Increase in Bullying Awareness Leads to Increase in Litigation over Bullying

I’ve written before about bullying and the law before, generally in the context of knee-jerk criminalization of conduct, which modern society so often sees as a way to deal with (or convince themselves that they’ve dealt with) a major social problem. Usually, the criminalized conduct is bad, and should be strongly discouraged. However, I often can’t help but come to the conclusion that using criminal law as the go-to solution is often counter-productive.

While I recognize that bullying of children and adolescents, especially when it’s motivated by the victim’s actual or perceived sexual orientation (which can already be a significant source of confusion and insecurity for many young people), is a huge problem, I question whether criminal law is the best way to deal with it.

However, I do think that the civil justice system is sometimes a good way to deal with these problems, because judges have more flexibility in crafting remedies, and it’s easier to hold accountable those who are ultimately responsible. After all, criminal law allows the individual bullies to be punished, but it’s highly ineffective at addressing the root of the problem: a culture in public schools that allows bullying to thrive.

An article in USA Today notes that civil lawsuits regarding bullying are on the rise.

This is due, in large part, to a greater awareness of the problem of bullying, and the long-term psychological impact it can have on children and adolescents. I’m sure there are some people who are using the recent media attention to the bullying problem as a way to try and cash in on the latest “lawsuit lottery,” but the extent of this phenomenon tends to be overblown, and it is, in fact, very rare. And most lawsuits that are filed by people hoping for nothing more than a quick payday don’t make it very far.

These lawsuits (properly, I believe) are largely directed against the schools where the bullying takes place.

It seems that many public schools still don’t know how to deal with the problem. And while they may have “zero-tolerance” polices about bullying on the books, they are sometimes not enforced, and teachers have little training on how to deal with the problem.

While criminally punishing bullies might be a slight deterrence, providing schools with an incentive (avoiding costly lawsuits) to really address the problem would probably prove far more effective in the long run. This is due in large part to the fact that judges in civil cases have more flexibility in redressing legal wrongs.

By suing schools for failing to take adequate measures to prevent bullying, plaintiffs can strongly incentivize schools to take appropriate measures, simply to avoid lawsuits. Furthermore, courts can impose injunctions, compelling schools to take specific steps to prevent bullying.

This has the potential to be particularly effective when you consider the relatively recent development of the so-called “structural injunction.” This is a court order that compels a public entity (such as a public school) to significantly change the way it operates. For example, court-ordered school desegregation is a structural injunction. It’s not hard to imagine that state or federal courts, if under sufficient pressure, might start imposing structural injunctions requiring schools to take concrete steps to address the problem of bullying, including training staff on how to spot the problem, and disciplining school employees who choose to look the other way.

Obviously, this puts a court in a somewhat awkward situation of directly overseeing the operations of a non-judicial public entity. Courts are not perfectly suited to this task and, historically, it’s not what the court system was designed for. However, if you look at the purpose of the court system, at its most basic level, it makes sense: the court system exists to ensure that legal wrongs have a legal remedy.

In that context, overseeing reforms to address bullying in public schools is part of a court’s purview.

Obviously, I don’t think that lawsuits, per se, are a good thing. They’re often costly and time-consuming. However, I do recognize that they are sometimes a good way (if not the only way) to address a problem in a public institution. This is especially the case when state legislatures refuse to act, or, worse yet, “act” by passing an ill-conceived criminal statute that will do little to address the problem, rather than taking effective, but more difficult steps that might involve things like properly funding schools so that teachers can be properly trained in dealing with bullying.