Gregory C. Keating

What’s ‘bullying’?

The state’s new law is so vague that it has led to unintended consequences

By Gregory C. Keating
December 1, 2010

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THE STATE’S new anti-bullying law is widely heralded as the most aggressive in the country. It criminalizes bullying and cyber-bullying by students, and requires schools to ferret out and respond to such incidents, many of which take place outside of school.

Unfortunately, in my experience as a former teacher, a parent of three children, and an attorney representing schools, the law, while well-intended, is fraught with problems and has already led to unintended and unfortunate consequences.

The most acute is how it impacts the critical relationship between schools and parents. The statute does not put any responsibility on parents to stop bullying. Worse, rather than foster a shared approach to stop such behavior, the statute actually undermines any meaningful communication between parents and schools.

Faced with the specter of criminal charges against their children if their behavior is deemed to constitute bullying, parents have shown a reluctance to cooperate fully with schools, in some instances choosing to “lawyer up’’ and stop all communication. Ideally, parents would work with schools to help educate students about why bullying is wrong and step in immediately to help stop any bullying activities involving their children.

Instead, the law has created an adversarial system in which school officials, who must identify and report bullying, assume the role of district attorney and parents that of advocates for accused students.

In some schools, the anti-bullying statute is already fueling vexatious litigation. Several cases have involved attempts by parents to use the anti-bullying statute as leverage to stop schools from expelling students for academic reasons.

And what about schools themselves? The law expressly mandates that school officials make complicated legal determinations about whether a student’s conduct is or is not bullying. Having shifted the burden to schools to decide whether certain conduct is unlawful, one would at least expect clear guidance as to what constitutes “bullying.’’

But the opposite is true. Not only is the statute’s definition of “bullying’’ incredibly broad, it is replete with vague and interpretive language. For example, the statute rightfully defines bullying to include any act which causes physical or emotional harm. But it also goes on to define bullying as an action which “infringes on the rights of victims at school’’ or “materially and substantially disrupts the education process or the orderly operation of a school.’’ How exactly is a school official to decide if actions “infringe’’ on “rights’’ of others at school? Do we really want to invite claims of bullying for each and every claimed “disruption’’ of the “educational process’’?

The law even goes so far as to mandate that schools monitor and respond to bullying that takes place outside of school, often through social media over which schools have no control. Should schools really shoulder the burden for monitoring and reporting this type of conduct? Is this not more properly in the purview of parents?

Bullying is a significant problem and must be stopped. But the solution does not lie in a criminal statute with an unworkably broad definition of bullying that places the burden of compliance squarely on schools and students. Instead, we need clear and narrowly tailored guidance on what constitutes bullying and an acknowledgement that all members of the community need to play a role in standing up to bullying in our schools.

Gregory C. Keating is an attorney who practices in Boston.