You’re on Your Own, Kid... But You Shouldn’t Be

Abstract

This article addresses the question: Should courts recognize a duty on the part of schools to implement proven strategies to reduce and prevent bullying? Nothing influences the answer to that question as understanding the nature of bullying in schools. Once understood, bullying seems less a rite of passage or builder of character and more like child abuse perpetuated by peers. The realization that many school children suffer such abuse that inflicts long-lasting and severe damage shifts the analysis from whether the problem is serious enough for courts to engage to how they might most effectively engage it. This article addresses what educational researchers mean by “bullying in schools,” its effects as well as what has long been known about proven strategies to reduce bullying. It then articulates two bases upon which courts might act to impose a duty on school officials to reduce the problem and protect students. The first theory is based on the second prong of the Tinker standard governing private student speech. The “Right of other students to be secure and to be let alone” is perfectly suited to recognition of a constitutional right of reasonable protection from peer-on-peer abuse in public schools. The second theory is based on a seldom cited comment to §320 of the Restatement of Torts where the duty of school officials to prevent bullying has been recognized for seventy years. The article concludes that both federal constitutional law and state common law require what common sense and professional competence plainly require – that school officials become serious and proactive against bullying in their schools and use proven methods for doing so.

Keywords: bullying, public schools, strategies, duty to prevent bullying, Tinker, private student speech, constitutional right, school children

JEL Classification: I20, I28, K10, K19, K30, K42