It shouldn’t take legal action for schools to act on bullying
Threats of legal action may force schools to take action on bullying, but this should not be their main driver. From www.shutterstock.com.au
By Sally Varnham
A former pupil is suing her Victorian school for the psychiatric harm she allegedly suffered from bullying.
There is now a strong body of evidence that demonstrates the severe psychiatric and emotional damage bullying can cause, and the significant impact it can have on life’s expectations. And its harm is widespread – the sufferers, the bullies and society as a whole.
Investigations of school shootings such as Columbine speculate that they are acts of retaliation. Not infrequently there are reports of suicides of students who are bullied. Tolerance in schools can lead to bullying in workplaces, families and other areas of life.
We have come a long way to recognise bullying as intentional, often criminal behaviour, which would be treated as such outside the schoolyard. It should never be tolerated, especially now that we are aware of the harm it causes.
Does failure to take action render schools liable for harm?
The courts believe so. In 2003, following the successful action of former student Lisa Eskinazi against her Victorian school, incredulity turned to concern in the education community.
Doubt was further cast aside when the New South Wales Supreme Court and Court of Appeal decided that former students Benjamin Cox and Jazmine Oyston (2007 and 2013 respectively) were entitled to damages from their schools.
Firmly buried was the traditional notion that bullying should be endured as part and parcel of school years. More recently, though, technology has provided ample opportunity for a widespread, remote and more cowardly form of bullying – cyberbullying. This clouds the question as to the extent of a school’s responsibility.
It makes the position of schools more difficult, or alternatively perhaps (though yet to be tested), it affords them greater escape from liability.
So what is the basis of a school’s responsibility to deal effectively with wrongful actions by one student against another? In legal terms, liability relies on a breach of a duty of care causing the harm suffered.
Schools clearly owe a duty of care to students. A long line of precedents where students have suffered physical injury is testament to this. It becomes hazier when psychiatric and emotional harm is alleged many years later.
In simple terms it relies on a school’s lack of effective action in the face of knowledge, and on a causative link between that inaction and the harm suffered.
This is easy to determine in the case of playground accidents, but decidedly more difficult in cases of school bullying, particularly with a long period of time intervening. However, as demonstrated above, it’s not impossible.
The question of liability misses the point
A much wider and more pressing question is what may be done to erase this huge blot on the landscape of schools and society. Taking the problem seriously is the first step.
Most would agree that a school that has knowledge of bullying behaviour within its grounds or online but arising out of school relationships, and fails to take remedial action, is complicit.
But what to do? Most reactions, such as excluding of perpetrators from school, may be more damaging. There are many suggestions that any disengagement from schooling can lead to increasingly bad behaviour from bullying perpetrators.
Schools need to take action to protect the well-being of all students, not because they could be held liable. From www.shutterstock.com
A short term fix with no long term gain
A quick flick through the websites of schools and state education departments reveals endless anti-bullying programs and policies. But are these helping the child now being excluded from games, being called names, receiving hate messages or having nasty material about them circulated on social media?
More importantly, are they leading to changes in school cultures? The biggest challenge is how to break the cycle from the very beginning – at family, preschool and school level. This is not an easy overnight fix. It requires all members of the community having equal responsibility for a peaceful, hostile-free learning environment.
On one level this includes a “bystander” responsibility and encouragement of “telling”. It also requires each member of the school community showing respect, responsibility and developing the communication skills for dealing with differences.
It requires assisting young people to put themselves in another’s shoes, to see the harm they have caused, to repair it and restore relationships. For many schools there is evidence of success but it is easy to say and hard to do, especially given meagre resources in many cases. A highly commendable initiative is Bullying. No Way and its mantra: Taking a Stand Together. There’s a long way to go but the journey must be taken.
Wrongs must be redressed and the threat of legal action in many instances may lead to galvanising action. It would be lamentable, however, if this was the main driver of action. The better view is that modern educators see bullying as serious anti-social behaviour which has a severe impact on all children’s right to education, and are working on creating school cultures where bullying cannot exist.
This post was first published over at The Conversation on 1 July 2015. It is reproduced with permission from its Deputy Managing Editor Helen Westerman. The author is a Professor of Law at University of Technology, Sydney
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