Victims without legal remedies: why kids need schools to develop comprehensive anti-bullying policies.

I. INTRODUCTION

The consensus among physicians and social scientists, (1) educators and youth development organizations, (2) civil rights advocates, (3) and law enforcement (4) is that bullying is neither inevitable nor normal, and that it seriously impairs the health and achievement of victims. Consequently, an increasing number of state legislatures, including Ohio's, are mandating that local school boards adopt anti-bullying policies aimed at prevention and mitigation. (5)

What exactly is bullying? "Bullying," a term used interchangeably with peer harassment, means aggressive acts made with harmful intent, repeatedly inflicted by one or more students against another. (6) Acts may be physical, verbal, indirect (such as social exclusion), or electronic (such as posting threatening messages to a website). (7) What distinguishes bullying from mere aggression is that bullying is repetitive and involves a power imbalance between a socially powerful perpetrator and a socially weaker victim. (8) Hence, bullies prey on students who are often marginalized in the wider school community because of actual or perceived differences such as obesity, disability, or sexual orientation. (9)

Federal and state laws neither deter bullying nor provide most victims a remedy for psychological or physical injuries. Generally, federal law, whether civil rights statutes or the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, offers remedies for victims who are bullied on the basis of federally protected criteria: race, nationality, sex, or disability. (10) The vast majority of victims, however, are bullied for reasons that do not fall under this civil rights umbrella. For example, in a survey of Ohio students aged thirteen to eighteen, the majority cite physical appearance as the most common reason students are bullied and harassed (49%), followed by sexual orientation (18%), and gender expression (9%). (11) Moreover, even when victims do fall into protected categories, courts have set a high bar for recovery, with plaintiffs often prevailing in only the most horrific cases. (12)

Victims seeking redress under state tort law often face some variation of the common law doctrine of sovereign immunity. (13) Ohio's sovereign immunity law is typical of state statutes that immunize school districts from negligent supervision claims by allowing: (1) teachers ample discretion to determine the level of supervision necessary to ensure students' safety, (14) and (2) administrators ample discretion to investigate and respond to instances of peer harassment. (15) Statutes may also shield school employees from personal liability for ordinary negligence, making them liable only for misconduct that is reckless, malicious, in bad faith, or outside the scope of employment. (16)

Even if a victim obtains a legal remedy under state or federal law, such remedy comes long after the harm has been done--after the student has changed schools, dropped out, or is well past eighteen. (17) As a practical matter, kids need their schools to adopt and enforce effective anti-bullying policies that will protect them while they are in school. (18) Clearly, policies offering students the greatest protection are those that prevent bullying from happening in the first place, not those merely imposing consequences after incidents arise. (19) Thus, model anti-bullying policies are those that deter bullying by improving overall school climate. (20)

This article presents an overview of current legal theories available to victims of peer harassment. The purpose of this overview is not to encourage lawsuits. Rather, by showing how the law is inadequate either to deter bullying or to provide victims redress, we hope to encourage advocates to help schools develop comprehensive, inclusive anti-bullying policies. Such policies necessarily enumerate specifically protected personal traits or characteristics so that all students--regardless of the basis of their victimization--are protected. (21)