Wednesday, September 21, 2011

Article Critiques Massachusetts's Anti-Bullying Statute

New England School of Law professor and Title IX lawyer Wendy Murphy recently published an article in the New England Journal of Crime and Criminal Confinement that analyzes and critiques anti-bullying statute that Massachusetts enacted last year. The statute requires school districts to enact bullying prevention policies that include “clear procedures for students, staff, parents, guardians, and others to report bullying or retaliation; . . . clear procedures for promptly responding to and investigating reports of bullying or retaliation; . . . the range of disciplinary actions that may be taken against a perpetrator for bullying or retaliation; . . . [and] a provision that a student who knowingly makes a false accusation of bullying or retaliation shall be subject to disciplinary action." School officials are also required to report any instance of bullying to the principal, who is then required to investigate the claim, report to law enforcement if the criminal in nature, take disciplinary action against the perpetrator, and notify the parents of all students involved.

According to Murphy, the law lacks meaningful enforcement. Specifically, by precluding a private right of action for victims, the law insulates school officials from legal action when they fail to comply with the law. At the same time, students have the right to sue school officials for discipline that curtails their constitutional right to free speech -- which may cover verbal harassment and cyberbullying. Thus, school officials are have stronger incentive to over-protect bullies to avoid the risk of liability under the First Amendment.

She also criticizes the statute for failing to address the overlap between bullying and civil rights. This omission tends to frame bullying and harassment as separate categories of conduct, which may steer victims of bullying from pursuing remedies under civil rights laws like Title IX. She argues that, in addition to amending the statute to provide a remedy against school officials for failing to address bullying in the manner required by law, the legislature should also incorporate "a clear cross-reference to federal and state civil rights laws in anti-bullying statutes."

Citation: Wendy Murphy, Sexual Harassment and Title IX: What's Bullying Got to Do With It?, 37 New England J. of Crime and Criminal Confinement 305 (2011).