Bullying victimization as a disability in public elementary and secondary education.

• Author: Abrams, Douglas E.
• Position: Conclusion

1. INTRODUCTION

   1. Jamey Rodemeyer (1997-2011)

      "JAMIE IS STUPID, GAY, FAT AND UGLY. HE MUST DIE!" (1)

      "I wouldn't care if you died. No one would. So just do it :) It would make everyone WAY more happier!" (2)

      "Kill your self!!!! You have nothing left!" (3)

      "you're a bad person, you don't belong here, jump off a bridge or something!" (4)

      "Go kill yourself, you're worthless, ugly and dont have a point to live." (5)

      "You werent bom this way. You shouldnt have ever been bom." (6)

      "Jamie" was Jamey Rodemeyer, a 14-year-old freshman who was starting his second week at Williamsville North High School in Williamsville, New York, in the fall of 2011. (7) For several months, classmates targeting him as gay sent messages such as these in social media, the climax of bullying that reportedly began in the fifth grade and continued throughout middle school. (8)

      As Jamey entered Williamsville North, his life was torn between outward signs of emotional strength and inner impulses toward personal despair. In May of 2011, he used his webcam to produce and post online his video for the "It Gets Better Project," which seeks to fortify students who are bullied because of perceptions about their sexual orientation. (9) The project's perspective is that the sting of childhood and adolescent bullying fades with the passage of time. "All you have to do is hold your head up and you'll go far," Jamey spoke directly into the camera, "Just love yourself and you're set.... It gets better." (10) The video, his intermittent positive blog postings, and his denials of personal troubles reportedly reassured his parents that he was taking the incessant bullying in stride. (11)

      Advising schoolchildren to wait patiently until life "gets better" may seem sensible to many adults, and may indeed help many children overcome frustration or setback caused by bullying or other crises in their lives. The advice has its limits, however, because impatience can color an adolescent's worldview. Recollecting a difficult childhood decades later is one thing; awaiting a better adulthood may be quite another.

      Unlike adults, who have learned to anticipate the future and thus to manage delay, children have a built-in time sense based on the urgency of their instinctual and emotional needs.... ... A child will experience a given time period not according to its actual duration, measured objectively by calendar and clock, but according to his purely subjective feelings of impatience and frustration. (12) Jamey Rodemeyer's outward expressions of optimism masked suicidal thoughts that began as early as the fifth grade and later led him to begin seeing a social worker and a therapist. (13) Early in 2011, he responded to a social media question, "What's one thing people don't know about you?" "How much I hate my life," he typed, "Maybe it's cause I'm bullied, a lot." (14) "People would just keep sending me hate, telling me that gay people go to hell," he explained on YouTube. (15)

      On September 8, 2011, Jamey wrote that "[n]o one in my school cares about preventing suicide, while you're the ones calling me [slur not quoted in the media] and tearing me down." (16) On September 9, he wrote that "I always say how bullied I am, but no one listens. What do I have to do so people will listen to me?" (17) Perhaps anticipating four more years of actual and virtual bullying in high school, Jamey posted his final online message in the early morning hours a few days later and then committed suicide in his backyard. (18)

   2. The Emerging National Consensus About School Bullying

      As of January 2013, forty-nine states (all but Montana) have enacted anti-bullying statutes, (19) thirty-six of which explicitly address cyberbullying, the "electronic aggression" (20) that Jamey Rodemeyer endured in the last months of his life. The state statutes typically require school districts to adopt written anti-bullying policies, teach prevention curricula, discipline bullies, and cooperate with law enforcement when bullying turns criminal. (21) By acting in such unison, state legislatures have articulated a national consensus that bullying in the public elementary and secondary schools inhibits learning by substantially disrupting or interfering with the educational mission and by compromising victims' physical or emotional security." (22)

      Several states also require school administrators to notify law enforcement authorities about students in school who commit criminal acts characteristic of much bullying (such as assault, harassment, stalking, or sexual or racial intimidation). (23) At the federal level, agencies have recommended creative anti-bullying strategies (24) and Congress has authorized grants to states and localities for bullying-prevention curricula. (25)

      Educators, social science researchers, legislators, and other concerned citizens continue debating the likely effectiveness of particular states' anti-bullying statutes, which the lawmakers periodically amend in light of experience and emerging studies. Legislation and periodic amendments remain only tentative first steps, however, because, as former Harvard Law School Dean Roscoe Pound wrote, "[t]he life of the law is in its enforcement." (26) Pound's dictum means that achieving a statute's protective purpose depends not on mere enactment, but on responsible efforts by public authorities to implement the statute. Words on paper protect no one, and statutes do not enforce themselves.

      Implementing statutory mandates often comes with costs and risks that might give public authorities pause as they contemplate enforcement measures. Designing anti-bullying policies, teaching bullying-prevention curricula, and monitoring disputes among students strain tight local school district budgets by consuming precious time of faculty members and administrators; (27) disciplinary sanctions may expose these school authorities to litigation by disciplined bullies and also their parents. (28)

      Mindful of these costs and risks, the core of my presentation today is that face-to-face bullying and cyberbullying should be perceived as acts that saddle victims with a disability that inhibits learning. This perception may strengthen the resolve of school authorities to counter bullying, and may also provide a readily understood rationale to help schools win essential support and cooperation from students, parents and other local constituencies for bullying prevention programs.

      Perceiving bullying victimization as an educational disability puts school authorities on familiar terrain because they have grown accustomed to enforcing the Individuals with Disabilities Education Act (IDEA), which Congress enacted in 1975 as the Education for All Handicapped Children Act. (29) For more than a generation, the IDEA has sought to guarantee "full educational opportunity to all children with disabilities," (30) and the emerging state legislation seeks to guarantee this opportunity to children who are bullied. (31) The IDEA reaches both congenital disabilities (32) and disabilities that, like bullying victimization, stem from events or circumstances unrelated to biology or birth. (33)

      Without amending the IDEA or other disability laws to recite bullying, two reasons support analogies between bullying victimization and disabilities. First, Part II of this Article describes how face-to-face bullying and cyberbullying impose on victims the sort of educational deprivation that the IDEA addresses. Second, Part III describes how today's belated public sensitivity to school bullying victims resembles the belated public sensitivity to students with disabilities that led to passage of the IDEA in 1975. Public awareness of the plight of schoolchildren with disabilities was long overdue by the early 1970s, and public awareness to the plight of bullied schoolchildren is long overdue today. In light of the IDEA and recent state anti-bullying legislation in virtually all states, it is no longer acceptable public policy to perpetuate insensitivity in either sphere.

      Teachers and school administrators familiar with the IDEA have grown accustomed to perceiving a disabled student's fragile physical or emotional condition as a barrier to learning. Bullying can leave student victims similarly fragile, and perceptions matter in public education as much as in other areas of everyday life.

2. BULLYING VICTIMIZATION AS AN EDUCATIONAL DISABILITY

   1. A "Major Public Health Problem" (34)

      1. The Scope of the Problem

         Leading national experts have graced this Missouri Law Review Symposium with thoughtful insights concerning constitutional, psychological and practical issues raised by efforts to confront cyberbullying's effects on schoolchildren whose classmates tag them as "different." This tagging may arise not only from perceptions of the target's sexual orientation, but also from such factors as the target's race, ethnicity, social isolation, physical or emotional weakness or disability, obesity, small size, appearance, or lack of social skills. (35) Researchers have even linked bullying to a target's speech or language impairment, vision problems, cancer, cerebral palsy, diabetes, or muscular dystrophy. (36)

         Bullying occurs when a student or group of students repeatedly cause intentional physical or emotional harm to another student in a relationship marked by an imbalance in physical or emotional power. (37) The harm may come from physical assault, words, ostracism, teasing, or some combination. Repetition and power imbalance distinguish bullying from isolated disagreements between students, or even from isolated acts of violence or intimidation. (38)

         Bullies have prowled schools for a long time. (39) Fans of old movies might recall Tom Brown's School Days, which starred Sir Cedric Hardwicke and Freddy Bartholomew in 1940. The movie was based on an 1857 novel about a British public school, and bullying was the main theme. (40)

         Even more virulent today is cyberbullying--messages that...