Brutality and Blindness: Bullying in Schools and Negligent Supervision By School Officials

Bullying affects from fifteen percent to thirty percent of all students in the United States. It results in serious emotional problems for its victims and is a consistent predictor of later criminal behavior among its perpetrators. It is a major force behind dropout rates and absences, and for those who are not completely driven away from schooling, it serves as a constant interference with learning. It is among today's most detrimental and pervasive threats to educational equity in our schools. Bullying, nevertheless, does not typically command the moral and legal attention that other forms of harassment receive, even though it is often the forerunner of those types of harassment and can be just as damaging or even more so. Because the moral case for holding schools responsible for protecting victims of bullying at school rests on different grounds than for preventing discrimination, bullying tends to defy the legal theories most often employed to combat traditional discrimination. Victims are left without remedies, and schools are left with little legal incentive to act. The chapter first describes the problem of bullying and the educational solutions for addressing the problem. It then proposes that courts refine the tort of negligent supervision and recognize the connection between school passivity toward bullying cultures and the substantial injuries that occur for victims of bullying. That refinement requires no novel theories of liability, no excursions into uncharted legal territory, no radical reorganization of schools, and no radical revision of the law. There is nothing radical about calling inattentiveness and professional blindness what it is: it is negligence. And when children are subjected to brutality because of that negligence, there is nothing radical about holding schools accountable to those children.