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Playground to Penitentiary: Symposium Addresses the Criminalization of School Bullying and the New Massachusetts Statute

(Boston, Revised 02/17/11) New England Law | Boston: The age-old problem of school bullying has escalated due to online “cyberbullying” and numerous highly publicized suicides, including that of South Hadley High School student Phoebe Prince earlier this year.  Some states have criminalized school bullying, and school policies and procedures are being scrutinized.

Professors Tigran Eldred and Monica Teixeira de Sousa moderated the two panels.  John Keeney '11, the journal's managing business editor, helped organize the symposium.

The roots of this dilemma, however, may be far more extensive, as speakers pointed out at the New England Journal on Criminal and Civil Confinement’s (NEJCCC’s) annual symposium on October 1.  “The problem of bullying goes well beyond the walls of the little red schoolhouse and Facebook,” said noted criminologist and author James Alan Fox of Northeastern University.  “We worship athletes who taunt their opponents. Managers are rewarded for manipulating subordinates. Politicians say ‘Bring it on’ and ‘Reload.’ Bullying will be a factor in society as long as we admire brutes and pity pushovers.”

“Playground to Penitentiary: Criminalizing School Bullying and the Massachusetts Anti-Bullying Law” also featured Daniel Weddle, director of academic support and clinical professor, University of Missouri-Kansas City, who was quick to propose a narrower view.

“We know it’s happening.  We know how to intervene to reduce it.  We have a duty–it’s within the scope of liability.”  Professor Weddle went on to suggest that tort lawyers could go after schools on these issues.

Panel 1 and journal staff:  Professor James Alan Fox, Northeastern University; Adjunct Professor Wendy Murphy; Professor Sarah Salter; Professor Kathleen Conn, Neumann University; John Keeney ’11, managing business editor; Connie Rankins ’11, editor in chief; Susan Duncan, University of Louisville; Professor Daniel Weddle, University of Missouri-Kansas City School of Law; Professor Douglas Abrams, University of Missouri School of Law

The symposium’s morning panel considered issues surrounding the criminalization of school bullying, enforcement, and alternative methods of addressing the issue. The afternoon panel specifically addressed the new Massachusetts Anti-Bullying Law.

The timeliness of the symposium’s topic was made clear by the September 22 suicide of Rutgers University student Tyler Clementi, which followed his online “outing” by peers.  Professor Sarah Salter highlighted the significance of Clementi’s alleged sexual orientation. “Over 30 percent of students bullied have been gay or alleged to have been gay by their classmates,” she said.  “We know because we have a record–Facebook, etc.–that indicates what bullies talk about.”

Professor Salter discussed the range of state statues enacted in regard to school bullying, pointing out that while acceptance of diversity is part of the background regarding most legislation, some groups oppose these efforts because they don’t accept what they term “the homosexual agenda.”

Regardless of how the issue is characterized, the statistics are sobering:  6.3 percent of high school students attempted suicide in 2008-09–over one million students, according to Neumann University Professor Kathleen Conn.  “Every high school teacher can expect to see at least one male or two female students who have attempted suicide.” 

Panel 2:  Professor Tigran Eldred; John Bynoe, associate commissioner, MA Department of Education; Glenn Koocher, executive director, MA Association of School Committees; Isabel Raskin, practitioner in residence, Juvenile Justice Center, Suffolk University; Robert Trestan, eastern states civil rights counsel, Anti-Defamation League; John Keeney ’11

The legal system, however, has been reluctant to pin the crisis on schools.  “Courts have not been willing to hold school districts liable for suicide,” explained Professor Conn, “because they say it (suicide) is an ‘intentional act.’”  The U.S. Supreme Court’s decision in Davis v. Monroe (1999) is an additional obstacle, she said.  Although the Court decided in favor of the petitioner and against the school district in Davis, a student sexual harassment case, “It set a high bar.”

Adjunct Professor Wendy Murphy was supportive of the prosecutorial tactics, which include felony charges, currently being employed to hold Phoebe Prince’s accused tormentors accountable.  She believes that schools are generally more afraid of lawsuits from those charged with bullying than they are of those from victims and that the district attorney in the Prince case is helping to create “some equality” with her tough stance.

The well-attended symposium prompted numerous questions from the audience.

A complete listing of presenters and bios is available online.

The New England Journal on Criminal and Civil Confinement, published exclusively by students of New England Law | Boston, is one of the nation’s top criminal law journals and the only specialty journal that specifically addresses civil confinement law. The journal is published twice a year and addresses important constitutional and policy issues in the areas of criminal justice and civil confinement. Each issue includes articles written by judges, leading scholars, and practitioners together with notes and comments authored by journal staff.

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