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Should we lay down the law?

It may seem sensible to legislate against bullying, but US examples provide cautionary tales, says Ian Rivers

It may seem sensible to legislate against bullying, but US examples provide cautionary tales, says Ian Rivers

The question of whether legislation is needed to address school bullying is one that has increasingly been on the minds of legislators and the judiciary - particularly in the wake of a number of high-profile cases of cyber-bullying.

But in the US, where anti-bullying legislation has been introduced in many states, problems of definition have arisen. Attempts to protect young people who represent particular minority groups have met with resistance from Republican legislators, who argue that freedom of speech must also be safeguarded.

In Tennessee last year, for example, House Bill 1153 and Senate Bill 760 sought to ensure that First Amendment rights (freedom of speech) were not curtailed by the accusation of bullying. The bill described bullying as "any act that substantially and measurably interferes with a student's educational benefits, opportunities or performance". It also defined bullying in terms of "physically harming a student or damaging a student's property; knowingly placing a student in reasonable fear ... or creating a hostile educational environment".

Its authors went even further, stating that creating a hostile educational environment "shall not be construed to include discomfort and unpleasantness that can accompany the expression of a viewpoint or belief that is unpopular, not shared by other students, or not shared by teachers or school officials."

In effect, the Bill said that religious, philosophical or political views that did not involve a threat to physical violence or property were protected under the First Amendment.

While this Bill provided a uniform definition of bullying to be used in Tennessee schools, its focus on physical bullying and the destruction of property meant that name-calling, labelling and social exclusion were not included and thus victims of these forms of abuse had no recourse in law. Additionally, in many other states, cyber-bullying and sexual bullying are defined and legislated for separately, resulting in a number of definitions circulating at any one time.

The effects of legislating against bullying can be seen most readily in Texas. One middle school principal told me that she cannot use the word when discussing a child's behaviour with parents for fear of legal action if all criteria are not met.

For behaviour to count as "bullying" it has to be written or verbal, expressed through electronic means or physical conduct. It has to occur on school property or at a school-related activity. It has to have a demonstrable - or likely - effect of physical harm, damage to property or placing an individual in reasonable fear of harm. And it has to be "sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment". Finally, it should also exploit an imbalance of power and interfere with a young person's education or the running of the school.

In other words, the legislation means that bullying only exists when a pattern of behaviour has emerged over time and when the detrimental effects are clear.

In the UK, the Department for Education defines bullying as "behaviour by an individual or group, repeated over time, that intentionally hurts another individual or group either physically or emotionally". It is acknowledged that bullying can take many forms and can be motivated by prejudice, but it is left to teachers and schools to make their own judgements about whether a pupil's antisocial behaviour qualifies. If we were to legislate against bullying, using the DfE's current definition, teachers would have to ensure that the criteria, particularly the requirement for repetition over time, were met. Additionally, intentions can be very difficult to prove.

This year the US Centers for Disease Control and Prevention (CDC) will publish a manual that provides a uniform definition of bullying endorsed by the federal government. It will also provide a series of recommended questions that accurately measure bullying behaviour in all forms to be included in public health surveillance for schools. Although on educational matters the federal government acts only in an advisory capacity, this new definition will provide states with an opportunity to reflect on the effectiveness of the legislation they have introduced.

Ian Rivers is professor of human development at Brunel University and visiting professor at Anglia Ruskin University. In 2011 he served on the CDC's expert panel to determine a uniform definition of bullying to be used in the Youth Risk Behavior Surveillance System.

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