Challenges of conflating harassment and bullying in state laws

Harassment, unlike bullying, is a behavior that has been long addressed in state and federal law. Under state law, harassment typically is characterized as unwanted behavior that demeans, threatens or offends another and results in a hostile environment for the victim. As previously discussed, under federal law, it is a violation of civil rights to engage in harassment on the basis of race, color, national origin, sex or disability. Although discriminatory harassment can be regarded as a subset of bullying behavior because it only includes victims who fall into certain protected categories, harassment does not require a power imbalance, which clouds its relation with bullying. In principle, harassment could occur in the absence of a power imbalance.

However, it could be argued that harassment under civil rights law implies the existence of a power imbalance in the notion that certain groups (defined by gender, race, religion, national origin or disability status) must be protected. In this way harassment might still be regarded as a form of bullying, but one in which the power imbalance is presumed rather than determined. This is not a satisfactory solution because it stretches the concept of power imbalance in a circular direction, so it seems necessary to recognize that harassment does not neatly fit into a broader category of bullying.

Recognizing that bullying may be more likely among particular groups of individuals, about one-third of the state bullying laws list characteristics (such as gender, race, national origin, religion, disability and sexual orientation) that may characterize victims of bullying. Debate has ensued over the wisdom of enumerating protected groups or characteristics in bullying laws. Proponents argue that identifying specific groups sends a clear message to school personnel about the need to protect those students who are most vulnerable to bullying, and some evidence suggests that antibullying policies that enumerate groups of protected youth may be associated with fewer suicide attempts among lesbian and gay youth. A more inclusive approach is to enumerate the groups deemed most at risk for bullying, but to explicitly recognize in the law that any form of bullying against any student is prohibited. At least six states have specified that schools must offer all students the same protection against bullying without regard to the student’s legal status or membership in a protected class.

In state law, as in federal law, there is a conceptual problem undermining the use of civil rights laws to protect victims of bullying: Schools increasingly face the complex task of sorting out which federal and state antidiscrimination laws apply to a student who is being bullied — and accordingly have different legal obligations in different situations. Consider the example of a student who is bullied in different ways by different students. A school’s obligations in such a case may depend on the student’s gender, race, religion, national origin and disability status.

A more straightforward and inclusive path is to protect all students from peer aggression that threatens their right to education. Just as no student should be victimized because of gender, race, religion, national origin, or disability status, no student should remain unprotected because the aggression fails to meet one of those criteria. The critical issue should be whether a student is being harmed, and whether that harm is injurious to the student’s health and well-being. In an adult workplace, the standard would be no less.


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