Discriminatory harassment and bullying: a definitional sticky wicket? | Corona, CA

Bullying in the news

Part of the confusion arises from the word’s increased popularity and the public’s tendency (fueled by the media) to apply it too broadly. This is what Emily Bazelon, senior Slate legal editor and author of Sticks and Stones, argued in a New York Times op-ed in March: “(The word) is being overused — expanding, accordion-like to encompass both appalling violence or harassment and a few mean words.   The misdiagnosis of bullying is making the real but limited problem seem impossible to solve. If every act of aggression counts as bullying, how can we stop it?”

In a later column in Pyschology Today (March 31), Bazelon drew a distinction between the overused definition of “bullying,” on the one hand, and the consistently clear definition of “discriminatory harassment” under federal discrimination laws. She urged care in “distinguishing discriminatory harassment from other kinds of bullying. In the case of discriminatory harassment (based on race, disability, sex, etc.), the law is clear and so are the definitions. The federal Department of Education wrote a letter to schools reminding them of their obligations in 2010, and it sets out clear guidelines for shielding students from bullying that’s based on what’s really discrimination.”

So, according to Bazelon, the definition of bullying has been abused, but the definition of discriminatory harassment is clear and always has been. This requires some deconstruction.

The standard definition of “bullying” among educators and psychologists comes not from the law but from a Swedish psychologist, Dan Olweus, according to Bazelon. While researching aggression among youth during the 1960s, Olweus identified a whole range of cruel behaviors but found a particularly wounding form of aggression he labeled “bullying.” This behavior had three basic elements: verbal or physical aggression; repetition over time; and a power differential.

“A onetime episode of meanness or violence could be bad in the moment, but it was the repetition and the power imbalance that were most often associated with lasting, scarring impact. Bullying, as Olweus defined it, was the behavior that constituted real abuse in the eyes of the children themselves: a serious rupture in their lives with potentially devastating consequences,” Bazelon wrote.

California law does not contain a definition of prohibited “bullying” conduct, except to the extent that it outlines school findings necessary for the most severe disciplinary consequences, as stated in Education Code section 48900(r). In order to suspend or recommend expulsion, a school must find “bullying” that fits these requirements:

“Severe or pervasive physical or verbal acts or conduct, including communications made in writing or by means of an electronic act … directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following:

(A) Placing a reasonable pupil or pupils in fear of harm to that pupil’s or those pupils’ person or property.
(B) Causing a reasonable pupil to experience a substantially detrimental effect on his or her physical or mental health.
(C) Causing a reasonable pupil to experience substantial interference with his or her academic performance.
(D) Causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services, activities or privileges provided by a school.”

Federal law does not directly address bullying. However, both California and federal law prohibit “harassment” of students based on legally protected attributes (race, sex, disability, etc.). “Harassment” is defined as conduct that creates a “hostile environment” that limits students from participating or benefiting from school activities or services and can include conduct that might also be considered “bullying” under the Olweus or other definitions.

California Education Code section 48900.4 provides that the school may suspend or recommend for expulsion students in grades 4 to 12 when the school has determined that “the pupil has intentionally engaged in harassment, threats or intimidation, directed against school district personnel or pupils, that is sufficiently severe or pervasive to have the actual and reasonably expected effect of materially disrupting classwork, creating substantial disorder, and invading the rights of either school personnel or pupils by creating an intimidating or hostile educational environment.”

While “harassment” conduct may overlap with what is known as “bullying,” it is not the same as bullying. The concept of bullying is based on a psychological construct designed to identify the most emotionally harmful behavior; by contrast, harassment is a legal construct designed to protect certain students from discrimination. Harassment, which may include bullying, may also include conduct outside the standard definition of bullying; for example, harassment under federal law does not need to be directed at a specific target, is not necessarily motivated by intent to harm and is not always repeated.

The preceding is a recent story posted on the website Palo Alto Online dated June 14,  2013.  Use this link to read the story in its entirety.

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