Commentary on Dane White et al., “An Analysis of Anti-Bullying Laws in the United States”

For decades researchers have called attention to the problem of bullying among children and adolescents in school.Reference Olweus, Pepler and Rubin ¹ Starting in 1999, states began responding to this problem by promulgating anti-bullying laws.Reference Ramirez ² Although anti-bullying laws now exist in every state and the District of Columbia, a comprehensive review of those law has not been conducted in nearly ten years. White et al., have provided that update.Reference White ³ Their work is significant on a number of fronts. First, their work offers a taxonomy of the key components of current anti-bullying laws, including the laws’ definitions and requirements. Given that nearly three-quarters of states have amended their anti-bullying laws since 2018, this taxonomy alone provides researchers, policy makers, and practitioners with useful guidance about what is — and is not — required of schools and what protections are — and are not — afforded students against bullying in school. ⁴

Among other things, White et al. find and highlight that more than half of the states’ anti-bullying laws offer protections for certain enumerated groups of students. They also note that the inclusion of these group-specific protections are “associated with particular effectiveness” of the anti-bullying efforts for students in these groups. ⁵ In addition, White et al. note that the requirement in a majority of anti-bullying laws that school staff be trained on bullying and anti-bullying requirements is another of the most effective provisions in these laws for preventing student bullying. ⁶ Making both points is significant because these two findings may be linked. That is, it seems that because a majority of states have these group-specific protections in their anti-bullying laws, and a majority of states’ anti-bullying laws include the requirement that school staff undergo training on anti-bullying law requirements, it is likely that many states’ anti-bullying laws contain both of these requirements. This probable overlap suggests that staff training on student groups that are particularly susceptible to bullying may contribute to the more effective protection from bullying that these groups experience. Although White, et al., do not make findings on this likely overlap in the laws’ provisions, future research could illuminate this point.

Still, for all their good intentions and effects, the anti-bullying laws have limitations, arguably significant limitations. White et al. show that state anti-bullying laws frequently contain many components. ⁷ As Shepherd and Fast found in their study of New Jersey’s anti-bullying law, anti-bullying laws with multiple components are vulnerable to being inconsistently applied.Reference Shepherd and Fast ⁸ Shepherd and Fast identified that school personnel, among others, “provided a proliferation of different interpretations of the law and of the behaviors being targeted by the law.” ⁹ As a result, Shepherd and Fast determined that the laws and the protections in them were applied differently in different schools. ¹⁰ Given the multi-faceted nature of most current anti-bullying laws, current anti-bullying laws may suffer from this inconsistency in implementation.

Another significant limitation of all of the anti-bullying laws is their lack of enforcement mechanisms. White et al. do not identify any enforcement mechanisms in any of the anti-bulling laws. ¹¹ Because these laws lack enforcement mechanisms, if schools fail to follow the anti-bullying laws and protect students from bullying, students have no recourse. Students who have suffered bullying therefore have no means to force their schools to implement these laws or to hold their schools accountable for not implementing them. Consequently, students’ protections under these anti-bullying laws are dependent not just on how schools and school personnel interpret the laws but also on whether schools and school personnel decide to implement some or any of their requirements.

That said, students in certain protected groups may still have recourse in other laws. Civil rights laws such as Title VI, Title IX, and the Americans with Disabilities Act protect students from discrimination, including harassment and bullying, on the basis of race, sex, and disability. ¹² Students in these groups can require schools to protect them against bullying and harassment on the basis of their membership in the protected groups and hold them accountable when they do not. These students can file administrative complaints with the Unites States Departments of Education and Justice. ¹³ They can also file lawsuits. ¹⁴

For students who suffer more generic bullying that is not based on a student’s membership in a protected class, however, these civil rights laws are of little assistance. A student who suffers such bullying with no response from their school has limited, at best, ability to hold schools to account. At most, a student who suffers generic bullying can file a lawsuit based on an intentional tort claim, such as battery, or negligence claim. These tort claims, though, are hard to bring and have had limited success.Reference Weddle ¹⁵

Thus, the work of White et al. reinforces the need to for both further research on what makes anti-bullying laws effective and how they can still be strengthened to better prevent and protect against bullying. Their work also highlights the need for policymakers and advocates to consider how to make anti-bulling laws that can also be amended and improved to these ends.