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When will schools take bullying seriously? Children who suffer severe, long-lasting injuries at the hands of school bullies have little or no hope of recovery for the harm done. A new theory could remove the shield of immunity.

When I was a high school teacher, we had a saying: Put out matches, not forest fires. One child making fun of another was a lighted match. A student throwing a punch in the hallway was a forest fire. We worried about the little acts that led to larger acts, and we responded early, while we could still prevent a child from getting hurt.

The approach served us well for a couple of reasons. First, there are always some children who will test the limits to see which rules the adults are serious about enforcing. Second, the testing rarely begins at the extremes; before child/'en risk lighting fires, they light matches--little insults, slightly malicious teasing, mild threats--to see if the adults are paying attention and if they will respond. Mildly aggressive behavior nearly always precedes serious aggression.

Unfortunately, too many school officials behave as if little acts of aggression deserve little attention. Compounding the problem, they of ten underestimate the seriousness of patterns of aggression--bullying--that do real and long-lasting harm to children. Victims are left with three unhealthy options: to continue to suffer, to stay away from school, or to retaliate.

Bullying can destroy victims' desire to learn--and even to live--and can leave them debilitated well into adulthood. The magnitude of the problem and the seriousness of its effects have been thoroughly documented. There is no longer any real debate that bullying is one of the most pervasive and damaging threats that exist in the schools.

Passive approaches to bullying guarantee its continued vitality and reinforce denial and blame-shifting by school officials. (1) Nevertheless, current law offers few real incentives for education al change. A substantial disconnect currently exists between how courts define "reasonable supervision" and what we know about bullying, its effects, and its prevention. Similarly current state statutes do not require the processes that we know will effectively reduce bullying and reshape schools' cultures. It is time to rethink our legal response to schools that allow bullies to torment other children.

Definition, effects, and prevention

First, let's be clear about what educational researchers mean by "bullying." It is not the occasional encounter with a blowhard or even the genuine tough guy. It is not the occasional insult of short-lived teasing that everyone encounters in life. It is not simply exclusion from this or that clique.

Bullying, as it is usually defined in the studies conducted over the past decade, means persistent, pervasive harassment targeting a specific individual. (2) Typically conducted behind teachers' backs, (3) it may include threats and physical assaults. It may consist of daily cruelties designed to make a child appear weak and vulnerable in front of his or her peers. (4) Bullying may be a systematic isolation that strips a child of friends and leaves him or her shunned by everyone in the class. (5) It often involves the acquiescence and even participation of the larger group. (6) It is an ongoing type of abuse that usually requires a seemingly insurmountable imbalance of power. (7)

Research has demonstrated that bullying harms not only the victim but the bully and bystanders as well. Victims of ten succumb to emotional breakdown, depression, and suicide. (8) Many bystanders experience intense feelings of vulnerability and, in some cases, suffer the same emotional problems as the targets. (9)

Other bystanders frequently join in the bullying and begin to view the victims as somehow deserving of the treatment. (10) The bullies themselves have a remarkably high probability of a criminal conviction by the time they reach their early 20s. (11)

Research also has identified proven strategies for dramatically reducing bullying in schools, regardless of the setting. Bullying, it tunas out, is not a function of location but a function of school climate, (12) and school climate can be transformed if administrators and teachers are willing to lead the way. (13)

Schools that have adopted a proactive approach to changing the school's climate have been remarkably effective in creating positive, safe learning environments for their students regardless of the culture that existed at the outset or that exists in the surrounding community. (14)

In fact, when properly implemented, a whole-school approach to developing an anti-bullying policy is as important as the policy itself because of the process's effectiveness in informing and mobilizing the entire school community to focus on bullying's effects and prevention. (15)

School officials who have tried this approach use anonymous questionnaires and other information-gathering tools to assess what is happening in a school. Then, through extensive and ongoing dialogue, education, training, and planning, the entire school community--teachers, administrators, staff, students, and parents--as well as members of the larger community, create over time a shared set of expectations for everyone involved and practical strategies for ensuring that those expectations are met. (16)

There is nothing particularly revolutionary about the process or surprising about the results. When the school community works together to change a culture of bullying and violence, the culture changes. Bullies, after all, run the school only as long as everyone lets them keep control.

Unlikely liability

Unfortunately, school officials have little legal incentive to embrace significant reform because the.), are seldom held responsible even for serious outbreaks of violence among students, much less for the ongoing harassment that occurs routinely in their halls and classrooms. Courts, hesitant to hold teachers and administrators liable for the intentional acts of third parties, leave most victims of student violence and harassment without a remedy against the adults in whose care they were injured. (17)

Tort claims against school officials for negligent supervision rail for a variety of reasons. In some states, sovereign immunity completely shields school officials from liability for acts committed during performance of the officials' supervisory duties. (18) Some courts view the perpetrator's acts as an intervening cause that precludes negligent supervision as a proximate cause of the injury. (19) Other states may allow recovery on the basis of negligent supervision, but only in cases involving gross negligence, wanton or reckless behavior, or bad faith on the part of school officials. Under that standard, an Ohio court concluded that even a complete absence of supervision while protracted and vicious violente was perpetrated was not actionable. (21)

Many courts are reluctant to conclude that such acts are foreseeable absent knowledge of a specific threat or a particular student's dangerous propensities. For example, a Louisiana court held that despite a virtual absence of supervision in a locker room where a student was violently attacked by three other students, the injuries were not foreseeable. (22) According to one witness, "' [Al lmost every day . somebody [was] getting pushed or shoved into lockers, rolled around, thrown around.., hair being pulled, arms twisted ....'" (23)

In fact, the school board knew that three students had assaulted a classmate in another of the same coach's physical education classes, and one witness testified that there were unreported fights in that class every day, Nevertheless, the court reasoned that because there was "no prior history of any violence" between the plaintiff and his three attackers and because the school had no knowledge of the daily "roughhousing" in the locker room during that particular class, the school could not have foreseen the injury. (24)

Some jurisdictions are less forgiving of schools that fail to properly supervise students, and their courts are willing to impose an ordinary negligence standard; but it seems to take an egregious lapse to violate the standard. In California and Florida, for example, courts view student misconduct as foreseeable and therefore not necessarily an intervening cause that will automatically relieve schools of liability when peers injure peers. As they point out, "'[W]e should not close our eyes to the fact that ... boys of 17 and 18 years of age, particularly in groups where the herd instinct and competitive spirit tend naturally to relax vigilance, are not accustomed to exercise the same amount of care for their own safety as persons of more mature years.'" (5)

Even those courts, however, require a nearly complete absence of supervision when the act occurred. For example, a Florida court was willing to impose liability for failure to supervise when an emotionally disabled student was beaten and sexually assaulted by a group of students for 10 minutes in the back of a shop class and a substitute teacher did not intervene. Testimony conflicted as to whether the teacher was absent from the room during the entire episode or was in the room but completely unaware of what was happening. (26)

Similarly, a court in California concluded that school officials' failure to supervise a restroom, when they knew or should have known that the plaintiff "was subject to an unusual risk of harm" in that particular restroom, could violate a "duty to use the degree of care which a person of ordinary prudence, charged with comparable duties, would exercise in the same circumstances." (27)

What is striking in these cases is that school officials failed in their supervision so dramatically that it is difficult to see how ordinary negligence would differ from gross negligence.

It is not difficult, of course, to understand why courts have been reluctant to hold school officials liable for ordinary negligence when bullying or violence injures students. The typical teacher makes dozens of decisions every day about how and whether to respond to various levels of student misbehavior. It seems patently unfair to hold a teacher liable for a single decision that would not have harmed a student were it not for the intentional act of another. Schooling is far too complex an endeavor for teachers and administrators to be held to such a standard.

Nevertheless, fair as such approaches to liability might be to the school official, they do little to help the children who are tormented or physically injured at the hands of bullies. The unlikelihood of liability provides no sense of urgency for change and reinforces the notion that school officials have no real power to effect it.

Therein lies the fundamental flaw in our current legal definitions of "reasonable supervision": They define supervision too narrowly. They fail to acknowledge the causal relationship between school climate and victimization. They are based on the notion that the only thing schools can do to protect students against injury is to provide the physical presence of a school official and act on clear threats when the warning comes early enough for intervention.

In other words, the definitions are incident-specific when they should focus just as intently on what steps school officials have taken to create a sale climate. Designed to take into account the realities of schooling, current tort theories ironically ignore the reality that effective supervision is a sustained, directed, and collective effort that focuses on both the dynamics of a particular situation and the climate of the school as a whole.

Statutory solutions also have failed to create incentives for implementing the kinds of change that educational research has consistently suggested. Causes of action based on federal constitutional theories or rooted in Title IX are typically fruitless as a practical matter. State statutes requiring stronger reactions to bullying behavior do not embrace of require whole-school processes that lie at the heart of effective school reform.

Section 1983 claims have generally been unsuccessful because schools are usually deemed not to have a special relationship with students and therefore cannot be held to have a duty to protect students against the actions of third parties. For example, a federal trial court held that a school district had no affirmative duty to protect a student from rapes inflicted by other students even when a teacher in the classroom where they occurred was aware of the rapes at the time they were occurring and did nothing. (28)

The court explained that although school officials were aware of ongoing sexual harassment and physical assaults against female students in general and the plaintiff in particular, the officials' acts "did not inhibit [the plaintiff] of her parents' ability to provide for her basic needs"; thus, no special relationship existed to create an affirmative duty to protect her from the assaults. (29)

Title IX claims for gender-based harassment succeed only where school officials had actual knowledge of the hostile environment and were deliberately indifferent to the problem. (30) Under that standard, school officials need not address bullying as a hidden by-product of school culture; and when they do become aware of a specific bullying situation, any action at all is likely to survive the deliberate-indifference requirement.

State safe-schools acts do not inspire effective change because they seldom require comprehensive reform, even when they explicitly address bullying. The acts provide no significant penalties or private right of action for failure to provide a safe environment. For example, Oregon's safe-schools statute, while requiring the development of a bullying policy, provides that "school districts are encouraged to develop the policy after consultation with parents and guardians, school employees, volunteers, students, administrators, and community representatives." (31) Because the statute requires no thorough process, schools are free to proceed as if no problem truly exists, and the school community can remain uninformed and passive.

Colorado's safe-schools statute may be a step in the right direction, but it also falls short of ensuring effective action. The statute does mandate a process similar to the whole-school approaches that educational experts have begun to recommend. It requires that each school board adopt, or revise if necessary, a safe-school plan that includes, among other things, "a specific policy concerning bullying prevention and education." (32)

The Colorado safe-school plan is to be adopted "following consultation with the school district accountability committee and school advisory councils, or school accountability committee, whichever is applicable, parents, teachers, administrators, students, student councils where available, and where appropriate, the community at large...." Ostensibly, however, the required "consultation" could be conducted as a perfunctory meeting with representatives of the constituencies rather than as an intensive and sustained discussion based on a thorough assessment of the level of bullying going on in each school.

Oklahoma's anti-bullying statute also encourages parental and student involvement in policy development and requires safe-school committees to review research-based programs for bullying prevention and make recommendations to the principal. (33) It is unclear whether the schools are required to include implementation of such programs as part of the policies the school develops. Nevertheless, the simple fact that the legislature specifically requires their consideration is certainly a step forward.

The various statutory approaches to bullying suffer from a disconnect similar to the one that plagues tort theories. Requiring policies rather than processes, the statutes do little to inspire schools to do more than write a statement that bullying will be punished in some fashion. In fact, many current and proposed anti-bullying statutes require the state department of education to draft a model policy that may be adopted by the schools. (34) The critical processes of assessment and community-wide dialogue and planning are not only not required, they are affirmatively replaced by a cookie-cutter policy developed by a state agency.

So, at present, we still seem to be caught between unacceptable extremes: On the one hand is an unfair and unrealistic ordinary-negligence standard that most courts will not impose, and on the other is something like a gross-negligence standard or complete immunity that inspires little proactive behavior. Where statutes address bullying at all, they tend to "encourage" rather than require significant reform.

As a result, the passive approach to bullying is alive and well in the schools. Unless educators, lawmakers, and courts find a way to force school officials to take bullying prevention seriously, it will continue unabated in schools in every community. Far too many children--victims and bullies alike--will suffer lifelong consequences for that neglect.

A new theory

Schools officials must be given real incentives to vigorously confront the problem of bullying and related violence. First should be a new definition of reasonable supervision, one that bases school officials' liability on their failure to take deliberate, research-based action to provide a bullying-free environment for their students.

While school officials should never be forced to guarantee their students' safety, they should be expected to take reasonable steps to make students as safe as possible within the constraints imposed by the complexities of schooling. We know now that those constraints do not preclude emotionally and physically safe school climates.

Victims' advocates should direct courts and legislatures to the substantial body of educational research concerning bullying and its prevention. Once courts and lawmakers align the definition of reasonable supervision with that research, the schools will rethink their own concepts of what is reasonable. Schools will no longer be willing to set the bar so low that children are virtually guaranteed to suffer torment at the hands of their peers, with all of the attendant injuries for the victims, the bystanders, and the bullies.

Of course, such an approach to negligent supervision could expose schools to paralyzing levels of liability. Therefore, the approach should protect schools that engage in legitimate, research-based processes to reduce bullying and should reserve liability for schools that ignore the research.

The school that, in good faith, implements research-based reform to prevent bullying should enjoy a rebut table presumption of reasonable supervision. That reform should incorporate the whole-school approach--including ongoing assessment, training, community-wide discussion, and effective planning--that educational research has consistently identified as essential to effective bullying prevention.

From the moment the reform process is introduced, the school should be presumed to be reasonable in its supervision unless the plaintiff can demonstrate that the school was actually aware of the specific harassment being endured by the plaintiff and was deliberately indifferent to it.

The school that does not implement such research-based reform should face a rebuttable presumption that its supervision was negligent. The school should be required to show that nothing it could have done--including reforming its supervision policies--would have protected the child from injury.

Such an approach would have several benefits. First, it would reward schools with a safe harbor from liability when they initiate serious reform. Second, it would reduce school disorder and allow teachers and administrators to spend more time educating children and less time dealing with the serious misbehavior that flourishes where supervision strategies are inadequate. Third, it would eliminate the temptation on the part of school officials to remain complacent about the damage occurring in their own schools. Finally--and most important--it would dramatically reduce the level and frequency of torment inflicted on children in our nation's schools every day.

Perhaps the best way to introduce such a change in the law would be to do so statutorily. In fact, this approach would probably be required in jurisdictions that treat disciplinary decisions as discretionary and therefore provide schools immunity from liability absent gross negligence or the like. The legislature could leave that immunity undisturbed for most disciplinary decisions by defining the good-faith implementation of anti-bullying processes as mandatory and non-discretionary and explicitly exempting the decision of whether to engage in anti-bullying reform from the immunity shield.

In jurisdictions where immunity does not exist, either the courts or the legislatures could redefine reasonable supervision. In all jurisdictions, however, those who have authority to define the liability of schools for ignoring bullying should do so in a way that forces officials to engage in real reform and to begin to protect schoolchildren from abuse at the hands of their peers.

Educational research has told us what common sense has said all along: Schools that put out matches avoid forest fires. It is time that the lessons of modern research and old-fashioned common sense find their way into the legislatures, the courtrooms, and--most important--the classrooms.

Notes

(1.) For example, despite repeated pleas over a period of months from Aurelia Davis and her daughter, LaShonda, that school officials intervene to stop ongoing harassment of LaShonda by one of her peers, school officials failed to take action. The principal responded at one point by asking why LaShonda "'was the only one complaining.'" Davis v. Monroe County Bd. of Educ., 526 U.S, 629,635 (1999).

(2.) Raymond T. Chodzinski & Fran Burke, Bullying: A Conflict Management Issue for Teachers, Parents, and Child Care-Givers, MOSAIC, Spring 1998, at 1,2.

(3.) Often, adults do not realize the intensity of duration of bullying against a particular child, even when an incident finally brings the problem to the adult's attention. VALERIE F. BESAG BULLIES AND VICTIMS IN SCHOOLS: A GUIDE TO UNDERSTANDING AND MANAGEMENT 56 (1989).

(4.) Ron Banks, Bullying in Schools ERIC DIG., Apr. 1997, at 2, 2-3.

(5.) Chodzinski & Burke, supra note 2, at 4-5.

(6.) One study of 164 students in a large urban community revealed that peers cooperated in more than 85 percent of the incidents of bullying identified in the study, Id. at 8.

(7.) Id. at 2.

(8.) Id. at 4.

(9.) BESAG, supra note 3, at 53.

(10.) Banks, supra note 4, at 3.

(11.) One study revealed that "60 percent of those characterized as bullies in grades six to nine had at least one criminal conviction by age 24." Id. at 2.

(12.) BESAG, supra note 3, at 101-02.

(13.) The elimate of the school "sets the parameters of acceptable behavior among all school actors, and it assigns individual and institutional responsibility for school safety." Wayne N. Welsh, The Effects of School Climate on School Disorder, 567 ANNALS AM. ACAD. POL. & SOC. SCI. 88, 89 (2000).

(14.) BESAG, supra note 3, at 100.

(15.) DEREK GLOVER ET AL., TOWARDS BULLY-FREE SCHOOLS 52-53 (1998).

(16.) See Ira M. Schwartz, et al., School Bells, Death Knell, and Body Counts: No Apocalypse Now, 37 HOUS. L. REV. 1, 17 18 (2000); see also BESAG, supra note 3, at 117.

(17.) Cary Silverman, School Violence: Is It Time to Hold School Districts Responsible for Inadequate Safety Measures?, 145 EDUC. L. REE 535, 537 (2000).

(18.) E.g., Rudd v. Pulaski County Special Sch. Dist., 20 S.W.3d 310, 315 (Ark. 2000) (holding that a negligence action based on school officials' failure to prevent a school bus shooting would be precluded under Ark. Code Ann. [section] 219-301, which provides that "no tort action shall lie against any . political subdivision because of the acts of its agents and employees").

(19.) E.g., Franks v. Union City Pub. Schs., 943 P.2d 611, 614 (Okla. 1997) (holding that an "unprovoked one punch fight" was a supervening cause precluding school officials' liability for failing to provide supervision in the activity room where the assault look place). The court had already concluded that the school was not negligent in failing to provide supervision of the area. Id. at 613.

(20.) E.g., OHIO REV. CODE ANN. [section] 2744.03 (A) (5) (2002).

(21.) Marcum v. Talawanda City Schs., 670 N.E.2d 1067, 1070 (Ohio Ct. App. 1996) (bolding that "a classroom teacher has wide discretion ... to determine what level of supervision is necessary to ensure the safety of the children in his or her care").

(22.) Wallmuth v Rapides Parish Sch. Bd., 813 So. 2d 341, 348-49 (La. 2002).

(23.) Id. at 343.

(24.) Id. at 348-49.

(25.) Broward County Sch. Bd. v. Ruiz, 493 So.2d 474, 478 (Fla. Dist. Ct. App. 1986) (quoting Dailey v. L.A. Unified Sch. Dist., 470 P.2d 360, 364 (Cal. 1970).

(26.) Collins v. Sch. Bd. of Broward County, 471 So.2d 560 (Fla. Dist. Ct. App. 1985).

(27.) Leger v. Stockton Unified Sch. Dist., 249 Cal. Rptr. 688, 693-95 (Ct. App. 1988); see also, e.g., Dailey, 470 P.2d 360 (holding that liability could lie under an ordinary negligence standard where two gym coaches failed to notice 30 students gathered around a 10-minute "slap fight," even though both coaches were in the gymnasium at the time).

(28.) E.g., Maxwell v. Sch. Dist. of Philadelphia, 53 F. Supp. 2d 787 (E.D. Pa. 1999).

(29.) Id. at 789-91. The court did conclude, however, that the plaintiff had stated a claim under the state-created-danger theory because school officials had locked the classroom door, preventing the possibility of escape, Id. at 792-93. See also, e.g., Castaldo v. Stone, No. CIV,00-B-1611, 2001 WL 1808538, at *43 (D. Colo. Nov. 27, 2001) (holding that Columbine plaintiffs could state no [section] 1983 claim on the basis of a special relationship between the school and its students). The court explained that "public education does not impose a sufficient limitation upon students' freedom to act to create a special relationship.... "; thus, "no special relationship existed between the [Columbine] school defendants and the plaintiffs" to support an "affirmative duty to protect" the students from assault. Id.

(30.) Davis, 526 U.S. 629, 646-47. A deliberate-indifference standard requires very little action on the part of school officials to avoid liability. Almost any action at all will defeat the claim under that standard. As applied in [section] 1983 claims and most state negligent-supervision claims, the deliberate-indifference standard requires behavoir" more akin to an intentional than a negligent act." Silverman, supra, note 17, at 549.

(31.) OR. REV. STAT. [section] 339.356(1)(2001)(emphasis added).

(32.) COLO.REV.STAT. [section] 22-32-109.1(2)(a)(X) (2001).

(33.) OKLA. STAT. tit. 70, [section] 24-100.5 (2002).

(34.) See, e.g., VT. STAT. ANN. tit. 16 [section] 565(b) (2002), requiring that each school board develop and adopt bullying policies "at least as stringent as model policies developed by the commissioner." The statute does not require community involvement in the development of adoption of the policy and seems to view adoption of the state version of the policy as satisfactory compliance with the statute.

DANIEL B. WEDDLE is an associate clinical professor of law at the University of Missouri, Kansas City.
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