Do Anti-Bullying Laws Really Make Things Worse?
The Pothole of Liability (as showcased in 13 Reasons Why, season 2).
Posted Aug 09, 2018
Once again, Izzy Kalman is taking us to task for school-based responses to bullying. Using the popular book/Netflix series 13 Reasons Why as a springboard, Kalman’s latest offering showcases a fictitious town (Crestmont) and its legal drama (developed in the second season plot line, not in Jay Asher’s novel) to illustrate the strife, divisiveness, and financial devastation that that will follow in the wake of mistakenly placing responsibility (for policing the social jostling that is part and parcel of adolescent identity construction) on schools.
Kalman warns that bullying laws codify presumptive capacities and outcomes of school anti-bullying initiatives, and in so doing make (devastating) lawsuits possible. Legal liability will wreak havoc (especially in small communities) because expectations linked to school programming or behavior codes are completely unrealistic.
While it is perfectly legitimate—even savvy—to use a popular cultural narrative as a springboard for critique, that narrative cannot be used as the primary referent for conclusions. Cautionary tales, no matter how prescient their insights may seem, cannot be substituted for data: assessments, interviews, and actual court cases.
Even in the absence of these, it is worth taking a closer look at Kalman’s prognostications.
In December of 2015, I wrote a post entitled “Should Bullying Be Made Illegal?” In it, I cited a new city ordinance in Plover, Wisconsin, that looked to hold parents liable for repeat offenders.
An ordinance, not a criminal law. Holding parents, rather than the school, responsible (and gradually increasing their liability through higher fines, community-service, and jail-time).
Because I highlighted Plover’s ordinance in that first blog, it seemed fitting to reach out to Plover’s Chief of Police, Dan Ault, (who authored the ordinance) and see how it is faring.
Ault was generous with his time, explaining the need for the community as a whole to respond to bullying—and in particular for parents, the primary agents of socialization, to be involved when there is an accusation of socially aggressive behavior.
What Ault told me next was surprising: "Plover’s ordinance had not been enacted in conjunction with the local school." Never mind that suits could not be aimed at schools. Schools were not even co-partners in this legislation. Rather, it has been a community response, one that looked to incentivize parents to continue to be involved in their child’s lives (and even to offer those parents the backing and support of the community in their efforts).
When I pressed him about the success of this program, Ault told me that there have been no citations issued since this ordinance was passed in 2015.
And no negative pushback from the community. “Zero negative consequences.”
Ault then went on to tell me that in addition to an ordinance that puts primary responsibility with guardians, his former community (Oconto Wisconsin) subsidized a multi-layered mentorship program that partners adults (e.g. city employees), successful students, and young people showing early warning signs of being troubled (for example, absenteeism). This program has also been successful.
Granted, Plover is a town of less than 13,000 people, a town small enough to hold values and definitions that are unambiguous enough to support such an ordinance. But Kalman’s purported concern is the way that the criminalization of bullying will rip apart a small town. Contrary to this prognostication, small towns seem capable of community responses beyond those of larger cities—responses that may not only preclude legal action, but integrate citizens around issues that contribute to bullying. Plover (and other cities) have put parents and community resources behind proactively addressing troublesome behavior rather than settling responsibility on schools (thereby positioning them to be liable for negligence). And perhaps this positive example, which highlights the potential of communal bonds rather than the fictive collapse of social relationships, should at least be mentioned as an alternative.
This is not to say Kalman’s observations should simply be dismissed out of hand. Season Two works as a cautionary tale, but does not warrant the conclusions Kalman holds up. Data might substantiate his claims, and/or prompt further questions:
- On what basis are bullying programs assessed, and what are their results telling us?
- Are laws and legislation in sync with demonstrable anti-bullying outcomes, and with parties given responsibility for those outcomes?
- Is it realistic to expect schools to counter off-campus norms, such as those promulgated in video-games like Vtech Rampage or Active Shooter?
- Is it realistic to expect our children to know how to negotiate strong social currents (or the emotional allure video games) when we don’t mandate social emotional learning alongside of swimming lessons, foreign languages, advanced maths, and defensive driving?
- Is it realistic to expect that bullying lawsuits (especially in the face of suicide) are anything less than normal, even expected (and culturally mandated) in our litigious "blame-culture"? (Terence Centner has argued that our legal system functions less like a social contract than "like a lottery: File a lawsuit and hope you are a winner. You may hit the jackpot and win a huge amount of money…Millions of dollars are waiting for the lucky, successful plaintiff”). In the context of 13 Reasons Why, Hannah Baker’s mother claims that they "owe it to Hannah" to sue. (Read: “the larger the settlement, the more ‘meaningful’ Hannah’s death?" Or, "the larger the monetary award, the less culpability her parents feel"?)
It is not Kalman’s questions so much as his scolding, grounded in fiction, that is problematic. We are still very much in the process of figuring it all out, and right now one of our relatively untapped resources ("weapons"?) are the young people who have themselves been affected by school violence.
Who better to reach young people than young people?
Who better to know “what more could be done” and work to affect change? (Where are Kalman’s pro-active musings on how 13 Reasons Why’s protagonist, Clay, has the potential to meaningfully incentivize bystanders?)
Dissatisfaction with school-based liability for bullying is, I am sure, shared by many teachers and principals. But this frustration can be productively bent to fostering ideas and creating partnerships around alternative solutions. Showcase Plover’s ordinances so that other small communities might work out similar responses, work to pass laws that cap financial liability, volley for additional school and community support (which will be more cost effective than paying out multi-million dollar law suits to a handful of plaintiffs), and finally, build programming around neurological research that provides crucial insights into the developing adolescent brain: “Early maturation of certain brain regions responsive to reward (e.g. subcortical brain regions) and later maturation of brain regions involved in thoughtful, effortful control of behavior (e.g. prefrontal cortex) is thought to underlie enhanced adolescent reward seeking, exploration and risk-taking.” (Stephanie Burnett Heyes and Chii Fen Hiu)
Bureaucracy is cumbersome, especially in large, heterogeneous, litigious communities. Schools are ground zero for bullying, so locating anti-bullying policies within them makes sense. Difficulties in implementing new norms will inevitably emerge, and shifts will be made accordingly. Perhaps one of those shifts will away from the criminalization of bullying, and from school liability. Certainly there are problems with this formula, but data suggest that the problems are somewhat different than the ones driving season two of 13 Reasons Why.
Centner, Terence J. "America's Blame Culture: Pointing Fingers and Shunning Restitution."
Burnett, Stephanie and Heyes and Chii Fen Hiu, "The Adolescent Brain: Vulnerability and Opportunity."