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Criminalizing Bullying Discourages Reporting, Groups Say

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Stringent laws designed to punish or criminalize bullying are usually accompanied by statements from public officials that the new policies will help make schools safer for children by matching the serious, often overlooked issue of bullying with an equally serious response. But such "legislative knee-jerk" reactions may actually have the opposite effect, making victims less likely to report incidents of bullying and creating unnecessary harm for bullies in the process, a group of school climate and youth advocacy groups have said.

That's because racheting up the consequences of hurtful or abusive speech to an immediate school suspension or a criminal citation removes valuable, intermediate steps from the process. Knowing the immediate severity of the punishment for bullies, victims might hesitate to report them, and school officials might be more likely to look the other way, the groups, including the National School Climate Center, said in a brief filed in a New York court case related to a local statute that criminalizes cyberbullying.

"Unfortunately, only one in three bullied youth has reported being bullied to an adult. When the severity of consequences is greatly disproportional to the severity of an incident, it can discourage reporting by students and encourage inaction and dismissal by teachers and school officials, who lack ability to address cyberbullying outside the bounds of the law," said the amici curiae brief, which was also filed by Advocates for Children of New York, Empire State Pride Agenda, the Robert F. Kennedy Center for Justice and Human Rights, and the Student Press Law Center.

The New York Court of Appeals last week struck down the law in question—an Albany County law that prohibited any act of electronic communication that disseminates "embarrassing or sexually explicit photographs;" "private, personal, false or sexual information;" or "hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person." The court said the law was written too broadly, threatening the free speech rights of citizens.

While many groups, including New York's ACLU branch, praised the ruling, I have heard some rumblings from readers who are concerned that removing harsher penalties takes a valuable tool away from educators. A reader comment from my post on the court's decision argued that it is wrong to preserve free speech for bullies.

But there are actions short of criminalizing bullying that can more effectively address the issue for all students involved, the groups who filed the brief in the Albany County case argued. They extend common criticisms of zero-tolerance policies (those that lead to an automatic suspension) to laws that criminalize problematic student behaviors. The brief suggests that, like zero-tolerance policies, criminalizing bullying will be harmful because:

  • Such punishment disproportionately affects students of color, students with disabilities, and LGBT students.
  • Criminalizing student actions will "reinforce and perpetuate the school-to-prison pipeline, putting bullies on the fast track to school dropout and incarceration."
  • "By turning 'bullies' into criminals, children do not learn how to change their behavior."
  • Criminal penalties will no decrease bullying and will "instead cause a less satisfactory school climate for all students."

The groups propose alternative methods to address bullying. For example, the brief suggests school climate reform strategies:

"There are empirically based effective methods for engaging in school climate reform. For example, the National School Climate Center has developed a 'School Climate Improvement Process' that is based on a cyclical and continuous process of 'preparation, evaluation, understanding the evaluation findings and action planning, implementing the action plan, and re-evaluation, and continuing the cycle of improvement efforts.'

School climate reform is an effective alternative to the criminalization of youth who cyberbully. Research has shown that when students feel engaged, supported, and safe, they are less likely to misbehave. Having a positive school climate results in higher levels of student engagement and self-discipline, fewer incidences of school violence, and increased staff and student feelings of safety, among other positive outcomes. The net result is that a positive school climate decreases the need for disciplinary actions. Creating a positive school climate will, to a large extent, prevent the need for punishment by decreasing incidences of cyberbullying before they occur."

The brief also calls for the implementation of restorative practices, an approach that "shifts the dialogue away from punishment and blame and towards learning and healing. It focuses on forgiveness, responsibility, community participation, and respectful dialogue." You can read more about restorative practices in this Education Week story.

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