Law and policy can be used for a range of functions, including preventing undesirable behaviors and securing desirable ones (Raz, 1979). Both the mandate of a particular law and the presence of the law itself can help shape attitudes and behaviors. Public health has long relied on law and policy as components of a response to threats to human health and safety, from the control of infectious diseases to motor vehicle safety to safer foods and drinking water (Goodman et al., 2006). Law has also been employed to address various forms of violence against children, such as mandatory reporting laws, which were adopted to address child abuse (Institute of Medicine and National Research Council, 2014). For examples of the role of law in addressing public health issues, see Table 6-1.
Bullying implicates a breadth of federal and state laws and policies. In this chapter, the committee provides an overview of relevant laws and policies that relate to bullying at the federal and state level and discusses selected litigation efforts aimed at addressing bullying. The committee also reviews recent research on the impact of state anti-bullying laws and policies on bullying, as well as the implementation of these laws and policies, and discusses existing gaps in this literature that warrant additional research.
Before we begin, the committee provides a brief discussion on the rationale for the inclusion/exclusion criteria for the studies that are reviewed in this chapter. This chapter sets out the federal and state law and policy
|Public Health Achievement|
|Control of Infectious Diseases||Sanitary codes and drinking water standards; quarantine and isolation authority; zoning ordinances and building codes; mosquito- and rodent-control programs; inspection of food establishments||Authority to conduct disease surveillance, require disease reports, and investigate outbreaks; regulation of drinking water, waste disposal, and food supplies; licensure of health professionals||Public Health Service Act of 1944; Safe Drinking Water Act of 1974; National Environmental Protection Act of 1976|
|Motor Vehicle Safety||Speed limits; limitation on liquor store hours; penalties for serving inebriated bar patrons||Seatbelt, child-safety-seat, and motorcycle-helmet laws; vehicle inspections; drive licensing and graduated driver’s license systems; authorization to conduct sobriety checkpoints; zero tolerance for alcohol among drivers under age 21 years; prohibition on alcohol sales to minors; 0.08% blood alcohol content per se laws; speed limits||Performance and crash standards for motor vehicles; standards for road and highway construction; safety-belt use in some commercial vehicles; financial assistance to states to promote and enforce highway safety initiatives; airbag warning labels; creation of state offices of highway safety; federal court ruling upholding motorcycle-helmet use|
|Fluoridation of Drinking Water||Ordinances authorizing fluoridation; referenda and initiatives authoring fluoridation||Legislation authorizing fluoridation; court ruling upholding fluoridation||Federal court rulings upholding fluoridation of public drinking water supplies; Environmental Protection Agency caps on fluoride levels|
|Public Health Achievement|
|Recognition of Tobacco Use as a Health Hazard||Excise taxes; restrictions on retail sale to minors; clean indoor air laws||Excise taxes; restrictions on retail sale practices; clean indoor air laws; funding for public antismoking education; lawsuits leading to the Master Settlement Agreement of 1998||Excise tax mandated warning labels; prohibition of advertising on radio and television; penalties on states not outlawing sale of tobacco products to persons under 18 years of age; financial assistance to state and local tobacco-control programs; Department of Justice lawsuit to recover health care costs|
|Vaccination||School board enforcement of school entry vaccination requirements||Court rulings supporting mandatory vaccination; school entry admission laws||Court rulings supporting mandatory vaccination; licensure of vaccines; financial aid to state vaccination programs|
|Decline in Deaths from Coronary Heart Disease and Stroke||Education and information programs||Tobacco control laws; education and information programs||Food-labeling laws; Department of Transportation funding for bikeways and walking paths; National High Blood Pressure Education Program|
|Safer and Healthier Foods||Standards for and inspection of retail food establishments||Mandated niacin enrichment of bread and flour; standards for and inspection of foods at the producer level; limits on chemical contamination of crops||Pure Food and Drug Act of 1906 and later enactments to regulate foods and prescription drugs; mandated folic acid fortification of cereal grain products; limits on chemical contamination of crops; food stamps; Women, Infants, and Children Program; school meals|
|Public Health Achievement|
|Healthier Mothers and Babies||Sewage and refuse ordinances; drinking water codes; milk pasteurization||Establishment of maternal and child health clinics; licensure of healthcare professionals in obstetrics; mandated milk pasteurization; funding for Medicaid services||Drinking water quality standards; creation of the Children’s Bureau (1912) with education and service programs; licensure of sulfa drugs and antibiotics; creation of the Medicaid program; Infant Formula Act of 1980|
|Family Planning||Funding for family planning clinics||Authorization to provide birth control services; authority to provide prenatal and postnatal care to indigent mothers||Family Planning Services and Population Research Act; Supreme Court rulings on contraceptive use|
|Safer Workplaces||Authority to inspect for unsafe conditions; building and fire safety codes||Laws to inspect and regulate workplace safety practices, including toxic exposures; criminal penalties for grossly negligent worker injury or death||Minimum safety standards for federal contractors; inspection and regulation of mine safety; mandates on states to adopt minimum workplace safety standards; Occupational Health and Safety Health Act of 1970|
SOURCE: Adapted from Centers for Disease Control and Prevention (2006).
framework. Except for one study1 and a brief committee overview on zero tolerance policies, the committee does not include local and school policy for several reasons. First, few systematic evaluations of local or school-specific policies exist. Second, there is great diversity of practice at the local
1 The one exception was a study that provided evidence for the effectiveness of school district anti-bullying policies that enumerate protected groups. This study was included because it was one of the few studies on this topic that used an objectively coded measure of the antibullying policy.
and school level, and local policies and practices are shaped by a breadth of factors, including perceptions, traits unique to a particular school, and others. Third, in many jurisdictions, state law provides the mandate that local entities adopt measures to address bullying in their district or schools. Thus, we view local or school policies largely as measures taken to implement federal or state law and policy.
Additionally, the committee recognizes that various laws use different terms to address bullying. For example, federal law typically refers to “harassment” rather than “bullying.” In some instances, the terms have important distinctions; for example, bullying definitions typically include power imbalance as an element, while laws on harassment do not necessarily require a power imbalance (Cornell and Limber, 2015). Yet, as Cornell and Limber explain, “The term harassment is often used interchangeably with bullying, [even though] it has an established history in civil rights law and policy that precedes the fledgling laws and developing policies concerning bullying” (Cornell and Limber, 2015, p. 335). The committee’s review includes laws and policies that refer to bullying (as defined in Chapter 1) as well as other laws and policies—most notably, federal laws—that are recognized as applying to bullying even though they use other terms such as “harassment” instead of “bullying.”
Federal Law and Policy
There is no specific federal law on bullying. However, federal law and policy provide a framework for many of the responses to bullying. Federal law offers protections and remedies for certain individuals, while federal agency guidelines provide recommendations to states and localities developing and assessing their responses to bullying.
Civil rights and antidiscrimination laws secure rights for protected classes of individuals if they have been subjected to harassment. Relevant federal law—which is overseen and enforced by the U.S. Departments of Justice and Education—prohibits discrimination based on the following traits (U.S. Department of Education Office of Civil Rights, 2010b; U.S. Government Accountability Office, 2012):
Schools can be found in violation of these federal laws and relevant implementing regulations when bullying is based on race, color, national origin, sex, disability, or religion and is “sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees” (U.S. Department of Education Office of Civil Rights, 2010b, p. 1). In other words, schools have a legal responsibility for maintaining safe environments that enable children and adolescents to pursue the education and other services or opportunities available at that school. Under the same authorities, schools are responsible for addressing harassment that school administrators and teachers are aware of or that they should reasonably have known about. In such cases, schools must take immediate and appropriate action to address the harassment.
In addition to the above, the Individuals with Disabilities Education Act (IDEA) offers further protections for select students.8 It requires states that receive federal education funding to provide children with disabilities a free appropriate public education. That education must be provided in the least restrictive environment and in conformity with an individualized education program.9 Therefore, if bullying interferes with a covered child’s access to an appropriate public education, a claim can be brought against the school for failing to secure such an environment. Unlike remedies under the civil rights laws cited above, an IDEA claim typically does not lead to compensatory damages. Instead it can result in the school being required to take specific steps to ensure the child has access to an appropriate education. The U.S. Departments of Education and Justice oversee and enforce federal law addressing discrimination and harassment. Individual com-
2 Civil Rights Act of 1964, tit. IV, 42 U.S.C. §§ 2000c to 2000c-9 (2012).
3 Civil Rights Act of 1964, tit. VI, 42 U.S.C. §§ 2000d to 2000d-4 (2012).
4 Education Amendments of 1972, tit. IX, 20 U.S.C. §§ 1681-88 (2012). Title IX protects students—including lesbian, gay, bisexual, and transgender (LGBT) students—from sex discrimination but does not expressly prohibit discrimination based on sexual orientation. Title IX has been held in select cases to include protection from harassment for failing to conform to stereotypical norms of masculinity or femininity, but those decisions do not equate to a guarantee of protection for LGBT students.
5 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2012).
6 Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (2012).
7 Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189 (2012).
8 20 U.S.C. §§ 1400–1482 (2012).
9 20 U.S.C. §§ 1412, 1414 (2012).
plaints can be filed with either Department, depending on the nature of the allegations. Complaints filed with the Department of Education’s (DOE’s) Office for Civil Rights are typically resolved through agreements entered into with schools to take specific actions to address the harassment, and these actions can be individual or systemic (such as adopting policies and procedures, training staff, or addressing the specific incidents). Complaints filed with the Department of Justice can lead to, among other things, consent decrees and negotiated settlements that require schools to address bullying. In addition, individuals can pursue civil actions, discussed below in the “Litigation” section (U.S. Government Accountability Office, 2012).
As the above discussion of federal law indicates, federal law is limited to recognized protected classes, so if a child is not a member of a protected class and is subjected to bullying, he or she might not have a remedy under federal law. However, state or local remedies might be available; that is, federal law establishes a floor, rather than a ceiling, and individual states, districts, or schools can create anti-bullying laws and policies that include traits not expressly covered by federal law (discussed in the “State and Local Law and Policy” section below).
In addition to offering potential remedies, federal law also enshrines protections of individual rights, which limit the actions schools and other government entities can take. In particular, constitutional protections on speech and privacy, which guard against undue government intrusion on liberty, have implications in the context of bullying. In the landmark case Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court stated that students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”10 Similarly, the Supreme Court has recognized that students are entitled to constitutional protections against unlawful searches and seizures.11 In both areas, the courts have granted schools latitude, allowing schools to impose some limitations on students’ rights in order to preserve a positive educational environment and to ensure student safety. This permits schools to limit speech at schools that is lewd, obscene, hateful, or threatens violence. It also has allowed schools to adopt drug-testing policies for athletes (Hanks, 2015). Balancing schools’ authority to police students and students’ constitutional rights is an ongoing challenge. As state laws expand schools’ authority beyond school grounds, particularly in the context of cyberbullying (see discussion on scope of schools’ authority in “State and Local Law and Policy” below), the parameters of schools’ authority and students’ constitutional rights will be revisited in future cases.
Beyond existing federal statutes, the federal government also has the ca-
10 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).
11 New Jersey v. TLO, 469 U.S. 325 (1985).
pacity to proffer policies and more informal guidelines that have significant influence on state and local responses. Two notable initiatives include the Dear Colleague Letter of October 26, 2010, from the DOE Office for Civil Rights (U.S. Department of Education Office of Civil Rights, 2010b), and DOE’s suggested list of key components for state and local laws and policies, which was distributed to governors and chief state school officers as part of the Dear Colleague Letter of December 16, 2010. (Dear Colleague Letters are formal memos to relevant state and local officials offering guidance on a particular issue) (U.S. Department of Education Office of Civil Rights, 2010a).
The Dear Colleague Letter of October 26, 2010, provides an overview of relevant federal law and delineates schools’ responsibilities to address various forms of bullying (U.S. Department of Education, Office of Civil Rights, 2010b). It also provides examples of school-based bullying and details how a school should address the issue in each case.
Also in 2010, DOE identified 11 recommended components for state and local laws and policies on bullying, including (1) a purpose statement; (2) a statement of scope; (3) specification of the prohibited conduct; (4) enumeration of specific characteristics—actual or perceived—of students who have historically been targets of bullying; (5) development and implementation of local education area policies; (6) essential components of local education area policies; (7) provision for regular review of local policies; (8) a communication plan for notifying students, students’ families, and staff of policies related to bullying; (9) training and prevention education; (10) transparency and monitoring; and (11) and a statement that the policy does not preclude those who are bullied from seeking other legal remedies (U.S. Department of Education, Office of Civil Rights, 2010a). DOE developed these criteria to provide states and localities with technical assistance as they consider new or revised legislation or policies to address bullying. Although the committee finds that these recommended components are relevant, it recognizes that there is limited evidence-based research on what components of a state or local law or policy must have, in order to have a positive impact in addressing bullying (see section below, “Impact of Laws and Policies on Bullying”).
These two Dear Colleague Letters provide important guidance that can help state and local actors strengthen law and policy and improve responses to bullying in compliance with federal law.
State and Local Law and Policy
State and local law and policy constitute a key component of current responses to bullying. Given the substantial amount of childhood spent at school, the fact that most responses to bullying to date have been school-
centered, and that education has historically been the primary responsibility of state and local government, it is important to ensure that appropriate laws and policies are in place to promote and support anti-bullying programs. For the reasons explained in the introduction to this chapter, this section focuses on state law and policy and does not include local or school-based policies. In view of the significant attention given to school-based zero tolerance policies, the committee included Box 6-1, which reviews the research on that strategy for responding to bullying. In addition, the committee cites a number of individual state statutes in this section. These examples are illustrative of the range of existing law and policy responses to bullying and should not be viewed as an endorsement of the effectiveness of particular laws or policies. (See section “Impact of Laws and Policies on Bullying” for a discussion of the effectiveness of anti-bullying policies.) In the past 15 years, all 50 states and the District of Columbia have adopted or revised laws on bullying (Child Trends, 2015). Forty-nine states and the District of Columbia include electronic forms of bullying (cyberbullying) in their anti-bullying statutes.12 Many state laws require school districts or schools to implement policies but allow school districts or schools to determine specific policy content (Hinduja and Patchin, 2011). Thus, policies may vary across schools and communities. Most states now also have model bullying policies.13
While all 50 states and the District of Columbia have adopted antibullying laws, there are significant differences in the content of these laws. To begin, although most states’ laws include a definition of bullying, the states do not use a uniform definition to outline the proscribed behaviors. Therefore, an act or series of actions may constitute bullying in certain states but not others. For example, in New Jersey, bullying can be “a single incident or a series of incidents,” while in Nebraska, bullying is defined as “any ongoing pattern” of abuse.14,15 Adding to the differences, select state laws direct the state department of education or similar agency to develop a definition (e.g., Wisconsin) or delegate that decision to local school districts (e.g., Arizona) (Sacco et al., 2012). In addition, state law definitions of bullying do not necessarily conform to bullying definitions used in social science research or in anti-bullying programs.
12 Alaska does not include electronic forms of bullying in its anti-bullying law, but it amended its definition of “the crime of harassment in the second degree” in 2014 to include electronic forms of harassment of an individual under 18 years of age. See Alaska Stat. Ann. § 11.61.120 (West 2015).
13 For detailed state-by-state information on state laws and model policies, see the Department of Health and Human Services Website for its Stop Bullying initiative, see http://www.StopBullying.gov [August 2015].
14 N.J. Stat. Ann. § 18A:37-14 (West 2015).
15 Neb. Rev. Stat. Ann. 79-2,137(2) (West 2015).
Similarly, as states have moved to address the emerging threat of cyberbullying, definitions of cyberbullying used among the states vary greatly. While some states use the term “cyberbullying,” others simply refer to any “electronic” communication. For example, Iowa prohibits any “electronic, written, verbal, or physical act or conduct toward a student” that constitutes bullying (emphasis added). It defines “electronic” as “any communication involving the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means. “Electronic” includes but is not limited to communication via electronic mail, Internet-based communications, pager service, cell phones, and electronic text messaging.”16 The Massachusetts’ definition of cyberbullying includes many of the same means, but also explicitly includes the act of assuming someone else’s identity online in a way that causes harm to or fear in another student, creates a hostile school environment for another student, infringes on another student’s rights, or disrupts the school environment.17 The Massachusetts’ definition of cyberbullying includes
bullying through the use of technology or any electronic communication, which shall include, but shall not be limited to, any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications. Cyber-bullying shall also include (i) the creation of a web page or blog in which the creator assumes the identity of another person or (ii) the knowing impersonation of another person as the author of posted content or messages, if the creation or impersonation creates any of the conditions enumerated in clauses (i) to (v), inclusive, of the definition of bullying. Cyber-bullying shall also include the distribution by electronic means of a communication to more than one person or the posting of material on an electronic medium that may be accessed by one or more persons, if the distribution or posting creates any of the conditions enumerated in clauses (i) to (v), inclusive, of the definition of bullying.18
The specific mention of electronic forms of bullying, or cyberbullying, in these state laws does not create separate policies for cyberbullying but rather adds cyberbullying as a type of bullying covered by the particular anti-bullying law or policy of that state. These broad definitions of bullying, encompassing both traditional forms and cyberbullying, when combined with the expanded scope of school authority in many states (described
16 Iowa Code § 280.28(2)(b) (2015).
17 Mass. Gen. Laws Ann. Ch 71, §370(a) (West 2015).
18 Mass. Gen. Laws Ann. Ch 71, §370(a) (West 2015).
below), allow schools to address bullying in a range of locales—real and virtual.
In addition, while many states provide an enumerated list of protected or vulnerable groups, others do not. Among those states that provide an enumerated list, some are more extensive than others. For example, Massachusetts’ law provides that certain students may be more vulnerable based on “actual or perceived differentiating characteristics, including race, color, religion, ancestry, national origin, sex, socioeconomic status, homelessness, academic status, gender identity or expression, physical appearance, pregnant or parenting status, sexual orientation, mental, physical, developmental or sensory disability or by association with a person who has or is perceived to have 1 or more of these characteristics.”19 Vermont’s anti-bullying law explicitly recognizes vulnerability based on a “student’s or a student’s family member’s actual or perceived race, creed, color, national origin, marital status, sex, sexual orientation, gender identity, or disability.”20 In contrast, a number of states—for example, Arizona, Ohio, and Texas—do not enumerate protected classes in their anti-bullying laws.21,22,23,24 There is some debate over whether it is better to enumerate protected classes or to have nonspecific language that does not enumerate specific groups. In general, the enumeration of protected classes in a law can be used in two ways: either to explicitly limit a statute’s coverage or to highlight the need to address particular individuals or situations. In the context of bullying, it has been argued that “a more inclusive approach is to enumerate the groups deemed most vulnerable for bullying, but to explicitly recognize in the law that any form of bullying against any student is prohibited” (Cornell and Limber, 2015, p. 340). However, there is a dearth of research on the extent to which enumeration of protected classes is effective in addressing bullying among at-risk youth. For more on the existing evidence of the effectiveness of enumerating protected classes in reducing bullying, see the section on “Impact of Laws and Policies on Bullying” below.
There are also significant differences in the scope of schools’ jurisdiction. Some states limit schools’ authority to school grounds and other sites or events controlled by schools. For example, North Carolina’s antibullying law is limited to any act that “takes place on school property, at any school-sponsored function, or on a school bus.”25 Other states have granted authority to schools to address bullying that occurs elsewhere but
19 Mass. Gen. Laws Ch 71, § 37O (d)(3).
20 Vt. Stat. Ann. tit. 16 § 11(a)(26)(a) (West 2015).
21 Ariz. Rev. Stat. Ann. § 15-2301 (2015).
22 Ohio Rev. Code Ann. § 3313.666 (West 2015).
23 Tex. Educ. § 37.0832 (West 2015).
24 Arizona classified bullying as hazing.
25 N.C. Gen. Stat. Ann. § 115C-407.15 (West, 2015).
affects the school environment for the child who is bullied. For example, Maryland’s statute covers any act that “[o]ccurs on school property, at a school activity or event, or on a school bus; or . . . [s]ubstantially disrupts the orderly operation of a school.”26 The Maryland law and more than 20 other similar state statutes implicitly grant schools authority over acts that have no nexus with the school (Suski, 2014). This expansive authority is particularly pertinent to cyberbullying because in many cases, electronic forms of bullying occur when students are neither at a school function nor in each other’s presence. The broad authority granted to schools raises questions about both students’ rights (e.g., speech and privacy) and the potential additional expectations on schools to police student interactions beyond the school campus (see the section “Future Directions” below for discussion of potential implications).
Differences also exist among the states with respect to other key components of anti-bullying laws, ranging from prevention programs, including training of teachers and other key personnel, to reporting procedures and related protections for students who are bullied (Sacco et al., 2012; Stuart-Cassel et al., 2011). In Massachusetts, for example, school districts’ plans must include “professional development to build the skills of all staff members, including, but not limited to, educators, administrators, school nurses, cafeteria workers, custodians, bus drivers, athletic coaches, advisors to extracurricular activities and paraprofessionals, to prevent, identify and respond to bullying.”27 Such plans must also include “provisions for informing parents and guardians about the bullying prevention curriculum of the school district.” In terms of reporting incidents of bullying, many state laws require school districts to establish reporting procedures—in some cases, making school personnel mandatory reporters—and mandate protections against retaliation for reporting bullying.28
Finally, most laws that address bullying establish an unfunded mandate (Sacco et al., 2012). Although providing a safe learning environment can be viewed as part of schools’ core responsibilities and thus covered by general education funding, many anti-bullying laws specifically ask school districts and schools to take on additional tasks—such as providing training on bullying for teachers and other school personnel—without allocating additional funds for these tasks. Insufficient funding can impose limitations on implementation and enforcement of these laws. (See “Implementation of Anti-Bullying Laws and Policies” later in this chapter for further discussion of these limitations.)
A small number of studies have assessed the content of state laws, each
26 Md. Code Ann., Educ. § 7-424 (West, 2015).
27 Mass. Gen. Laws Ch 71, § 37O(d).
28 See, for example, Ga. Code Ann. § 20-2-751.4(c) (West, 2015).
using its own criteria. As described above, DOE recommends inclusion of 11 components in state and local laws. Employing a public health framework, Srabstein and colleagues (2008) suggested that anti-bullying laws should include (1) a clear definition of bullying, (2) an explicit articulation of prohibition against bullying, (3) funded prevention and treatment programs, and (4) recognition of the association between bullying and public health risks (Kosse, 2005; Srabstein et al., 2008). Kosse (2005) proposed a legal framework that recommends 10 components for state legislatures to require of school districts: (1) a general statement of the policy that a school district values a learning and working environment that is free from any type of violence and harassment, (2) consistent statewide definitions of the types of violence and harassment prohibited, (3) specific reporting procedures, (4) specific investigation procedures, (5) a consistent range of school district actions, (6) a reprisal provision prohibiting retaliation, (7) a statement that the policy does not prohibit other procedures available or required under law, (8) provisions describing how the policy will be disseminated and employees and students trained, (9) penalty provisions for schools that fail to adopt or enforce anti-bullying policies, and (10) a requirement that policies be submitted for review to the state’s Department of Education.
Each of these frameworks identifies important components of law- and policy-based responses to bullying. As described later in this chapter, research on the impact of law on the prevalence of bullying is limited. Therefore, while the above frameworks can help guide the development of anti-bullying policies and programs, these frameworks have not been fully evaluated in order to determine which components must be included in an anti-bullying law to ensure a positive impact. As with all new law, there is typically a time lag from adoption to full implementation and subsequent population impact. Given that many of the state laws have been adopted relatively recently, evidence on implementation and impact is still emerging.
Finally, in addition to anti-bullying laws, states’ civil rights laws might offer protections for individuals who are not members of groups enumerated under federal law (U.S. Government Accountability Office, 2012). However, no assessment has been conducted of state civil rights laws to identify available protections against bullying and procedures for filing complaints under those state laws (U.S. Government Accountability Office, 2012). Further research is needed to determine the full range of remedies available under state and local law and policies. Finally, see Box 6-1 (above) for an overview of zero tolerance policies, why they were created, and why there are concerns about them.
While anti-bullying statutes provide a mandate to create a framework for preventing and responding to bullying, litigation offers another avenue to pursue a remedy for harms suffered as a result of bullying. This section reviews litigation efforts, providing details on the types of claims brought and their success. The committee does not include specific cases and fact patterns, both because litigation is a narrow remedy and because these claims filed in court typically represent the more severe cases of bullying and thus are not representative of the range of cases. The committee did not want to suggest that a particular case or two was paradigmatic of bullying incidences.
Litigation presents an opportunity to secure a remedy in select cases; however, the great majority of instances of bullying do not reach litigation. Any review of case law on bullying therefore captures neither instances that do not result in a legal claim nor those cases that are settled before a judgment is issued. Thus, the case law on bullying represents a small percentage of bullying cases and is not necessarily representative. Given the cost of pursuing litigation, it is likely that the case law reflects more severe cases in which there is better evidence that a school or its employees were aware of the bullying.
There are few empirical studies of bullying-related litigation. Holben and Zirkel (2014) reviewed cases for more than 20 years (1992 to 2011) and found 166 court decisions on bullying claims. The overwhelming majority of cases (89%) were litigated in federal court, as opposed to state court. Plaintiffs were a member of a protected class in 84 percent of the cases, with the most frequent protected traits being gender, disability, perceived sexual orientation, and race/ethnicity. School districts and school employees were named as defendants in the majority of cases, with defendants more likely to be institutions than individuals (Holben and Zirkel, 2014).
Plaintiffs’ claims relied most often on the following laws: Title IX of the Civil Rights Act of 1964, Fourteenth Amendment substantive due process, Fourteenth Amendment equal protection, negligence, and state civil rights or equal protection claims. Plaintiffs’ greater reliance on federal rather than state law might reflect an effort to avoid state law–based immunities for schools and their employees, which may bar legal claims against schools and their employees. It might also reflect the fact that state law opinions are often unpublished. In only 6 of the 166 cases were the rulings based on anti-bullying laws (Holben and Zirkel, 2014). This limited use of antibullying laws reflects in part the constraint that in many states such laws do not create a separate private right of action.
Over this 20-year period, court decisions consistently favored the defendant. Holben and Zirkel (2014) reported that only 2 percent of the
742 claim rulings (many cases involve multiple claims) were conclusively decided for the plaintiff, whereas 65 percent were conclusively for the defendant. Analyzing court decisions, rather than individual claims, revealed a similar, although less pronounced, slant toward defendants: 5 percent of decisions conclusively favored the plaintiffs, while 41 percent conclusively favored the defendants. Of the remaining court decisions, 34 percent were inconclusively for the plaintiffs (e.g., denial of a motion for dismissal), 15 percent were inconclusively for the defendants (e.g., denial of plaintiff’s motion for summary judgment), and 5 percent were relatively evenly split between the parties (Holben and Zirkel, 2014). Although plaintiffs’ claims brought under Title IX or the IDEA had the best success rates (Holben and Zirkel, 2014), most Title IX and IDEA cases still favored the defendants.
Both the limited number of bullying-related cases and the evidence that results tend to favor defendants indicate that litigation is a limited remedy. Though some individuals have been successful in pursuing remedies through the courts for bullying-related harms, plaintiffs face several challenges in pursuing litigation. They must prove severity of harm and the lack or ineffectiveness of a school’s response once the school knew or should have known about the bullying. Qualified immunity—which protects “government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”29—also presents a significant hurdle in many cases.30 Finally, anecdotal evidence suggests that it is important to educate judges and other professionals in the legal system on the harms inflicted by bullying, as litigation efforts addressing other forms of discrimination have benefited from the incorporation of social science research.31
Although landmark cases can spur changes in law and policy, the evidence suggests that only a limited number of children who are bullied will be able to secure a remedy through the courts. These limitations highlight the importance of ensuring that anti-bullying laws and policies produce robust prevention programs.
29 Quoted passage is from the decision in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
30 From a presentation by Craig Goodmark (Atlanta Legal Aid Society) at a public information-gathering session to the Committee on the Biological and Psychosocial Effects of Peer Victimization: Lessons for Bullying Prevention, National Academy of Sciences, June 24, 2015, Washington, DC.
31 Brief of social psychologists as Amici Curiae in support of plaintiff-appellants, in NAACP v. Horne (9th Cir. 2013) (No. 13-17247).
As federal antidiscrimination laws continue to evolve, additional research will be needed to assess the extent to which federal law protects all children and adolescents who are vulnerable to bullying. Further research is also needed on state civil rights laws and state antiharassment laws: their coverage, procedures for filing complaints under such laws, and their viability in addressing bullying (U.S. Government Accountability Office, 2012). State anti-bullying laws have emerged quickly and changed considerably in the past 15 years in order to address various forms of bullying, including cyberbullying. The impact of this body of law is inherently limited by the requirement not to violate constitutional rights of individuals. Important questions exist about the balance between schools’ authority to address bullying and students’ rights to freedom of expression and privacy (Hanks, 2015). Further research is needed in this area to ensure that state and local laws and policies provide schools sufficient authority to prevent and respond to bullying, while also ensuring that schools’ actions in particular cases do not violate students’ constitutional rights, particularly with respect to school policing of electronic communications that do not occur at any school event. Additional research is also needed to assess the impact of litigation, including the threat of litigation, on schools. Finally, as detailed above, there is considerable variation among state laws in terminology and definitions of bullying that are used. Further research is needed to better understand whether and how these differences affect responses to bullying.
Despite the proliferation and ubiquity of anti-bullying legislation, there has been very little empirical examination of the effectiveness of such laws in reducing bullying. Instead, existing research on anti-bullying laws has focused almost exclusively on content analyses of anti-bullying laws, as discussed in the previous section (e.g., Limber and Small, 2003; Srabstein et al., 2008; Stuart-Cassel et al., 2011). In a 2003 review of the literature on anti-bullying laws and policies, Limber and Small noted that “the question of whether state laws can provide a useful vehicle for reducing bullying behavior among children remains unanswered” (p. 448). In a follow-up review paper written over a decade later, Cornell and Limber (2015) similarly stated, “Although the content of state anti-bullying laws has been evaluated and contrasted, remarkably little research has been conducted to study how these laws and policies are implemented and to what effect” (p. 341). While this literature is still in its early stages, there are now a handful of published studies that have examined the effectiveness of anti-bullying policies, which the committee discusses below.
One approach to examining effectiveness has been to conduct single-state evaluations over time. In this approach, researchers use quasi-experimental data to examine whether rates of bullying victimization within a single state are lower after the implementation of an anti-bullying law, compared to rates before the law was implemented. In an example of this work, Schwab-Reese and colleagues (2016) conducted an evaluation of Iowa’s anti-bullying law (Iowa Code 280.28), which was passed in 2005. The law required schools to adopt an anti-bullying policy that defines acts of bullying, to establish a process for reporting incidents, and to describe consequences and actions for bully perpetrators. To evaluate the effectiveness of this law, the researchers used data from sixth, eighth, and eleventh graders from Iowa who completed the Iowa Youth Survey (similar to the Youth Risk Behavior Surveillance System dataset; see Chapter 2) in 2005, 2008, and 2010. The odds of respondents reporting that they were frequently bullied increased in the first year after the law was passed, possibly due to improved reporting. However, odds of reporting being bullied decreased from 2008 to 2010 (though not below pre-law levels) (Schwab-Reese et al., 2016). Similar delayed or gradual effects of laws have been observed in other types of public health law studies (e.g., Wagenaar and Komro, 2013; Webster et al., 2002).
Research has also examined associations between anti-bullying laws and bullying outcomes in multistate evaluations. In one study, investigators examined how bullying rates were associated with 25 state anti-bullying laws. Specifically, data on reports of being the target of bullying or cyberbullying in the past 12 months came from students in grades 9-12 who were participating in the 2011 Youth Risk Behavior Surveillance System study (n = 63,635). These data, which were obtained from DOE, were linked to anti-bullying laws from 25 states. Students living in states with anti-bullying policies that had at least one DOE-recommended legislative component had 24 percent reduced odds of reporting being bullied and 20 percent reduced odds of being a target of cyberbullying, compared to students living in states whose laws had no DOE-recommended legislative components (Hatzenbuehler et al., 2015). These analyses controlled for relevant state-level confounders such as violent crime rates in the state. In addition, three individual components of anti-bullying laws were consistently associated with decreased odds by 20 percent or more for being a target of either bullying or cyberbullying. First, a statement of scope was included in the law that describes where the law applies and the circumstances under which
the school has the authority to take action (e.g., whether the law applies if students are off-campus but the event is sponsored by the school). Second, the law included a description of prohibited behaviors that defined the behaviors that are considered bullying, in some cases differentiating bullying behavior from what may be developmentally appropriate peer interactions and in other cases specifying that the behavior must be repeated to be a bullying behavior. Third, the state law included requirements for districts to develop and implement local policies, requirements that dictated the components that must be included in local policies and that may set a timeline in which the local policy must be developed. These three components, noted by Hatzenbuehler and colleagues (2015), offer details and specificity that provide clarity for school administrators and may increase the likelihood that they feel empowered to act.
Australia in 2003 became one of the first countries to implement a national policy (the National Safe Schools Framework, NSSF) for the prevention of aggressive behaviors among youth, including bullying. The NSSF specified and discussed six key elements that schools were expected to measure as part of their implementation of the policy: (1) schools’ values, ethos, culture, structures, and student welfare; (2) policies, programs, and procedures; (3) education/training for school staff, students, and parents; (4) managing incidents of victimization; (5) providing support for students; and (6) working closely with parents. To evaluate the effectiveness of the NSSF, Cross and colleagues (2011) collected data in 2007 from 7,418 students, ages 9-14, from 106 representative Australian schools and compared that data with similar data collected in 1990. In 1990, 24.9 percent of students, ages 9-14, reported being bullied “at least once a week.’’ In contrast, 16 percent of students ages 9-14 reported being bullied “at least once a week” in 2007. The authors suggested that there was a “downward trend” in reports of being bullied between the two time periods (Cross et al., 2011, p. 5). However, the prevalence of students who reported bullying others was similar between the two time periods.
Effects of Anti-Bullying Laws on At-Risk Populations
As reviewed in Chapter 2, several groups are disproportionately targeted by bullying, including sexual minorities (i.e., lesbian, gay, bisexual, and transgender [LGBT] youth; Berlan et al., 2010), overweight/obese adolescents (Puhl and Latner, 2007), and students with disabilities (Rose et al., 2010). Few studies have examined whether anti-bullying policies are effective in protecting at-risk groups against peer victimization and asso-
ciated adverse outcomes (Hatzenbuehler and Keyes, 2013). In one study, Hatzenbuehler and Keyes (2013) coded school district Websites and student handbooks across 197 school districts in Oregon to determine whether the districts had any anti-bullying policies (harassment and antidiscrimination policies were not included in this category) and, if so, whether these policies contained sexual orientation as a protected class (referred to in the literature as an “enumerated group”). Thus, these data made it possible to differentiate between three combinations of anti-bullying policies: (1) the absence of anti-bullying policies; (2) the presence of anti-bullying policies that either did not include any enumerated groups or, if groups were enumerated (e.g., gender, race, religion), sexual orientation was not specifically mentioned (referred to below as “restrictive” policies); and (3) anti-bullying policies that were inclusive of sexual orientation (referred to below as “inclusive” policies). These policy data were then linked to 3 years of pooled data from the Oregon Healthy Teens survey, a population-based dataset of eleventh- grade public school students (n = 1,413 lesbian, gay, and bisexual students, or 4.4%). Because information on location of residence for the study participants was only available at the county level, the measures of anti-bullying policies were aggregated from the district to the county level by dividing the number of school districts with anti-bullying policies by the total number of school districts in the county. Variables were then created for the proportion of school districts that had restrictive and inclusive anti-bullying policies within each of 34 Oregon counties (Hatzenbuehler and Keyes, 2013).
This study revealed three noteworthy findings. First, although the study did not assess bullying, it did include one measure of peer harassment/victimization (“During the last 30 days, have you been harassed at school or on the way to or from school?”). Peer harassment/victimization of all youth (heterosexual and those who were lesbian, gay, or bisexual) was less likely to occur in counties with a greater proportion of school districts with inclusive anti-bullying policies, although the effect was small (harassment/victimization was 6 percent less likely to occur in countries with inclusive policies).
Second, researchers were also interested in whether anti-bullying policies were effective in reducing the risk of suicide attempts among lesbian and gay youth, given previously reported relationships between bullying and suicide attempts among this population (e.g., Rivers, 2004; Russell et al., 2011). Results indicated that lesbian and gay youths living in counties with the fewest number of school districts with inclusive anti-bullying policies were 2.25 times (OR = 2.25; 95% CI [1.13, 4.49]) more likely to have attempted suicide in the past year compared to those living in counties with the most number of school districts with inclusive policies. Moreover, inclusive anti-bullying policies were significantly associated with a lower risk
of suicide attempts among lesbian and gay youths even after controlling for sociodemographic characteristics (sex, race/ethnicity) and exposure to peer harassment/victimization (OR = 0.18; 95% CI [0.03-0.92]).
Third, anti-bullying policies that did not include sexual orientation (i.e., “restrictive” policies) were not associated with lower suicide attempts among lesbian and gay youth. These results suggest that policies had to include sexual orientation in the list of protected classes in order to be effective in protecting lesbian and gay youths from attempting suicide. The results also suggest the importance of specifically including sexual orientation in anti-bullying policies that enumerate protected groups, in order to signal supportive and inclusive school environments for lesbian and gay students.
There is considerable debate regarding the enumeration of protected groups in bullying laws, with some researchers arguing that enumeration highlights the importance of administrators protecting youth that are most vulnerable to bullying, and others saying that enumeration protects only a small subset of youth that are targets of bullying (Cornell and Limber, 2015). The Oregon study by Hatzenbuehler and Keyes (2013) did not code the other groups that were protected in the inclusive policies; consequently, it was not possible to test whether enumerated policies were effective in reducing risk of peer harassment/victimization among other at-risk groups (e.g., overweight/obese youth).
Methodological Assessment of Existing Literature
The studies discussed above have provided important initial insights into the efficacy of anti-bullying policies, but the findings should be considered in light of certain methodological limitations. Two of these studies (Hatzenbuehler and Keyes, 2013; Hatzenbuehler et al., 2015) were cross-sectional. Thus, researchers inferred, but could not test, causal relationships between anti-bullying policies and bullying behavior. For instance, although the studies controlled for potential confounders, an unmeasured common factor may be responsible for the observed relationship between anti-bullying laws and bullying outcomes. In the Australian study, researchers compared rates of bullying from two cross-sectional studies before and after the implementation of a national policy aimed at addressing bullying and other aggressive behaviors among youth (Cross et al., 2011). Although this pre-post analysis improves upon single-time-period cross-sectional designs, numerous events occurred during the implementation of the policy that could also affect bullying behaviors (e.g., media coverage, the implementation of whole-school programs that address the same outcomes), introducing a threat to the internal validity of the study (known as a history threat; see Shadish, 2002). Moreover, bullying was merely one of a number
of issues that were targeted through this policy in Australia. It is therefore possible that the policy did not adequately address bullying behaviors.
The study by Schwab-Reese and colleagues (2016) improved upon these methodological limitations through the use of a quasi-experimental design, which afforded the opportunity to examine whether bullying was reduced following the implementation of Iowa’s anti-bullying policy. However, this study did not have a comparison group—for example, a state that did not currently have an anti-bullying policy—which would have strengthened the study’s ability to determine whether it was the policy, rather than some other factor, that was responsible for the observed relationships. Further, the study demonstrated the importance of having data before and after the bullying legislation was passed, given the initial uptick followed by a reduction in bullying at subsequent assessments. However, it is often quite difficult to obtain data before a policy is enacted, particularly given that all states currently have anti-bullying laws. Time-series analyses are therefore likely to be particularly important in future studies exploring the impact of anti-bullying policies. Finally, none of the studies included information on implementation of these laws (see “Implementation of Anti-Bullying Laws and Policies” later in this chapter) to evaluate the prevalence of bullying across different levels of implementation (i.e., examining implementation as a moderator of the law’s impact on bullying behavior).
The study of the impact of anti-bullying laws and policies on bullying is in its relative infancy. Therefore, several critical directions for future inquiry remain in order to advance this literature (for a review, see Hatzenbuehler et al., 2014). These directions are explored below.
Research on mediating mechanisms is needed to uncover why antibullying laws or policies are effective in reducing bullying. There are multiple ways in which anti-bullying policies could reduce bullying behaviors, ranging from changing social norms in the school to improving opportunities for reporting bullying. It is currently unknown which of these mechanisms is an “active ingredient” in effective anti-bullying policies. Thus, an important direction for future studies is to identify the processes linking anti-bullying policies to reductions in bullying behavior, which will inform the development of more effective anti-bullying policies that can target these specific mechanisms.
Additionally, research into moderating factors can provide critical information on youth for whom anti-bullying policies are most effective and, conversely, youth for whom these policies are less effective. In particular, it is currently largely unknown whether anti-bullying policies are effective in protecting youth known to be at disproportionate risk for bullying vic-
timization (but see Hatzenbuehler and Keyes, 2013). Whether anti-bullying laws—including the enumeration of specific groups—are effective in reducing disparities in bullying victimization is therefore largely unknown. Furthermore, youth with intersectional identities (i.e., with more than one stigmatized characteristic or identity, such as being a black lesbian) could potentially benefit from anti-bullying policies; the conceptual literature on intersectionality (e.g., McCall, 2005) provides a framework for evaluating the impact of anti-bullying policies on adolescents with multiple marginalized statuses.
Existing studies have focused on anti-bullying laws as a primary prevention strategy for preventing bullying behavior. However, it is also plausible that such policies might prevent bullying perpetration and other forms of peer aggression and violence (e.g., weapon carrying, physical fights), a topic that deserves attention in future studies. In addition, anti-bullying laws can also be conceptualized as a secondary prevention strategy for reducing the adverse sequelae among those who are bullied. For instance, is the relationship between being the target of bullying and adverse health outcomes (e.g., depression, suicide attempts, substance use, retaliatory aggression) attenuated (or even eliminated) among those youth who attend schools with more comprehensive anti-bullying policies? Addressing these and other questions will help inform the potential reach of anti-bullying policies.
As discussed above, there are several frameworks for understanding and evaluating anti-bullying policies. Currently, only the DOE framework has been evaluated. Given that existing frameworks highlight different foci, results from the DOE framework may not be generalizable to other antibullying law frameworks, such as the public health framework mentioned above (Srabstein et al., 2008). Future studies need to compare these frameworks and identify best practices.
Finally, as previously mentioned, the first anti-bullying law was implemented more than 15 years ago, and this was followed by a fairly rapid policy response in other states. These laws have largely been reactive to particular events, such as the Columbine High School shootings in 1999 and suicides among youth who were reportedly bullied. (See Chapter 4 for more detail on school shootings.) There is substantial heterogeneity across states in terms of what is included in anti-bullying laws. Little is known, however, about how emerging evidence, sustained advocacy, and political opportunity converged to create this proliferation of laws to address the issue of bullying across the nation, despite the fact that the field of public health policy research has made clear that the range of possible policy solutions is shaped by the ways in which problems emerge and are framed (e.g., see Table 6-1). A social history of the emergence of bullying as a focus of public policy concern is therefore needed, as understanding the circumstances under which any issue gains traction and draws attention
as needing remediation is critical in crafting effective policy responses (e.g., Lerner, 2011).
In order for many of these questions to be addressed in future research; it will be necessary for new data structures to be created, as well as for modifications to be made to existing data structures. In particular, one of the methodological challenges confronting researchers is that many population-based studies that include bullying outcomes do not provide information at geographic units of analysis (e.g., state, school district, or school levels) that would enable researchers to evaluate the implementation and impact of anti-bullying policies. Collaborations between researchers and the federal agencies that create these datasets are therefore needed to address these barriers in order to further facilitate research on this topic.
If there is a dearth of research on the effectiveness of anti-bullying laws and policies, there is even less empirical research on the implementation of these policies. This is due, in part, to the relatively recent focus on law and policy specifically within the context of bullying, as well as to the lack of attention more generally to the factors that determine how social policies are implemented (Burris et al., 2010). In this section, the committee provides a review of the existing evidence on the implementation of anti-bullying policies. We first discuss the methods that have been used, then review and evaluate the literature, and finally consider important directions for future inquiry.
Several methods have been used to evaluate the implementation of anti-bullying policies, including: (1) content reviews of school and district policies to determine compliance with anti-bullying laws (e.g., Temkin et al., 2014), (2) quantitative surveys of teachers and administrators to identify perceived barriers to implementation (e.g., Cross et al., 2011), and (3) in-depth qualitative interviews that seek to understand institutional forces that hinder or support policy implementation (e.g., EMT Associates Inc., 2013). These implementation studies span different geographic scales, ranging from single cities (e.g., Washington, DC, in Temkin et al., 2014) to single states (e.g., Iowa in Ramirez et al., 2014) to multiple states (e.g., EMT Associates Inc., 2013) and, in one study, a countrywide evaluation in Australia (Cross et al., 2011). Impact evaluations of the implementation of anti-bullying policies have thus far largely been conducted either by task forces appointed by members of the executive and legislative branches (e.g., the New Jersey Anti-Bullying Task Force) or by independent contractors who were hired by agencies (e.g., DC Office of Human Rights; Temkin et al., 2014). In one instance, the U.S. Government Accountability Office (GAO) initiated a performance audit at the request of Congress (U.S. Gov-
ernment Accountability Office, 2012). Although not designed as an implementation study per se, the GAO audit did include several interviews with school administrators and parents in an attempt to ascertain challenges that hindered anti-bullying efforts, including difficulties in the implementation of anti-bullying policies.
Similar to the previous section on the effectiveness of anti-bullying policies, the review in this section of the existing research evidence on implementation is organized by geographic scope of the study, starting with a single state, moving to multistate assessments, and finally to a countrywide implementation analysis.
A mixed-methods study in Iowa examined how schools in that state implemented its anti-bullying law (Ramirez et al., 2014). Researchers conducted quantitative surveys of (n = 145) and qualitative interviews with (n = 27) middle school administrators. Although administrators in general reported being successful in developing an anti-bullying policy for their school as mandated by state law, the implementation of the policy presented certain challenges. Specifically, in qualitative interviews, administrators reported difficulties in interpreting the legal definitions of bullying, which created challenges both in confirming bullying cases as well as in disciplining bullying behaviors (Ramirez et al., 2014). Further, administrators reported challenges in obtaining the financial resources that were necessary to support the successful implementation of certain components of the antibullying policies (e.g., teacher training).
Two multistate studies have examined the implementation of antibullying policies, and both reported findings similar to those obtained in the single-state analysis in Iowa. In the first study, researchers who were contracted by DOE conducted site visits in 11 school districts and 22 middle schools (diverse with respect to ethnicity, urbanicity, and socioeconomic status) in four states selected from different regions in the United States (the states are not named in the report). The study’s stated goals were to “describe how schools were implementing components of their states [sic] bullying laws, to determine how differences in state legislation influenced school responses to bullying on school campuses, and to identify challenges and school supports associated with the implementation process” (EMT Associates Inc., 2013, p. iii). At the site visits, 281 semistructured qualitative interviews were conducted with numerous constituencies such as state education agency representatives, school and district personnel, school principals, school counselors, teachers, and bus drivers.
Results from these interviews revealed some positive aspects related to anti-bullying law and policy. For instance, many respondents reported
that their ability to identify and effectively respond to bullying incidents was strengthened by the policies’ requirements that schools develop procedures for handling bullying. Moreover, nearly all respondents supported the policies’ emphasis on raising expectations that schools were responsible for preventing and addressing bullying (EMT Associates Inc., 2013). At the same time, a number of barriers to implementation were observed. Although teachers and other school staff were typically aware of the existence of anti-bullying policies, many were not familiar with the particular details of the policies, which in turn hindered implementation. Additional impediments to the effective implementation of anti-bullying policies included (1) teachers’ confusion over whether certain behaviors constituted bullying (versus other forms of peer aggression) and therefore whether these behaviors warranted reporting and any disciplinary responses, as required by the state legislation; (2) district administrators’ stated difficulties over how to investigate and resolve incidents of cyberbullying and other forms of bullying that occurred off campus (i.e., understanding the scope of anti-bullying policies); and (3) perceived pressures of time and cost in responding to new mandates resulting from anti-bullying policies, such as completing reporting requirements and formal complaint procedures (EMT Associates Inc., 2013).
In addition to documenting particular challenges to implementation, the report revealed several institutional factors, identified by school staff, that supported the implementation of anti-bullying policies, including: “strong school leadership, effective communication, a sense of collaboration among school and district staff, and school structures that helped cultivate relationships among faculty and students and that encouraged information-sharing and problem-solving to achieve resolution of incidents” (EMT Associates Inc., 2013, p. v).
In the second multistate study, the GAO sampled six school districts across eight states (Arkansas, California, Illinois, Iowa, Massachusetts, New Mexico, Virginia, and Vermont) that varied with respect to several dimensions, including geography, student enrollment, and the state’s anti-bullying policies (e.g., how bullying was defined in the policy, which protected classes of students were enumerated in the policy). The audit conducted interviews with central administrators, principals, school staff, and parents (the number of interviews that were conducted is not provided in the report). The results from these interviews revealed three areas of concern—each of which is covered in anti-bullying law and/or policy—among state and local officials: (1) challenges in determining appropriate responses for out-of-school incidents, including cyberbullying; (2) difficulties in helping parents and youths distinguish between bullying versus other forms of peer aggression and conflict; and (3) obstacles presented by lack of funding
available for training teachers and staff in bullying prevention, identification, and response (U.S. Government Accountability Office, 2012).
Only one study has evaluated the implementation of anti-bullying policies at the country level (this study evaluated a broader school safety framework in Australia known as the National Safe Schools Framework, or NSSF, of which bullying prevention was only one component). In this study, Cross and colleagues (2011) collected data from 106 schools that were surveyed as part of the Australian Covert Bullying Prevalence Study. In each school, four teachers who taught grades 4 through 9 and two senior staff (typically the principal and deputy principal) completed quantitative surveys, in which they rated both their school’s implementation of the 23 whole-school policy and practice strategies as part of the NSSF and their school staff’s expertise in addressing bullying. A quarter of the teachers were unsure about the contents of the school’s policy, rendering implementation of the policy recommendations and practices difficult. Furthermore, fewer than half of the schools reported using more than half of the strategies in the NSSF policy, indicating the implementation rates were low (Cross et al., 2011).
Methodological Assessment of Existing Studies
Research on the implementation of anti-bullying policies, while sparse, has begun to provide some valuable initial insights regarding challenges to the implementation of these policies, such as lack of awareness of the specific components of the policies among school administrators and teachers, as well as confusion over the scope of the policies and the specific behaviors that meet the definition of bullying (Ramirez et al., 2014; U.S. Government Accountability Office, 2012). On the other hand, this research has noted some positive aspects of the policies, including focusing greater attention on bullying within schools. In addition, certain supports were identified that have facilitated the successful implementation of these policies, including strong leadership and effective communication (EMT Associates Inc., 2013).
At the same time, there are important limitations to this research. Only one of these studies used a probability design (Cross et al., 2011); the others relied on purposive sampling to obtain states, and school districts within states, that varied on dimensions hypothesized to affect implementation (e.g., rurality, socioeconomic characteristics). Consequently, results from the majority of evaluation studies are not generalizable to the population of school-based youths. In addition, the implementation studies vary widely in terms of their purpose: some were not designed specifically to address implementation of anti-bullying policies (e.g., Cross et al., 2011; U.S. Government Accountability Office, 2012), whereas others (e.g., Temkin et al.,
2014) evaluated some components of implementation—compliance with establishing a policy—but not others (e.g., fidelity of the implementation). In short, very few studies have been designed with the stated purpose of comprehensively examining the implementation of anti-bullying policies.
The methods employed have also varied substantially across studies, and in some instances it is unclear what methods were used. For instance, the GAO (2012) report stated, “We analyzed narrative responses thematically” (p. 33) but did not provide specific details about whether statistical programs for qualitative data were used (e.g., NVivo) or what particular approaches guided the data analysis (e.g., grounded theory and open and axial coding strategies; Strauss and Corbin, 1990). In the absence of such information, it is difficult to evaluate the validity of the study’s results. Furthermore, most of these studies lacked an explicit theoretical framework that would help guide the data collection, methodologies, research questions, and interpretation of study findings. Though many social science theories and approaches could be appropriate for implementation studies of anti-bullying policies, the theories and methods of implementation science (Lobb and Colditz, 2013) offer one widely used paradigm that may be fruitfully applied to the context of anti-bullying policies. In addition, research on evidence-based public health policies (e.g., Brownson et al., 2009) provides several theoretical frameworks for evaluation, such as the RE-AIM policies (Glasgow et al., 1999), that could be adapted to understand the variability in the specific case of implementing anti-bullying policies.
The circumstances that shape both institutional commitment to the implementation of anti-bullying policies and the characteristics of that implementation require future research. Specifically, practitioners, school administrators, and other stakeholders would benefit from an understanding of the process of anti-bullying policy implementation and the complex social processes involved in the transformation of institutional climate that occurs as a result of anti-bullying policies. For instance, little is currently known about how the school’s institutional climate around bullying changes during the implementation of these policies (e.g., how school norms around bullying are altered). A better understanding is needed of the institutional and cultural barriers that prevent the uptake and/or maintenance of anti-bullying policies in situations in which the school climate related to bullying does not change following adoption of a new policy. Indeed, there is often a general resistance to policy implementation, (e.g., Brownson et al., 2009) and neither the sources of resistance related to anti-bullying policies nor how such resistance may be overcome is well un-
derstood (Hatzenbuehler et al., 2014). Finally, political factors may often determine the development of anti-bullying laws (e.g., which enumerated groups are included) as well as their passage and implementation; however, these political factors are not well understood and deserve more attention in future research. Mixed-methods studies that combine quantitative and qualitative designs are uniquely suited to address these questions but are thus far largely missing from the literature (see Schwab-Reese et al., 2014 for a notable exception).
In the past 15 years, all 50 states and the District of Columbia have adopted anti-bullying laws. The majority of states have supplemented that law with additional policies. Together with existing federal civil rights and anti-discrimination law and state civil rights laws, this wave of state antibullying legislation provides a mandate to address bullying and its harmful consequences. Despite the substantial legislative and policy action on bullying, the variations in law and policy across jurisdictions, as well as the early stage of implementation and evaluation of anti-bullying laws, indicate that considerable work remains to identify the most effective law and policy frameworks for addressing bullying.
Public health policy frameworks (e.g., Srabstein et al., 2008) posit that anti-bullying laws can exert a salubrious influence on youth by preventing bullying behaviors before they occur (thereby serving as a primary prevention strategy), and by reducing the adverse sequelae—such as depression, anxiety, suicidality, and social isolation—among those who are already bullied (thereby serving as a tertiary prevention strategy). While this framework is theoretically sound, research has only recently begun to evaluate whether anti-bullying laws and policies are, in fact, effective in preventing bullying. Two studies have shown positive benefits of the laws in reducing bullying and related constructs (Hatzenbuehler and Keyes, 2013; Hatzenbuehler et al., 2015), whereas two other studies have found more mixed results (Cross et al., 2011; Schwab-Reese et al., 2016). Furthermore, a handful of studies have highlighted both barriers to implementation of anti-bullying policies as well as supports that have facilitated their implementation (EMT Associates Inc., 2013; Ramirez et al., 2014; U.S. Government Accountability Office, 2012); however, variation in the type and quality of methods used in these studies limits the inferences that can be drawn. Little is known about the potential adverse consequences of anti-bullying laws on children and adolescents. For instance, many states’ laws significantly expand school surveillance authority, potentially raising privacy and free speech concerns (Suski, 2014). These and other unintended consequences merit further attention.
At the same time, legal content analyses of anti-bullying policies (e.g., Cornell and Limber, 2015; Limber and Small, 2003), and of state civil rights laws (e.g., U.S. Government Accountability Office, 2012), indicate that there is substantial heterogeneity across states regarding the content of anti-bullying policies and the legal protections conferred to students (e.g., the domain of protected classes). As one report concluded, the nature and extent of protections available to students who are bullied “depend on the laws and policies of where they live or go to school” (U.S. Government Accountability Office, 2012, p. 26). Consequently, the full impact of anti-bullying (and related) laws is currently muted—because some state anti-bullying laws and policies appear to be less effective than others in reducing bullying and its adverse consequences (e.g., Hatzenbuehler et al., 2015), because some institutional and social factors prevent these laws and policies from being fully implemented (e.g., EMT Associates Inc., 2013; Ramirez et al., 2014), and because some state civil rights laws offer incomplete protections to certain categories of youths (U.S. Government Accountability Office, 2012).
Much remains to be learned about the effectiveness of anti-bullying laws and policies and about the factors that contribute to their successful implementation. To be maximally effective, the study of anti-bullying laws and policies requires an interdisciplinary, team-based response, drawing on and integrating theories and methods from such diverse fields as law, public policy, psychology, anthropology, sociology, and history (Hatzenbuehler et al., 2014). There are several potential benefits of an interdisciplinary approach to the study of anti-bullying laws and policies, including the triangulation of multiple sources of data to strengthen causal inferences and the ability to address certain issues related to this topic that are not possible with other disciplinary approaches. For instance, whereas quantitative analyses can provide information on the prevalence and correlates of different features of the implementation process (e.g., type and quality of teacher training that is mandated by the policy, political and social characteristics of school districts that fail to implement the policy), detailed, theory-driven ethnographic research in schools can uncover more covert barriers and facilitators of policy implementation so that effective dissemination of policies across diverse social contexts becomes possible. Although the importance of team-based approaches in science is increasingly recognized (National Research Council, 2015), very little work to date—with rare exceptions (e.g., Hatzenbuehler et al., 2015; Ramirez et al., 2014)—incorporates this sort of interdisciplinary, multimethod approach to address the broad questions of how, to what extent, and under what circumstances anti-bullying laws and policies can effectively reduce the prevalence of bullying and its adverse health, academic, and social consequences.
Finding 6.1: Federal civil rights and anti-discrimination laws offer important protections against bullying, but may be limited in addressing bullying of individuals who are not a member of an enumerated protected class.
Finding 6.2: States and localities have been exploring law and policy solutions to bullying. There is substantial heterogeneity across states, with state laws differing on a number of critical issues, including how bullying is defined and the scope of schools’ authority to respond to bullying. In addition, these legal definitions sometimes differ from definitions used in research and in anti-bullying programs.
Finding 6.3: There is limited evidence on the consequences (either positive and/or unintended) of expanding schools’ authority to address bullying that occurs off-campus. Such consequences include the impact on students’ privacy and speech rights, schools’ potential liability and their capacity to address off-campus bullying, and the prevalence of bullying.
Finding 6.4: Litigation offers a potential remedy for victims of bullying. Although some claimants have been successful in pursuing a remedy through the courts, significant challenges exist in pursuing litigation, and most cases litigated to date have favored defendants (most commonly, schools).
Finding 6.5: There are limited evaluations of the effectiveness of bullying laws in preventing bullying behaviors and in reducing the deleterious consequences of bullying among those who are targets of bullying.
Finding 6.6: Emerging evidence exists to suggest that anti-bullying laws and policies can have a positive impact on reducing bullying and on protecting groups that are disproportionately vulnerable to bullying, such as gay and lesbian youth.
Finding 6.7: As with research on effectiveness, there is limited investigation of the implementation of anti-bullying laws and policies. The few studies that do exist suggest general support for anti-bullying policies by district and school personnel, as well as some factors that facilitate implementation of these policies. But there are several barriers to successful implementation of anti-bullying laws and policies, including lack of awareness of the specific components of the laws and policies
among school administrators and teachers, confusion over the scope of the laws and policies and the bullying behaviors they cover, and the ability of local jurisdictions to fulfill mandates required by law (e.g., teacher training) without additional resources.
Finding 6.8: There is limited investigation of potential adverse consequences of anti-bullying laws, including their potential impact on students’ privacy and free speech rights.
Finding 6.9: There is a lack of analysis of bullying issues and prevention efforts in the context of nonschool settings including, but not limited to, juvenile justice facilities and residential treatment facilities.
Finding 6.10: Zero tolerance policies have not had an impact in keeping schools safer and could have adverse consequences.
Conclusion 6.1: Law and policy have the potential to strengthen state and local efforts to prevent, identify, and respond to bullying.
Conclusion 6.2: The development of model anti-bullying laws or policies should be evidence-based. Additional research is needed to determine the specific components of an anti-bullying law that are most effective in reducing bullying, in order to guide legislators who may amend existing laws or create new ones.
Conclusion 6.3: Further research is needed to assess the implications for both students and schools of expanding schools’ authority to address bullying beyond the school campus and school functions.
Conclusion 6.4: Additional research is needed to further evaluate the effectiveness of anti-bullying laws and policies, including determining (1) whether anti-bullying laws and policies are effective in reducing bullying perpetration; (2) the mechanisms through which anti-bullying laws and policies reduce bullying (e.g., change in perceptions of school safety or norms around bullying); (3) whether anti-bullying laws and policies impact all forms of bullying (e.g., relational, physical, reputational, and cyberbullying) or merely a subset; (4) whether the beneficial consequences of these laws and policies also extend to other forms of youth violence (e.g., weapons carrying, fighting) and risky behaviors (e.g., drug/alcohol use); (5) whether, among those who are bullied, antibullying laws and policies are effective in reducing the adverse sequelae associated with exposure to bullying (e.g., poor academic achieve-
ment, depression, suicidal ideation); and (6) subgroups for whom anti-bullying laws and policies are most, and least, effective—and in particular, whether these laws and policies are effective in reducing disparities in bullying.
Conclusion 6.5: Future studies are needed to more fully elucidate the institutional, contextual, and social factors that impede, or facilitate, the implementation of anti-bullying laws and policies. Such studies should be grounded in social science theory and conducted with larger and more representative samples, and with state-of-the-science methods.
Conclusion 6.6: Evidence-based research on the consequences of bullying can help inform litigation efforts at several stages, including case discovery and planning, pleadings, and trial.
Conclusion 6.7: There is emerging research that some widely used approaches such as zero tolerance policies are not effective at reducing bullying and thus should be discontinued, with the resources redirected to evidence-based policies and programs.
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