frontier torts bullying final

Phoebe Prince andBeyond:

Bullying in the U.S.

Frontier TortsSection 6, Professor Jon Hanson

Internal Situationists

Relevant Actors:o The Bullyo The VictimoBystanders

“There is no question that some of the teenagers facing criminal charges treated Phoebe cruelly. But not all of them did. And it’s hard to see how any of the kids going to trial this fall ever could have anticipated the consequences of their actions... Should we send teenagers to prison for being nasty to one another? Is it really fair to lay the burden of Phoebe’s suicide on these kids?” –Emily Bazelon

The Bully

o The Victimo Bystanders

6 Risk Factors:

1.Low parental involvement

2.Exposure to violence in media

3.Prior physical victimization

4.Previous fights5.Bias towards hostility6.Gender

The Bully

o The Victimo Bystanders

Teens exhibiting aggressive conduct

disorder showed increased activity in areas of the brain linked with feeling

rewarded (the amygdala and

ventral striatum) in response to seeing

others in pain

The Online Disinhibition Effect

The Bully

o The Victimo s

Ya we kick it with the true irish not the gross slutter poser ones :)

Know what I hate? Irish sluts

Dissociative Anonymity Invisibility Asynchronicity Solipsistic Introjection Dissociative Imagination Minimizing Authority

John Suler, Ph.D.

o The Bully

The Victim

o BystandersMental Effects of Bullying

- Increased Risk of: Depression Anxiety Chronic Illness- Heightened Stress- Chronic Nightmares- Concentration Deficiencies

“Research with youth and adults shows that negative social

interactions are experienced as particularly stressful. Stress

causes the body to secrete the stress hormone cortisol. Cortisol

impairs immune system functioning, leaving the

individual more vulnerable and less able to combat physical

illnesses.”

Anxiety & Depression

Wendy M. Craig, Queen’s

University

Ann Neary & Stephen Joseph, University of Ulster

Adrienne Nishina, Assistant Professor of Human Development at UC Davis

o The Bully

The Victim

o BystandersBehavioral

Effects of Bullying

- Decreased Academic Performance- Truancy- Increased likelihood to experiment with alcohol

On any given day, an average of 160,000 report staying home

for fear of being bullied.

The students who were rated the most-bullied performed

substantially worse academically than their peers. Projecting the findings on grade-point average across all three years of middle school, a one-point increase on

the four-point bullying scale was associated with a 1.5-point

decrease in GPA for one academic subject

o The Bullyo The Victim

Bystanders

• Studies have shown that bystanders have great influence in reducing bullying

Christina Salmivalli, Marinus Voeten, Elisa Poskiparta, Bystanders Matter: Associations Between Reinforcing, Defending, and

the Frequency of Bullying Behavior in Classrooms, 40(5) JOURNAL OF CLINICAL CHILD & ADOLESCENT PYSCHOLOGY,

668, 668 (2011).

o The Bullyo The Victim

Bystanders

• Social Proof• Groupthink• Bystander Effect

• Social Proof• Groupthink• Bystander Effect

o The Bullyo The Victim

Bystanders

o The Bullyo The Victim

Bystanders

Immoral?

o The Bullyo The Victim

Bystanders

The Situation• The Role of School Officials

• The Bystander Effect• Attribution Through the Lens of Naïve Realism

• The Role of Students• Social Identity Theory• Gender Norms• System Justification Theory

• The Role of Parents• Reinforcing Victimizing or Aggressive Behavior• Noticing Behavior and Acting Appropriately

School Officials• Bystander Effect

School Officials• Attribution Through the Lens of

Naïve Realism

School Officials• Attribution Through the Lens of

Naïve Realism

The Situation• The Role of School Officials

• The Bystander Effect• Attribution Through the Lens of Naïve Realism

• The Role of Students• Social Identity Theory• Gender Norms• System Justification Theory

• The Role of Parents• Reinforcing Victimizing or Aggressive Behavior• Noticing Behavior and Acting Appropriately

Students• Social Identity Theory: “Us” and

“Them”

“us”

“them”

Students• Gender Norms: Slut Labeling

Students• SJT: status quo

The Situation• The Role of School Officials

• The Bystander Effect• Attribution Through the Lens of Naïve Realism

• The Role of Students• Social Identity Theory• Gender Norms• System Justification Theory

• The Role of Parents• Reinforcing Victimizing or Aggressive Behavior• Noticing Behavior and Acting Appropriately

Parents• Reinforcing Victimizing or

Aggressive Behavior

Parents• Noticing Behaviors and Reacting

Appropriately

TORT DOCTRINALISTS

The Phoebe Prince Case: From the Tort Law

Perspective

THE OPTIONS

• Intentional Infliction of Emotional Distress

• Negligence

Problems with NEGLIGENCE

• DUTY– Sovereign Immunity– Foreseeability

What Would a Bullying Tort Look Like?

• Sovereign Immunity– Exception: failure to act would be likely to

subject an identifiable person to imminent harm.

• Foreseeability– “Specific facts have warned authorities

that a particular threat existed and have indicated that action on the part of the school could have prevented injury.”

DUTY

An Economic Model of Bullying

Arun Avva, Jake Jung, Paul Lee

The Basic Model

Payoffs: (Bully, Victim)

BASIC MODEL – NEGLIGENCE – NEGLIGENCE (HIGH DISCOUNTING) – STRICT LIABILITY (HIGH DISCOUNTING)

Negligence Rule

Payoffs: (School, Bully, Victim)

BASIC MODEL – NEGLIGENCE – NEGLIGENCE (HIGH DISCOUNTING) – STRICT LIABILITY (HIGH DISCOUNTING)

Negligence Rule (High Discounting)

Payoffs: (School, Bully, Victim)

BASIC MODEL – NEGLIGENCE – NEGLIGENCE (HIGH DISCOUNTING) – STRICT LIABILITY (HIGH DISCOUNTING)

Strict Liability Rule (High Discounting)

Payoffs: (School, Bully, Victim)

BASIC MODEL – NEGLIGENCE – NEGLIGENCE (HIGH DISCOUNTING) – STRICT LIABILITY (HIGH DISCOUNTING)

CONCLUSIONS Assuming high discounting,

strict liability provides better incentives for the school to actually prevent bullying

However, the model assumes that the policies are mutually exclusive and 100% effective

This model does not take into account liability for the bully

This model does not take into account the family as an actor

BULLYING Policy: State LevelAims: Prevention & Accountability

Aims: Prevention & Accountability

TRENDS in PolicyPrior to 1999 (Columbine), no state had statutes specifically addressing bullying. Analysis of State Bullying Laws and Policies, U.S. Dept. of Education (2011)

A Word About Cyber-bullying

Federal Law is IneffectiveFederal policy exists, but has been entirely ineffective in providing compensation for victims or inspiring school change.• Title IX (gender based)—no relief. Davis v.

Monroe County Board of Education (1999)

• Section 1983 Discrimination—14th amendment (1) Custodial or special relationship theory. (2) State created danger. Snelling v. Fall

Mountain (4th Cir. 1995)

• NCLB—Students may go to a different school.

Variations in State Policy Making

• Legislative Control (25 States)

• State Department of Education Control (4 States)

• Development Mix of Legislative and State Department of Education Control (6 States)

• Local District Discretion and Control (11 States)

Stakeholders in Policy Making

• School Boards• School Administration• Teachers/ Counselors

• Parents• Community groups• Advocacy groups

Community Stakeholders

State Legislature

Education Agencies/

Depts.

Schools & School

Districts

Components in District Policies

KEY COMPONENTS OF BULLYING POLICY

REPORTING

INVESTIGATION

SANCTIONS/PUNISHMENT

PREVENTION?

Why don’t the policies work?

Weddle, 2004 argues:

School Climate

“School Climate” is the key lever.

• School climate, not socioeconomics, race or other factor, is the key predictor of bullying.

Two factors: social control social cohesion

Policy Recommendation: Carrots and Sticks

State policy outlines goals.

If schools implement policies, when bullying occurs, schools are only held to negligence standard unless there is evidence of “wanton” or “willful” disregard.

If schools fail to implement policies, held to strict liability and presumed liable.

Concerns include difficulties monitoring implementation, diverse local community needs, perverse incentives with reporting.

Other concerns?

If schools implement policies, when bullying occurs, schools are only held to a negligence standard unless

there is “wanton” or “willful” disregard.

Weddle, 2004

• Incentivizes school compliance with policy, reporting of bullying, and “fairness.”

If schools implement policies, when bullying occurs, schools are only held to negligence standard unless there is evidence of “wanton” or “willful” disregard.

If schools fail to implement policies, held to strict liability and presumed liable.

Carrots and Sticks Liability

What might a good school policy look like?

Approaches to Bullyingin Massachusetts

Mission Statement• The Revere Public Schools’ Bullying

Prevention and Intervention Plan is a comprehensive approach to addressing bullying, cyberbullying, and retaliation. The RPS is committed to working with students, staff, families, law enforcement agencies, and the community to prevent issues of violence.

Procedures for Reporting:• Anyone, including a parent or guardian, student, or

RPS staff member, can report bullying or retaliation. Reports can be made in writing or orally to the principal or another staff member, or reports may be made anonymously.

• A staff member who witnesses, receives information regarding an incident of bullying, cyberbullying, and/or retaliation, or may suspect a student is a victim of bullying, cyberbullying and/or retaliation, will report immediately to the principal or assistant/vice principal.

Investigation of Complaint

• Before fully investigating the allegations of bullying, cyber-bullying and/or retaliation, the principal or assistant/vice principal will take steps to assess the need to restore a sense of safety to the alleged target and/or to protect the alleged target from possible further incidents.

Responses to Investigation• Notice to another school/district• Notice to law enforcement.• Responses to bully (ex: informing

parents, recommending counseling).• Disciplining the bully• Restoring a sense of safety to the target and others in the community.

Professional Development for Staff

The RPS must provide ongoing professional development to increase the skills of all staff members to prevent, identify, and respond to bullying, cyberbullying, and/or retaliation. The goal of professional development is to establish a common understanding of all of the elements of the districts Anti-Bullying Program.

PREVENTION POLICIESParent Education

and Resources

District-Wide Anti Bullying

Curriculum

“Don’t Pick On Me”(Why People Bully Others)

Middle School Bullying Prevention Curriculum

Guidance CounselorHealth Teacher

Adjustment Counselor

AGENDA

Day 1– Bullying Survey

– Definitions and examples

– Effects of Bullying

AGENDA

Day 2

– Revere Public School System Anti-Harassment Policy

– Equity Coordinator

– “Don’t Pick On Me” Video

– Discussion questions and strategies

AGENDADay 3

–“Don’t Pick On Me” Continue Discussion

Questions –Role Play activities

AGENDADay 4

–Continue with Role Play activities

–Conclusion Answer the essential question

Bullying Survey• DIRECTIONS: Please circle the best

answers to the following questions that apply to you. You may have more than one best answer for some questions.

• Have you ever been bullied?• a. Yes b. No• If you answered yes, how often did

someone bully you?• Occasionally Often

Everyday

DEFINITIONS

Aggressor- Person who habitually isbullying, cyberbullying or engaging in retaliation

Examples Teasing that humiliates or hurts another person

Intimidation, either physical or psychological

Threats of any kind, stated or implied

Assaults on students, including those that are verbal, physical, psychological, or emotional

Attacks on students belongings

The Bullying Circle

EFFECTS OF BULLYING

• Why does a person become a bully?

• How does a person become a victim of bullying?

• How can bullying cause emotional pain and scaring?

• What impact does bullying have on a witness or bystander?

Massachusetts Law• An Act Relative to Bullying in

Schools, Chapter 92 of the Acts of 2010,requires school leaders to create and implement strategies to prevent bullying, and to address bullying promptly and effectively when it occurs.

District Anti-Harassment Policy

• General Statement of Policy– The Revere Public Schools is committed to

providing faculty, staff, and students with a learning and working environment that is free from harassment (verbal and/or physical) based on gender, race, religion, national origin, ethnic background, age, sexual orientation, or disability. The goal is to maintain a school climate that is conducive to learning, and therefore supportive and respectful.

Equity CoordinatorMs. F is responsible for proactively addressing issues of equity (racial, ethnic, gender, sexual orientation, ability/disability) to create an accepting school climate respectful of staff and students.

Ms. F’s major role is to assist students with concerns about sexual harassment, bullying, and other forms of harassment and bring the issue to the appropriate authority.

Role Play3. Kevin and his friends ride on the

school bus each morning to get to school. Recently, a couple of students have been taunting Kevin on the way to school. They keep poking him in the back of the head and pulling on his backpack. Kevin asks them to stop but they continue to annoy him.

• Answer Questions:– What was the anti bullying technique this

group used?

– Was the technique effective? Did it work? Please explain your answer

BYSTANDER 101 Violence Prevention Unit

BystanderDefinition: those who witness, encourage or watch bullying

happen or hear about it. Bystanders are the third group of players involved in the bullying incident.

Types of Bystanders

Hurtful Bystander -Instigates the bullying by prodding the bully to begin. Encourages the bullying by laughing, cheering, or making comments that further stimulate the bully.

Helpful Bystander -Directly intervenes by discouraging the bully, defending the victim (target), or redirecting the situation away from the bullying. Seeks out help or support from an adult.

• Note: When seeking out help or “telling” an adult you are reporting incidents of unsafe or hurtful behaviors. You would not be a “tattle tale or snitch”. The difference is that the goal of the “tattle tail” is to report with the intention to get a student into trouble not to help the target.

Reasons Bystanders have for not getting involved:

• Afraid of getting hurt• Afraid of becoming the new target• Afraid of doing something that will only make the

situation worse• DOES NOT know what to do! The bystander has

not been taught ways to intervene, to report the bullying or how to help the target.

Think………What might be some excuses for not getting

involved?

It is every student’s responsibility!• Bullying creates a school climate that can

make students feel unsafe and afraid. It is important that students recognize that they are responsible for helping to create a safe, caring, respectful and bully-free environment. Overall it means doing the right thing to help a targeted fellow student no matter what else other bystanders may or may not be doing.

How do you become a “helpful bystander”?

• Understand what empathy is• Recognize how perception influences

what you observe• Know your school policy on bullying • Take the steps you need to in order to

report the incident or safely intervene if you feel comfortable doing so

Three Components of Empathy

• Empathy is the ability to identify with and feel another persons concerns---being able to put yourself in the “other person’s shoes”

1. The ability to identify how another person is feeling.

2. The ability to understand another person’s point of view. (or taking on the role of the other person)

3. The ability to respond emotionally to another person

What influences how we perceive bullying?

Factors that influence perspective:• Experiences• Feelings• Beliefs• Needs• Motivations play a part; what do you want

to achieve or get out of the situation

What are you looking for in the bullying situation as a bystander?

• Physical Clues:Facial ExpressionsBody Language• Verbal Clues:LanguageTone• Situational Clues:What is observed---what is happening/going on

What do you do next?When deciding to be a “Helpful Bystander” you

choose what is most comfortable and safe for you at that moment. It can be:

• Helping the target walk away• Saying something appropriate to redirect the

situation• Seeking the help or support of an adult by

reporting the aggressor’s behavior against the target

POLICY RECCOMENDATIONS

1. Strict liability: If school fails to implement an anti-bullying policy, it will be held to a strict liability standard. 2. “Carrot and stick”: If school implements state-mandated anti-bullying policy, it will be held to a negligence standard; if not, a strict liability standard. 3. Shifted liability: If school implements anti-bullying policies to the best of its ability, liability will shift to parents of bullies and bullies.