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All 50 States Now Have a Bullying Law. Now What?

04/27/2015 12:19 pm ET | Updated Jun 27, 2015

On April 21, Montana Governor Steve Bullock signed his state's anti-bullying law, eliminating the title his state has held for the last few years as the only state without one. The law, which is nothing more than a statement that bullying is not allowed, ends a push that started before Columbine in 1999 to establish laws and policies on bullying across the United States. With every state, the District of Columbia, Puerto Rico and the other territories now possessing a bullying law, what's next for the fight against bullying?

It is first critical to ask: What is the purpose of these laws to begin with? The vast majority of the laws, with Montana a notable exception, have but one major requirement: that all schools adopt a bullying-prevention policy. However, as I found in my work in D.C., absent any oversight or technical assistance, which D.C. has uniquely provided, many schools will not be in compliance with their states' laws. Without any mechanism to ensure that schools and districts actually follow through with their obligations, these anti-bullying laws do essentially nothing to help prevent bullying. In fact, we saw no improvement in rates of bullying between 2005 and 2011, a period in which a significant number of new or revised state bullying laws were enacted.

In the end, the goal of state anti-bullying laws was not and is not to actually prevent bullying. Instead, as Education Secretary Arne Duncan wrote in a 2010 memo to governors and state school officers, anti-bullying laws and policies serve to "send a message that all incidents of bullying must be addressed immediately and effectively, and such behavior will not be tolerated." In other words, the purpose of anti-bullying laws is to demonstrate that the legislature recognizes bullying as something that must be addressed, but the laws do not and cannot serve as the mechanism by which to actually address the behavior. Instead, as Secretary Duncan wrote, "when responding to bullying incidents, schools and districts should remember that maintenance of a safe and equitable learning environment for all students, including both victims and perpetrators of bullying, often requires a more comprehensive approach."

Some states have sought to overcome this limitation by expanding the scopes of their anti-bullying laws to not only require schools to have a policy but criminalize bullying for those who engage in the behavior. As I've written previously, criminalizing bullying can have serious, negative consequences for all involved, from further restricting reporting of the behavior to exacerbating the school-to-prison pipeline. Criminalization of bullying behaviors is not an effective solution, in part because we still disagree about the definition of bullying. In fact, no two definitions contained in the 54 state and territory laws now enacted are exactly the same.

In 2013, when Congress was considering an iteration of the Safe Schools Improvement Act, a bill designed to add regulations around bullying prevention to the Elementary and Secondary Education Act (ESEA), my colleague and I wrote about the precedent Congress had to help unify differing definitions of a behavior. Specifically, just as all states currently have differing laws addressing bullying, in 1973 all states had differing laws addressing child abuse. It took the passage of the Child Abuse Prevention and Treatment Act (CAPTA) to help establish a federal definition of child abuse and provide the oversight, resources, and tools to actually address the problem.

With Montana finally passing a law, perhaps it is serendipitous that one of the most heated debates in the Senate Health, Labor, Education, and Pensions (HELP) Committee earlier this month while discussing amendments to a new ESEA reauthorization bill was about how to address bullying. The debate surrounded not whether to include bullying in the bill but to what degree the U.S. Department of Education should have oversight of schools' bullying-prevention efforts. It seems as though the stage is primed for Congress to provide a federal definition of bullying, much as it did in 1973 for child abuse.

As those amendments head toward the Senate floor when the ESEA reauthorization is debated by the full chamber, looking back at the purpose and result of the state laws is critical. Just as we found in D.C., passing a law is often not enough; resources must be provided to help schools understand both the letter of the law (what they're required to do) and the spirit of the law (what they need to do to actually prevent bullying). Senators must consider whether their goal in adding bullying to the ESEA is to simply "send a message that bullying must be addressed" or to actually see reductions in bullying.

Even though all 50 states now have laws and the Senate is considering one of its own, the fight is far from over. In fact, it has only begun.

P.S. While you're considering the language to use in whatever the final bullying amendment to ESEA ends up being, don't forget to include a statement that bullying may include -- but is not limited to -- behaviors targeted at specific groups.