Court Defines Bullying
“I know it when I see it.” Most of us can recognize that quote from, Jacobellius v. Ohio, 378 U.S. 184 (1964), wherein the Supreme Court struggled admirably to define obscenity, and then kind of gave up in the end. That line works much better when we attempt to define bullying.
We know it when we experience it – that’s for sure. It hurts, physically and/or emotionally. Something of value is lost. But what is lost – and can we sue someone for redress?
In the case of T.K. v. New York City Department of Education, 799 F. Supp. 2nd 289. (2011), which we have been discussing (see Girl Whips Gotham Schools), the court’s opinion put some borders on the issue.
Just how seriously does the court view the issue of bullying? Judge Weinstein, in his opinion, states:
“Were bullying characterized as a disease affecting America’s youth, a team from the Center for Disease Control charged with investigating epidemics would have been called in to study it.”
In assessing the plaintiff’s cause, the opinion works to define bullying. It involves a “real or perceived imbalance of power.” It involves “inflicting or attempting to inflict discomfort upon another.” The opinion draws on authorities and studies to make the following points:
- Indirect, psychological bullying, in the form of exclusion, is less visible, but “not less corrosive.”
- Children who struggle academically are more apt to be victims or both victims and aggressors.
- Once a child is labeled a victim, his status within the group drops.
- Over time, the “field of children” who are victimized narrows. Those labeled as victims are caught up in a
vicious cycle. “In particular, girls who are unable to develop supportive peer relationships are at an increased risk for persistent ostracism and rejection.”
- Youth who are victimized are likely marginalized from the mainstream peer group, lacking access to “prosocial” peers who provide role models of appropriate social skills, and also protection against bullies.
Cyberbullying is distinguished from traditional bullying:
- The bullies can remain anonymous, freeing them from constraints.
- The “viral” phenomenon allows for spiraling damage, subjecting the victim to the marginalization noted above.
- The bully never sees the pain he inflicts – he is emotionally free to proceed with the abuse.
- Parents and teachers do not generally have the technical know-how to monitor the actions.
The opinion in this case reeks of compassion and angst over the great injustices that multiply, unimpeded, before our eyes. In the end, legal remedies are limited, but it is clear that our courts are prepared to find “legal responsibility” in school settings.
This court searched the language and intent of state legislation guaranteeing students a FAPE – free, appropriate public education. It found that the state’s school systems must observe the intent and letter of controlling legislation. It put forth guidelines to insure that incidents of bullying are reported to New York’s DOE. It ruled that the victim in this case, T.K., is eligible to pursue her case against the schools, seeking monetary reimbursement for private schooling necessitated by their failure to provide FAPE. (we have no further record of this case going forward – settlement by the school district is a possibility.)
T.K.’s fight was a good one. It marked progress in the ongoing effort to create a more just society, where every child gets equal access to a free, appropriate public education. Unchecked bullying and harassment can amount to a denial of FAPE.
Bullying Decoded is a heart-to-heart discussion on bullying and what can be done about it. Get the book and join author Ed Kaspar in a conversation on the legal and psychological issues behind bullying.
Buy the Book
Legal Issues of Bullying
- Bullying is Incompatible with American Character
- Court Defines Bullying
- When School Systems Turn a Blind Eye to Bullying
- Seeking Damages Part 2 of 2: Four Elements to Claim IIED
- Seeking Damages Part 1 of 2: Intentional Infliction of Emotional Distress
Psychology of Bullying
- Bullying Psychology – 3 Ego States, Parent-Adult-Child (PAC)
- Interview with a Former Bully, Experiments with Power
- Don’t Gaslight Yourself
- Transactional Analysis Defined
- Encouraging a Bully in the Family