also include spreading rumors, yelling obscenities or other derogatory terms based on an individual’s race, gender, sexual orientation, religion, etc.[17] This type of bullying is something that has gone on for the longest and for the most part could be seen to eventually stop . When coupled with cyberbullying however, this has brought bullying to the extreme and

1. C.    Targeted groups of bullying

There are four main targeted groups for bullying.[18] First Lesbian, gay, bisexual, or transgender youth and those perceived as being lesbian, gay, bisexual, or transgendered are at an increased risk of being bullied.[19] Second is the Bullying of students with disabilities.[20] The third type is known as racist bullying which targets people of a specific race or cultural background.[21] The fourth main type is known as religious bullying in that people with specific religious beliefs are the targets of bullying.[22] With this particular information it is definitely possible to establish law that would prevent bullying by addressing common ways in which these groups are usually harassed as a way to help stop bullying and having teachers or administrators look out for exact behaviors and further make sure that such behaviors are communicated to the students within the school as not being tolerated. Furthermore it

1. D.    Statistics on bullying

Recent bullying statistics show that bullying is on the rise among young adults, teens and children.[23] The rise in these bullying statistics is likely due to a fairly recent form of bullying seen in recent years called cyber bullying.[24] This type of bullying has gotten immense media attention over the past few years sighting instances of cyber bullying pushed too far, and in many cases leading to cases of teen suicide or death.[25] Many bullying statistics and studies have found that physical assaults have been replaced with constant cyber assaults in the form of bashing, rumors and other hazing content targeted at a single student or group of students.[26]

Out of the seventy-seven percent of those bullied, fourteen percent have a severe or bad reaction to the abuse, according to recent school bullying statistics.[27]About eighty percent of all high school students have encountered being bullied in some fashion online.[28] These growing numbers are being attributed to youth violence including both homicide and suicide.[29] While school shootings across the country are becoming more and more common, most teens that say they have considered becoming violent toward their peers, wish to do so because they want to get back at those who have bullied them online.[30] About thirty-five percent of teens have been actually threatened online. About half of all teens admit they have said something mean or hurtful to another teen online. Most of the teenagers admit to having done it more than once as well.[31]

There are very alarming statistics that have been published regarding bullying and suicides.[32] Suicide is the third leading cause of death among young people, resulting in about 4,400 deaths per year, according to the CDC.[33] For every suicide among young people, there are at least 100 suicide attempts.[34] Over 14 percent of high school students have considered suicide, and almost 7 percent have attempted it.[35] Bully victims are between 2 to 9 times more likely to consider suicide than non-victims, according to studies by Yale University.[36] A study in Britain found that at least half of suicides among young people are related to bullying.[37] 10 to 14 year old girls may be at even higher risk for suicide, according to the study above According to statistics reported by ABC News, nearly 30 percent of students are either bullies or victims of bullying, and 160,000 kids stay home from school every day because of fear of bullying.[38]

II.            BULLYING LAWS AND POLICIES

1. A.    State Laws

Currently there are forty-nine states that have anti-bullying legislation and require schools to address bullying in some way.[39] However, these bills vary in their definitions of bullying, their requirements, and the protection afforded to students.[40]  Colorado was the first state to pass legislation, creating a statewide school policy that requires schools to implement specific anti-bullying policies and practices.[41] Since Colorado enacted their anti-bullying legislation many other states have passed their own laws against bullying, some differ in their characterizations of bullying and whether specific groups of students, are explicitly identified and protected.[42] There are six states that are viewed to have the best anti-bullying laws those include the following Florida, Wyoming, Virginia, Delaware and Kentucky.[43] Effective anti-bullying laws are usually those that provide a way to enforce policies, require consistent standards for disciplinary action or even establish standards for evaluating a school district’s progress in addressing problems having to do with bullying.[44]

Some state anti-bullying laws contain provisions modifying criminal laws or creating new crimes aimed at bullying, and, there are many existing and pending laws that criminalize some bullying behaviors.[45] For the most part, however, the anti-bullying laws focus on the responsibilities of schools to address bullying.[46] They typically prescribe a minimum of what schools district policies must contain with regard to bullying, leaving other decisions to the districts or individual schools, though they often provide for the state department of education or similar body to come up with a model policy as guidance.[47]

Thirty eight states provide some treatment of cyberbullying, or bullying involving electronic acts in their definitions. [48] Thirty four states include bullying involving electronic acts in the definition of bullying or otherwise define cyberbullying in essentially the same way as bullying.[49] Six states define cyberbullying more specifically.[50] Eighteen states provide some treatment of targets’ differentiating characteristics.[51] Sixteen of these provide a list of characteristics (some exhaustive, others non-exhaustive).[52] The sixteen all include these six characteristics: creed or religion, disability, gender or sex, nationality or national origin, race, and sexual orientation.[53] The characteristics of the sixteen combined include: academic status; age; ancestry; color; creed; developmental, emotional, learning, mental, physical, or sensory disability; ethnicity; familial status; gender; gender expression or identity; health condition; intellectual ability; marital status; military status; national origin; nationality; need for special education services; obesity; physical appearance; physical attributes; physical or mental ability or disability; political belief; political party preference; race; religion; religious practice; sex; sexual orientation; socioeconomic status; source of income; unfavorable discharge from military service; weight; or association with a person or group with one or more of such differentiating characteristics.[54]

How much the characteristics matter; the eighteen states addressing characteristics vary on the significance of the characteristics.[55] One state (Alabama) requires that bullying be motivated by differentiating characteristics, without providing any list of what the differentiating characteristics must be.[56] Two states (Iowa and New Jersey) require that bullying be motivated by actual or perceived differentiating characteristics, and provide a non-exclusive list of what the differentiating characteristics could be.[57] Two states (California and Vermont) require that bullying be motivated by actual or perceived differentiating characteristics in some respects but not in others; in California, bullying as defined in the school district‘s policy must be motivated by actual or perceived differentiating characteristics, as provided in a non-exhaustive list; however, students may still be subject to suspension or expulsion as a consequence for bullying even if it is not motivated by such characteristics.[58] In Vermont, harassment must be motivated by actual or perceived differentiating characteristics, as provided in an exhaustive list; however, bullying need not be motivated by such characteristics.[59] Eleven states recognize the role of differentiating characteristics, and provide a non-exclusive list of differentiating characteristics.[60] One state (Mississippi) recognizes the role of differentiating characteristics without providing any list of differentiating characteristics.[61] One state (Missouri) explicitly prohibits school districts from outlining, in their bullying policies, specific lists of differentiating characteristics. Laws in six states (Florida, Massachusetts, Michigan, New Hampshire, Rhode Island, and Utah) contain language that all students are to be treated equally under the bullying policies.[62]

            The varying treatment of differentiating characteristics may be because, according to Department of Education, the legislative language used in crafting bullying laws often borrows directly from harassment statutes.[63] This has frequently led to a combination of terms used to define prohibited conduct, with bullying and harassment often used interchangeably in laws, despite their important legal distinctions.[64] Harassment is distinguishable from more general forms of bullying in that it must be motivated by characteristics of the targeted victim.[65] It is generally viewed as a subset of more broadly defined bullying behavior.[66] Harassment also violates federal civil rights laws as a form of unlawful discrimination.[67]

Florida has an anti-bullying law which provides a very detailed definition of bullying.[68] Within this law it requires that each school district adopt a policy that prohibits bullying and harassment it provides minimum requirements for the contents of the policies and the school district’s policy must be approved by the Department of Education and requires that the school district comply with reporting procedures as a prerequisite to receiving school funds.[69] The law also allows schools officials to discipline students for off-campus, computer-based bullying.[70] These provisions allow the schools to take effective action against student perpetrators and provide a high level of protection against peer harassment by implanting necessary enforcement measures.[71] Numerous cases in different states have been brought against minors who have been bullying other individuals. In some cases even school districts have been named in suits for failure to exercise a duty of care to the harmed individuals.[72] Just as schools have been found to have a duty to prevent and stop bullying the same should be for parents as well.

1. B.    Non-effective State Laws and Policies

Some states’ anti-bullying laws have been recognized as ineffective because they do not provide a court remedy for victims, and they do not hold schools accountable for their failures to report bullying incidents in accordance with the law.[73] For instance, Connecticut received an unfavorable critique of its anti-bullying law because of its ineffectiveness.[74] On its face, Connecticut’s law appears to protect students from peer harassment, but in practice it does not succeed.[75] The anti-bullying law provides measures for students to report bullying and parents to file reports, along with requiring school personnel to report witnessed acts of bullying. School administrators are required to investigate all reports of bullying and harassment, notify parents of all involved students, and keep detailed reports about such incidents.[76] While many procedural components of effective anti-bullying legislation are present in Connecticut’s law, there is no accountability among school administrators once bullying has been reported and investigated to ensure that the reports and investigations are being followed-up with any necessary corrective action.[77]

Other states that have received severe negative criticism for their anti-bullying laws based on their ineffective results are New Hampshire, Alabama, Missouri, Mississippi, Louisiana, Texas, Illinois, and Minnesota.[78] For example, the anti-bullying law in Illinois requires school boards to consult with parent teacher advisory committees and other community based organizations before creating student discipline policies.[79] The purpose of the discipline policies is to address students who have demonstrated aggressive or bullying behaviors.[80] However, requiring school boards to consult with parent-teacher advisory committees and other organizations weakens the law’s efficiency by prolonging any creation of or change to schools’ discipline policies.[81]

1. C.    Federal Laws

As of today there are no federal laws that address bullying directly in some cases there is an overlap between discriminatory harassment when it is based on race, religion and civil rights violations enforced by the Department of Education. When bullying and harassment overlap the school has a responsibility to resolve the harassment.[82]

In 2002 the No Child Left Behind Act amended and reauthorized the Safe and Drug Free Schools Communities Act.[83] The Safe and Drug Free Schools Communities Act can also be used for anti-bullying measures.[84] In the summer of 2009 Linda Sanchez, a California Representative in Congress introduced the Safe Schools Improvement Act (SSIA), which would amend the Safe and Drug Free Schools Communities Act to draw attention to the bullying and harassment in schools.[85] The Safe Schools Improvement Act defines the terms “bullying” and Harassment”, including them in a larger definition of school violence and requiring schools to implement comprehensive anti-bullying policies that identify specific groups of students most often targeted by bullies.[86] Schools and districts would also be required to implement prevention strategies and provide professional training to teach school staff appropriate methods for dealing with bullying and harassment issues.[87] In addition, the bill would require states and districts to report on the prevalence of bullying and harassment in their schools.[88] This proposed federal legislation would uniformly address the problem of school bullying and harassment and would require schools to take preventative measures against peer harassment with the goal of preventing tragedies, like school shootings and teen suicides alike.[89]

A 2011 report by the United States Department of Education showed that only a handful of states actually follow best practices shown to be effective in reducing bullying such as including, but not limiting to enumerated groups, including relationally or socially aggressive acts like social ostracism, and including mental health support for not only those targeted by bullying, but also those who perpetrate.[90] Safe Schools Improvement Act would ensure that all states follow these best practices.[91] Senator Bob Casey, democratic representative of Pennsylvania reintroduced Safe Schools Improvement Act earlier this year in March.[92] Implementation of The Safe School Improvement Act, would solidify the requirement for schools to address bullying and hold them accountable to collect data on the incidence and response.[93]

1. D.    Possible Federal Law

This act is seeking to stop bullying. The Silent Victim’s Act defines bullying as:

A Single significant incident or a pattern of incidents involving a written, verbal, or electronic communication, or a physical act or gesture, or any combination that is directed at another individual which:

(1) Causes physical harm or damages individual’s property;

(2) Causes any type of emotional distress to an individual;

(3) Interferes with an individual’s educational opportunities;

(4) Creates a hostile educational environment; or

(5) Causes substantial disruption to the order of the school.

Any person found to be a party to or directly responsible in violating this section is guilty of bullying and upon conviction if 18 years or older at the time of the incident will be punishable as a class 1 Misdemeanor. If younger than the age of 18 at the time of the incident, upon conviction will be punishable as a class 2 Misdemeanor. If actions or inactions by any person is the direct cause of death of another individual, upon conviction if age 12 or older at the time of the incident will be punishable as a third degree felony.

It shall further be unlawful for any person to use a computer or computer network to do any of the following:

(1) With the intent to intimidate or torment another individual:

a. Create a bogus profile of an individual on a social media site or Web site;

b. Pose as an individual in:

1. A social media setting or Internet chat room forum;

2. An electronic mail message; or

3. An instant message; text message

c. Post themselves or even encourage others to post on the Internet private, personal, or sexual information concerning another individual.

d. Makes phone calls, or sends a text message whether or not conversation ensues, with no purpose of legitimate communication; or

e. Communicates, while enrolled as a student in a local school district, with or about another school student, anonymously or otherwise, by telephone, the Internet, text message, mail, social media or any other form of electronic or written communication in a way that a reasonable person under the circumstances should know would cause the other student to suffer fear of physical harm, intimidation, humiliation, or embarrassment and which serves no purpose of legitimate communication.

(2) With the intention of intimidating or tormenting and individual or their parents or guardians:

a. Posts an actual or altered image of an individual on the Internet;

b. Access, alter, including breaking into a password protected account or stealing or otherwise accessing passwords; or

c. Use a computer system for repeated, continuing, or sustained electronic communications, including electronic mail or other transmissions, to harass another.

(3) Devising any statement, whether it be true or false, that has the possibility to provoke or that actually does provoke any third party to then stalk or harass another individual.

(4) Copy and distribute, or cause to be made, an unauthorized copy of any information pertaining to another individual for the purpose of intimidating or tormenting that individual (in any form, including, but not limited to, any printed or electronic form of computer data, computer programs). .

(b) Any person who violates this section  regarding electronic devices or electronic means of communication shall be guilty of cyber-bullying, and upon conviction this offense shall be punishable as a Class 1 misdemeanor if the defendant is 18 years of age or older at the time the offense is committed. If the defendant is under the age of 18 at the time the offense is committed, and upon conviction the offense shall be punishable as a Class 2 misdemeanor. If such bullying is found to be the direct cause of an individual’s death, upon conviction if the defendant is 12 years or older, the offense is punishable as a 3^rd degree felony.

Requirements for violations for both sections include restitution to the victim or their families to be used for counseling or grief management. Required anger management and counseling for the defendant, community service in which they speak to other individuals about the dangers and wrongs of bullying and cyberbullying. In cases where the bullying or cyberbullying resulted in the death of an individual required time within a juvenile detention center for those who are up to the age of 16. Those defendants that are age 17 and older are eligible for up to 6 months in prison or deferred adjudication for a minimum of 2 years with required anger management and counseling.

 III.         CASES INVOLVING BULLYING

One of the most notable cases involving bullying is the shooting at Columbine High School in 1999, this incident helped spark a movement against bullying.[94] The two students involved in the shooting were reported widely within the news media as having been victims of bullying who went throughout their high school with assault weapons and killed one teacher and twelve students and injured twenty three others before committing suicide.[95] This is a leading example of what can occur when bullying is not addressed and those that are being bullied feel as though murder and suicide is the only way to put an end to the bullying themselves. While the students choosing to kill others by far is not right and certainly inexcusable, it is important that notice be taken as to the events surrounding the horrific crime and ensure that everything possible is done to keep this from happening over and over again. The allowance of continued bullying has gone too far and the blaming of the victims instead of holding the bullies accountable is unacceptable.

Recently, with a case of cyber-bullying making headlines in Polk County, Florida, has become the focal point for many states.[96] On September 12, 2013, Rebecca Sedewick jumped to her death after being continuously bullied by girls from her school.[97]  In this case two girls ages 14 and 12 are facing felony stalking charges in connection with the suicide of a former classmate.[98] It is thought that because of this particular case agencies in other states may follow suite and file similar charges against adolescent bullies.[99] One of the reasons that this is so important is because there have been many attempts for felony charges in cyber-bullying cases however they have been unsuccessful at the felony level especially when dealing with young children.[100] The hope is that if this succeeds it will give hope to victims of bullying and cyber-bullying that the offenders will face long-term consequences.[101]

In Crainville, Illinois during the month of October 15 year old Jordan Lewis, took his own life by shooting himself with a shotgun in the chest.[102] The father of Jordan Lewis is currently seeking to identify those that are responsible for the bullying and ultimately the death of his son. [103]While the argument is often made to examine the mental state of the victim in suicide cases, I think that it should be looked at in the aspect that while the student, quite possibly may have been depressed, much of the depression is rooted in the constant bullying that they are having to endure. If not for the students constantly putting them down and intentionally abusing them both mentally and in some cases physically the student may not be depressed and seek to end their life as a way to escape.

Another bullying case that has received an enormous amount of attention coming out of Miami Florida occurred within the National Football League (NFL). In this case Richie Incognito who is a nine year professional NFL lineman is accused of bullying his teammate Johnathan Martin who has been in the league for two years.[104] Text messages that Miami Dolphins offensive lineman Richie Incognito wrote to teammate Jonathan Martin include racial slurs and threats, according to multiple reports.[105] Both played for the Miami Dolphins and Incognito has been suspended indefinitely and Martin will be placed on the non-football injury as he took a leave citing emotional issues.[106] This case that is still ongoing is evidence that the bullying is indeed a learned behavior that if not stopped will result in the formation of an adult bully who continues to terrorize others.

1. IV.            Third Party Liability

In Bradford v. Smart, the Court of Appeals held that a school is generally responsible for its pupils only when they are inside the school, but that exceptional circumstances might arise when failing to take reasonable steps to combat bullying occurring outside the school would give rise to a breach of its duty of care to a pupil.[107] Educational consultants agreed in Bradford v. Smart that where an incident between pupils outside school carried over into school, a reasonable head teacher should investigate if it had a deleterious effect upon the victim.[108]

As it stands now, public awareness of student bullying has never been higher.[109] The Administration has paid unprecedented attention to the harmful effects of bullying and made significant moves towards combating the bullying problem, even holding White House and Department of Education conferences on the subject,establishing the “stopbullying.gov” web site, and instituting an inter-agency approach to research and prevention.[110]

A school district’s obligations under these federal laws arise when it has actual knowledge of severe, pervasive and objectively offensive harassment and is deliberately indifferent.[111] The Court has determined that, at that point, harassment rises to a level that effectively bars the victim’s access to an educational opportunity or benefit.[112] These statutes do not distinguish between whether bullying happened on or off campus. Even if schools have no responsibility for bullying that begins off campus, common sense indicates if a student is bullying a peer off campus, he or she is probably bullying the student on campus too.[113] Although, it is exceedingly difficult for a school or court to weed out which bullying happened off campus (and can be ignored so as to protect the bully’s First Amendment rights) and which bullying happened on campus, to determine what response would not be deliberately indifferent.[114] This is especially true if the bullying occurs online.[115] With this being the case it is even more certain that federal legislation is needed in order to see and help schools to effectively combat bullying.

Laws in 34 states require, and in 2 states encourage, the districts to provide disciplinary consequences for bullying.[116] The range of consequences varies greatly, most states broadly use terms like disciplinary action, disciplinary consequences, consequences, or consequences and remedial action.[117] Seven states detail more specific disciplinary consequences: Alaska specifies consequences up to and including expulsion and reporting of criminal activity to law enforcement authorities.[118] California specifies consequences including suspension or expulsion.[119] Georgia specifies consequences including mandatory assignment to an alternative school after three bullying offenses within one school year.[120] Idaho specifies consequences including temporary suspension.[121] Nebraska specifies consequences including suspension, expulsion, or mandatory reassignment.[122] Rhode Island specifies that suspension may not be imposed unless it is deemed a necessary consequence.[123] Texas specifies consequences including classroom or campus transfer.[124]

According to Department of Education, recent state legislation and policies addressing school bullying has emphasized an expanded role for law enforcement and the criminal justice system in managing bullying on school campuses.[125] Though historically, authority over youth bullying has fallen almost exclusively under the purview of school systems, legislation governing the consequences for bullying behavior reflects a recent trend toward treating the most serious forms of bullying as criminal conduct that should be handled through the criminal justice system.[126] An increasing number of states also have introduced bullying provisions into their criminal and juvenile justice codes.[127] The anti-bullying laws in 8 states create or modify crimes to target bullying behaviors.[128] All states have criminal laws that could apply to some bullying behaviors.[129] Anti-bullying laws in 3 states create new crimes to target bullying behaviors: Idaho creates the crime of student harassment, intimidation, or bullying. Louisiana and North Carolina creates the crime of cyberbullying (as has Arkansas, but in a separate law).[130] Anti-bullying laws in 5 states modify existing criminal laws to target bullying behaviors: Georgia modifies the crime of disruption or interference with the operation of public schools.[131] Kentucky modifies the crimes of harassment.[132] Massachusetts modifies the crimes of: stalking; criminal harassment; intimidation of witnesses, jurors and persons furnishing information in connection with criminal proceedings; and annoying telephone calls or electronic communications.[133] Missouri modifies the crimes of harassment and stalking.[134] Nevada modifies the crime of threatening to cause bodily harm or death to pupil or school employee by means of oral, written or electronic communication.[135]

While the steps that have been taken to ensure that schools do everything in their power to both prevent and punish bullying are indeed helpful, it must further branch out to the parents of children as well. As indicated earlier the bullying that youth face these days usually does not end when they leave school. Some students are continually bullied after they leave campus as well through social media. In these instances it is important that the parents get involved by simply monitoring their child’s use of computers and cell phones much of the cyberbullying that occurs can be stopped. It is important that as a parent if providing items such as ipads, laptops or cellphones to their children they also make sure they these things are being used for their intended purposes and not simply as a means to harass other students. If harassment does occur from an devices provided by the parent to the child it is more than fair for the parent to also suffer consequences as they contributed to the delinquency by not monitoring the activity and holding their child responsible for deviant actions.

In response to being held accountable some states have turned to counseling and other support services in response to the bullying that is occurring.[136] Laws in fourteen states require, and in two states encourage, that the provision of counseling or other support services, or referral to such services, be included in the school districts’ policies as a possible response to an incident of bullying.[137] One state (Arizona) envisions counseling for targets only. Three states (Louisiana, Oklahoma, and Georgia) envision counseling for aggressors only.[138] Seven states (California, Connecticut, Florida, Massachusetts, New Hampshire, New Jersey, and Rhode Island) envision counseling for both aggressors and targets.[139] Two states (Maryland and Texas) envision counseling for both aggressors and targets, as well as for any witnesses to incidents.[140] Three states (New York, Tennessee, and Pennsylvania) leave it ambiguous as to which students should be provided with or referred to counseling.[141]

Federal Civil Rights laws allow private parties to seek monetary damages from federally funded educational institutions (including all public schools) that discriminate on the basis of sex, race, color, national origin, or disability. In 2010 Department of Education issued a Dear Colleague letter addressed to schools, stating that that some student misconduct that falls under a school‘s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department‘s Office for Civil Rights. According to Department of Education, school districts may violate these civil rights statutes and the Department‘s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.‖ These include: Title IX of the Education Amendments Act of 1972,32 which prohibits discrimination on the basis of sex. Student-on-student sexual harassment (and gender-motivated bullying) can form the basis for a damages suit when: (1) the school acts with deliberate indifference to known acts of harassment, and (2) the harassment is so severe, pervasive, and objectively offensive that it effectively bars the victim‘s access to an educational opportunity or benefit. Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin.

Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act, which prohibit discrimination on the basis of disabilities. State civil rights statutes may carry similar prohibitions, and state tort law may become relevant, particularly in incidents involving violence or suicide. In addition to Section 504 and Title II, the Individuals with Disabilities Education Act and state law protect students with disabilities. These include requirements that schools follow students’ Individualized Education Plans in addressing incidents and place limits on how students with disabilities are disciplined. Additionally, under the Individuals with Disabilities Education Act, a public school‘s failure to address bullying directed against a student with disabilities might allow a parent to enroll the child in private school and seek reimbursement from the school district.

A school district may be liable for money damages regardless of whether the bullying began on or off campus and regardless of the bully’s First Amendment rights.[142] Just as it has been found that schools have a duty of care they must fulfill to students who attend at their campus, I believe that parents also have a duty to insure that items provided by them to their children are not used in a way that, hurts or causes emotional harms to other individuals in which they come in contact with whether at school or just in the neighborhood. It is time for the notion that it is just harmless child-like behavior to stop and for it to be known that bullying is a behavior that will not be tolerated under any circumstances.

 V.              CONCLUSION

I have written this paper to examine the current state laws addressing bullying and the problems that are still occurring even with those laws in place. My hope is that with seeing the laws that are in place and the evidence that the situation regarding bullying is not getting any better that it will become a primary focus of those within our Government and communities and further illustrate that federal legislation is needed. With so many varying approaches from each state and some being stricter than others this act would bring all states to common ground and to ensure that all students are able to go to school and be educated in a comfortable and non-hostile atmosphere, as it should be. Passing of the Safe Schools Improvement Act, legislation would both instruct and set the same standard for all states and thus move all towards the common goal of eliminating bullying.

In expecting that schools perform to the reporting expectations set forth in The Safe Schools Improvement Act, they must have a way of holding students who are bullying others accountable and where necessary, their parents as well. Therefore a federal law is essential. Schools are faced with many obstacles when trying to combat bullying and having a law similar to the one that I presented above, that details what bullying is and possible consequences if violated, would help schools do their jobs more efficiently.

In looking into why bullying seems to becoming more prevalent and severe, the common theme seems to be lack of enforcement of laws if there are in fact any at all. With the number of individuals turning to cyberbullying on the steady increase I believe that law enforcement officers ability to enforce a federal law would be that much easier to accomplish. This is because there is actual proof that can be obtained whether it is from a Facebook page, cell phone provider, email account or other technology that has been used to intimidate and harass the victim, there would be substantial evidence to show who in fact was involved in the situation and to what degree. While it is true that the effect of the cyberbullying seems to have more of a significant impact on the individual that is being targeted, it is also a way to make sure that those that are responsible can be identified and then dealt with accordingly. I believe that eventually seeing that such behavior will not be tolerated and those who engage will suffer consequences would serve as a deterrent for others as well.

Having to function within a hostile environment whether it is created by means of any gestures, written communications, on social media websites, verbal statements, or physical acts that cause another person to suffer from fear or anxiety of physical harm is not right and should no longer be tolerated. Long-term mental scaring from intimidation, humiliation, or embarrassment is something that no individual should have to face day after day. Passing the Safe Schools Improvement Act and also a federal law, would hold bullies accountable and would ultimately reduce the number of incidents that involve bullying such as suicides and school shootings. The fact is that some people are just not strong enough to endure being constantly picked on and they should not have to be.