[T]hat’s the the problem with the new anti-bullying law: It’s all about opinion. The determination of what constitutes hazing or bullying is subjective, and so are the decisions about the consequences. In reaching those subjective conclusions, school officials are both judge and prosecutor.
In other words, Vennochi is arguing that the law is too vague in two important ways: First, it allows each school to define what constitutes hazing and bullying, and, second, it grants schools too much leeway in setting their own punishments and deciding if and when law enforcement officials are brought in to handle the matter.
Vennochi's column elicited a response from Wendy Murphy, a former prosecutor who teaches at New England Law, Boston and has written about similar topics for The Daily Beast. In a letter to the editor, Murphy writes that Vennochi "is right that the new anti-bullying law won’t work, but it isn’t because the definition of bullying doesn’t lend itself to simple black-and-white analysis." Instead, Murphy argues, bullying persists in Massachusetts schools because the law doesn't provide punishments for schools that fail to stop it:
The real problem is that the new law lacks enforcement mechanisms, which means that if school officials continue to do nothing, there will be no repercussions. Because doing nothing remains the path of least resistance, schools will continue to ignore victims such as Phoebe Prince because the only exposure for the school is a potential lawsuit from the bullies’ parents for imposing so-called wrongful discipline.
Murphy's argument — that the law should do more to hold schools legally accountable for bullying — is an interesting, controversial one. If her ideas were written into law, would we see law enforcement leading school principals away from schools in handcuffs? Or schools facing millions of dollars in fines and lawyers' fees? In an email, I asked if she would flesh out her argument a bit. Here's part of her response:
Ideally, there should be sufficient sanctions in place to offset the incentive schools currently experience related to fear of lawsuits by bullies. This could be as simple as codifying a narrow window of liability for schools that fail to take prompt and effective steps to stop bullying when a report is made. Schools are currently immune from such lawsuits, under the "Public Duty Rule", unless they "originally cause" the harm. This is a standard nearly impossible to meet which is why schools don't worry about liability for failing to protect the victim. The lead case in this area, Brum v. Town of Dartmouth, involved a child stabbed to death in front of his classmates during class. His parents sued and the claims were dismissed on the grounds school officials did not "originally cause" the child's death. School officials in that case knew the child was at risk and one official literally directed the killers to the child's classroom when they entered the building. This was not enough to show "original causation" and the lawsuit was dismissed.
Schools should not be gambling — or worse — factoring into the cost of doing business — the idea that they can better afford to have no liability and avoid protecting victims in general. It's cheaper, at the moment, for schools to pay a few big claims for those rare cases when a Plaintiff can connect civil rights harms and serious enough injury to merit a lawsuit where an attorney will be willing to file because the damages will be substantial.
Vennochi doesn't think this makes sense. She responds:
Murphy suggests "codifying a narrow window of liability for schools that fail to take prompt and effective steps to stop bullying when a report is made." That sounds like legalese for my initial contention: that the law, as currently written, is too vague.
No thinking, caring adult condones acts that hurt or humiliate any child from elementary to high school age. Certainly, no one wants to see one more young person driven to suicide because of the cruelty of their peers.
Principals, teachers and all school employees should be alert to bullying and hazing, and do everything in their power to stop it. That is the underlying mission of the state's new anti-bullying law. But does reducing the effort to one that is completely adversarial - as Murphy recommends - really help the cause? She wants a world that puts parents on
one side, geared up to sue, and school personnel on the other, fearing "repercussions".
That sounds familiar, doesn't it? It's another variation of the culture of bullying that Massachusetts is trying to end.