Bullying: How To Fight Back (Legally)

by Silvana Raso

When a parent sends his or her child to school, the assumption is made they are sendingthem into an environment where the child's life will be enhanced through educationBullies and where they will be protected from harm.  However, for a child who is being bullied in school, school is where they are alone and under siege.  

The most troubling aspect of such a situation is that parents are often unaware because they miss the warning signs.  In order to legally protect a child from being bullied in school, a parent must first learn to recognize when such bullying is happening.  

Parents cannot rely on the school to recognize when bullying is happening.  Surprisingly, schools fail to recognize when bullying is happening because children who hurt other children are often popular with adults.  These high social status children often bully other children of slightly lower social status.  

It is difficult for teachers and parents to believe that an otherwise high performing and/or popular child could hurt his or her peers.  Therefore, even if the school boasts a "zero tolerance" approach to address bullying, the school typically fails to deal with bullying because teachers and school administrators fail to administer harsh consequences to students who are popular, even if they are bullying others.  

When analyzing failed anti-bullying interventions, experts rate the lack of teacher "buy-in" is the major barrier to successful implementation of any anti-bullying program.  Therefore, the lesson to be learned is that even if a school speaks highly of its "zero tolerance" policy that may not be an indication that it is cognizant of the bullying that is taking place within the school.

Unfortunately, it is also common for the bully to also be a friend of the child he or she is bullying.  This factor makes it more difficult for schools and parents alike to recognize when bullying is happening.  Parents should be aware that certain children are at risk for being bullied.  For example, students who are in the racial minority at a school are at a higher risk of being bullied than those who are in the racial majority.  

Bullying among boys is commonly focused on disparities in physical size, strength and athleticism. Boys on the positive side of the imbalance tend to bully boys with less of those attributes.  Children who have physical or mental disabilities similarly are at a greater risk of being bullied.  These factors are not an indicator as to whether a child will be bullied, however, it is something parents should keep in mind if they are questioning whether or not their child is being bullied.

The obvious warning signs of a child who is being bullied are when a child returns home from school bearing physical evidence of an injury.  However, not all bullying situations result in such obvious proof.  For example, when bullying is verbal, a parent may not see the signs.  One indicator that both schools and parents should be aware of can be determined by simply talking to the child's school nurse.

Frequent visits to the school nurse, even if the complaints are very mild, are indicators that the child is seeking attention because of a negative emotional state related to conditions at school or treatment received by the child from peers while in school.  In addition, subtle statements made by a child questioning their own appearance or their clothing can be indicators that the child is being made fun of by others because of the way he or she dresses or acts.  These signs can give parents the information necessary to address this issue with the school.

When parents are faced with this situation, the reaction of the school is often not what it should be.  Most commonly, schools tend to minimize the problem by attributing the problem to the family when in reality, the cause of the problem is attributable to the school culture and climate.  The school may accuse the child of being too sensitive.  

In the absence of adequate training in the school, a commonly held attitude by school staff is that bullying can effectively be handled by the child "forgetting" what has occurred.  However, bullying does not end because the victim attempts to ignore the bullying. Such advice also results in the victim blaming themselves. Advising victims to forget about it should not be expected because it sets an impossible and highly frustrating standard for a victimized child.  

Another ill-advised method sometimes used by schools to deal with bullying is mediation between the children and between the parents of the children.  Mediation is not a solution since mediation assumes that there is a balance of power between the parties.  Since bullying is a situation where there is an imbalance of power (the bully having the upper hand), encouraging more contact between the bully and victim is not only detrimental, it does not lead to a solution.  Schools may try to encourage mediation between the parents of the bully and the victim which, again, is not helpful since it reflects the fact that the school views the problem as one between the adults and not one where a child is being victimized by another.  

The approach a school must take when dealing with a complaint of bullying is to investigate the incident.  The school should go beyond the incident itself and seek understanding into the relationship in which the incident occurred, as well as a review of the school culture in which such an incident occurred.  That is, if the child who has been victimized has characteristics which confirm his or her vulnerability to bullying, the school is responsible for assessing whether the school culture is protective of children with those vulnerabilities.

The school's attempt to "help" the victim of a bully by removing the victim from the school setting is also inappropriate.  It is the bully who should be removed from the school setting and not the child.  Similarly, the school's attempt to deal with a problem by advising the bully to not have any contact with the victim also furthers the bullying since it causes the victim to be ostracized by the bully who is probably someone of high social status within the school community.  In cases of bullying, it is never appropriate for students to work out the differences by themselves.  When there is an imbalance of power and conflict, the "solution" happens on terms dictated by the child with more power, the bully.  

Knowing the wrong ways to deal with bullying is important because it lets the parents know whether they should take legal measures to protect their child when the school is incapable of doing so. If the school suggests any of the above methods for dealing with bullying, the parent should retain counsel to contact the school and advise that they are failing to protect their child's right to an education.  If the school is failing to take the appropriate measures by removing the bully from the school setting, they are denying the student who is being victimized the right to an education.

Parents should be aware that simply because a school boasts of a "zero tolerance" policy or claims to have implemented anti-bullying measures in school, does not mean that it is doing the right thing when it is confronted with a bullying situation.  Parents should learn to recognize the subtle signs of bullying and then learn to judge a school's response to those events.  A school's reaction to a bullying event simply because it has one, does not mean that it is appropriate or beneficial to the victim.  

Silvana Raso, Head of the Family Law Practice at Schepisi & McLaughlin, P.A.

Published September 2011