PERSONAL INJURY BLOG

Bullying Never Goes Away: Can Legal Action Help Prevent It?

Thursday, July 05, 2012

Los Angeles (June 7, 2012)—In The Lord of the Flies William Golding created one of literature’s most enduring and tragic outcasts. In the novel, “Piggy” is often treated roughly by the other boys in part because of his intellectual prowess. But most of the bullying he endures is the result of his social awkwardness, lack of athletic ability and his weight. He is different from the other boys. And like at many Los Angeles schools and playgrounds, being different makes a child a target for bullies.

Since the theme of difference and ostracism has been so deeply explored in literature—Huck Finn, Frankenstein, The Hunchback of Notre Dame, Ellison’s Invisible Man—and since tragic cases of bullying are often covered in the news and met with public outrage, why does bullying continue? A clear cut answer is not forthcoming. However, legal action is increasing as a viable solution to the problem.

As was widely reported in the spring of 2010, 15 year old Phoebe Prince took her life after allegedly enduring months of brutal bullying and harassment from her school mates. In the article “Bullying and the Phoebe Prince Case” http://www.theatlantic.com/national/archive/2010/03/bullying-and-the-phoebe-prince-case/38221/)author and lawyer Wendy Kaminerargues that existing law should be enough to punish those allegedly responsible for the bullying. But she also asks:  Could the school have done more to protect her? The simple answer seems yes. But should the school be legally compelled to prevent bullying? 

 As reported recently in the Los Angeles Times,heightened anti-bullying legislation in New Jersey has been used to charge a 19 year old man and two minors in the bullying related suicide of high school freshman Lennon Baldwin (“On heels of Dharun Ravi verdict, 3 charged after teen's suicide” http://www.latimes.com/news/nation/nationnow/la-na-nn-bullying-charges-20120531,0,595605.story). In California, there is an anti-bullying law that was passed in 2011 called Seth’s law; it’s focused on students who are bullied based on their sexuality. It also requires school administrators to investigate charges of any kind of harassment. The law is named for 13 year old Seth Walsh. Seth killed himself after relentless torment for being gay (“Seth's Law helps to further protect LGBT students from bullying” http://www.sfexaminer.com/local/2011/10/seths-law-helps-further-protect-lgbt-students-bullying). 

Of course the vast majority of bullying incidents do not lead to suicide. But, clearly, even less extreme cases are a major concern for state legislators. 49 states have some form of ant-bullying legislation that is designed specifically to discourage the behavior. Many still believe it is not enough. Some attorneys argue that schools and school districts should be held accountable for personal injuries when bullying occurs. Proving that the school was aware of the bullying can be challenging, however. 

The Freedom of Information Act (FOIA) may provide parents and their lawyers some access to school records that may indicate if a school had knowledge of harassment. Also, most states have"Open Meetings Acts" which give the public access to public institution’s proceedings. Such records can be used in a libel or slander case if the information indicates that the school has knowledge that a student’s reputation has been harmed.Still, libel and slander can be challenging to prove in a California court. And if the bullying took place at a private institution, the FOIA and Open Meetings Act may not be helpful at all.

If school administrators, teachers, and school boards ignore bullying, will they take action if litigation is threatened? Perhaps. Many parents would like to believe that protecting children is enough incentivefor school boards to prevent bullying but it has proven, time and again, not to be. For many schools, maybe the only way of getting more protection for children is through the threat of litigation. For too many young people, however, lawsuits arise after the damage is done. Can more be done to prevent bullying in the first place? 

There may be years of litigation ahead and more tragic stories before a comprehensive and realistic response to bullying is conceived. Bullying may continue to be rich territory for novelists, unfortunately, and the following ideal is difficult to imagine: outcasts are no longer treated as inhuman and bullying is completely eradicated.Until that becomes the norm, too many children will continue to suffer in silence. 




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