Defining bullying is not easy. People tend to see it from their own vantage point, based on their unique experiences. Although there is no universally agreed upon definition of bullying that fits all contexts and circumstances, some things are clear:

  • Generally speaking, bullying is something more than theoccasional back-and-forth that occurs when students engage in mutual misconduct or horseplay.
  • Bullying can include persistent or severe name-calling, teasing, threats or actual violence, and often includes the intent to hurt or harm the targeted student.
  • Bullying also typically involves an imbalance of power between the bully and the targeted student.

U.S. Secretary of Education Arne Duncan described bullying this way in his 2010 speech at the Bullying Prevention Summit in Washington D.C.

Bullying is deliberate. The bully wants to hurt someone. Bullying is usually repeated, with the bully targeting the same victim again and again--and the bully takes advantage of an imbalance of power by picking victims that he or she perceives are vulnerable…. A powerful testament to the fact that bullying is not part of the natural order of things is that most people can remember, even decades later, the feeling of being bullied or bullying another individual. Or they may feel haunted by the memory of standing by while a friend or classmate was bullied.

Using Secretary Duncan’s definition as a roadmap, it seems that Dr. Ken Rigby has the most useful equation for defining bullying:

The past decade has seen an increase in the public consciousness about bullying and its harmful effects. With the increased awareness has come an increased intolerance. These days the bullying that many of us grew up with as kids can now rise to the level of unlawful discriminatory harassment when it is based on a protected characteristic such as the student’s gender, race, or disability. Bullying can also be a crime. It is important then to fully understand the laws that govern bullying behavior.

  1. The Texas Education Code

The 2011 Legislative session made significant changes to the bullying laws. Effective at the beginning of the 2012-2013 school year,Texas Education Code § 37.0832now defines bullying as follows:

(a)“Bullying” means engaging in written or verbal expression, expression through electronic means, or physical conduct that occurs on school property, at a school-sponsored or school-related activity, or in a vehicle operated by the district and that:

(1) has the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property; or

(2) is sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student.

(b) Conduct described by Subsection (a) is considered bullying if that conduct:

(1) exploits an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and

(2)interferes with a student’s education or substantially disrupts the operation of a school.

The definition has two essential parts. First, there must be bullying behavior that has some effect on the targeted student or creates a challenging educational environment for the targeted student. But even if the bullying behavior exists, the conduct will only be considered bullying if it exploits an imbalance of power and actually interferes with the targeted student’s education or disrupts school. This second part of the definition narrows the scope and application of the new bullying law.

The statute is very subjective. This means that administrators have to rely on common sense and experience to make tough judgment calls about whether the behavior in question qualifies as bullying. It’s important to look at the alleged behavior itself, such as the conduct and the words used, not just whether someone uses the word “bullying.” Regrettably, there is no magic formula. When deciding whether a student’s behavior should be treated as bullying, consider:

  • Where did the conduct occur?
  • How severe was the conduct?
  • How often did the conduct occur? Was it pervasive? Persistent?
  • Was the conduct intimidating, threatening, or abusive?
  • Was the targeted student physically harmed?
  • Was the targeted student’s property harmed?
  • Did the targeted student reasonably fear that he would be harmed? Or that his property would be damaged?
  • Was there an imbalance of power between the bully and the targeted student?
  • Was there an educational impact on the targeted student such as attendance, behavior, or grades?
  • Did the alleged behavior make it difficult for the targeted student to participate in school?

When in doubt, a school district would be well-served to err on the side of caution.

  1. District policy

School district policy FFI (legal) defines bullying and provides specific examples of conduct that may be considered bullying. The list includes the following:

•Hazing•Demands for Money

•Threats•Destruction of Property

•Taunting•Theft of Valued Possessions

•Teasing•Name Calling

•Confinement•Rumor Spreading

•Assault•Ostracism

While this list is not exhaustive, it is a helpful starting point in defining bullying behavior. Policy FFI (local) also outlines specific procedures for responding to complaints of bullying.

  1. Student Code of Conduct

Texas Education Code § 37.001 requires that a school district’s Student Code of Conduct (SCC) specifically prohibit bullying. Thus, the Student Code of Conduct should incorporate the legal and policy definition of bullying. In addition to the required prohibition on bullying, most Codes of Conduct also prohibit other related behaviors. For example, the Walsh Anderson SCC also forbids:

  • harassment,
  • engaging in threats,
  • fights, scuffles, or assaults,
  • forcing someone to act through duress, threats, or coercion,
  • name-calling or slurs that could substantially disrupt the educationalenvironment, and
  • a host of technology-related behaviors.

Bullying behavior may also include the creation of a hit list as that term is defined in law and in the Student Code of Conduct. Texas Education Code § 37.001(b)(2) defines a hit list as a list of people targeted to be harmed using a firearm, a knife, or any other object to be used with intent to cause bodily harm.

Even if the SCC prohibits bullying, by law a student who is a victim of bullying and who usesreasonable self-defense in response to the bullying cannot be subject to disciplinary action. School employees must be familiar with the range of options provided in the SCC for addressing bullying or related behavior.

  1. State Criminal Violations

Many times what parents might call bullying may be normal banter or minor disputes and disagreements among students. While not every such incident should be considered bullying, there are times when a situation escalates even beyond bullying concerns, and instead rises to criminal behavior or prompts legitimate concerns for the safety and welfare of one or more students. When student behavior reaches these levels, a school district should not hesitate to contact law enforcement. There are numerous criminal provisions that may require notice to law enforcement and could arise in instances of bullying or cyberbullying.

  1. Assault (Texas Penal Code § 22.01)

Some serious bullying conduct may constitute an unlawful assault or sexual assault. Under Texas law, an assault includes (1) intentionally, knowingly, or recklessly causes bodily injury to another;(2)intentionally or knowingly threatens another with imminent bodily injury; or(3)intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

  1. Sexual Assault (Texas Penal Code § 22.011)

It is a 2nd degree felony to intentionally or knowingly cause the penetration of the anus or sexual organ of another without consent; causes the penetration of the mouth of another by the sexual organ of the actor without consent; causes the sexual organ of another to contact or penetrate the mouth, anus, or sexual organ of another without consent

3. Theft Robbery (Texas Penal Code §§ 29.02 & 31.03)

Bullying sometimes involves theft of another student’s belongings. While a theft simply involves the taking of another person’s property with no intent to return it, robbery occurs when during a theft, a person:

(1)intentionally, knowingly, or recklessly causes bodily injury to another; or

(2)intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

4.Indecent Exposure (Texas Penal Code § 21.08)

There may be a crime of indecent exposure which typically involves a person displaying his or her genitals “with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.”

5.Terroristic Threat (Texas Penal Code § 22.07)

In Texas, a threat of harm may rise to a “terroristic threat” if a person threatens to commit any offense involving violence to any person or property with intent toplace any person in fear of imminent serious bodily injury. Of course, not every bullying statement will be a terroristic threat. A decision on whether a student has engaged in making a terroristic threat often is based both on the imminence of the injury as well as the likelihood of the threat being acted upon by the student. Students and even adults make threatening comments, but often without thinking through the statement. Good judgment on the seriousness of the threat should always be taken into consideration when making a determination on whether to report a student for making a terroristic threat.

6.Online Impersonation (Texas Penal Code § 33.07)

Creating an impostor website or posing as another person online is against the law in Texas. Here is an excerpt from the Texas Penal Code:

(a) A person commits an offense if the person, without obtaining the other person's consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:

(1) create a web page on a commercial social networking site or other Internet website; or

(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.

(b) A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:

(1) without obtaining the other person's consent;

(2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and

(3) with the intent to harm or defraud any person.

7.Electronic Transmissions of Certain Visual Material (Tex. Pen. Code § 43.261)

Minors who sext can be punished with a Class C misdemeanor if they intentionally or knowingly use electronic means to promote or possess visual material depicting a minor engaging in sexual conduct. The offense increases to a Class B misdemeanor if thematerial was distributed to harass, annoy, alarm, abuse, torment, embarrass, or offend another. However, it is an affirmative defense if the person was not more than two years older and in a dating relationship with the other party at the time. It is also an affirmative defense if the material was possessed after receiving it from another minor and it was destroyed in a reasonable amount of time.

There is no federal law that specifically addresses “bullying.” Yet, students and parents often use one or more federal civil rights laws as the basis for stating a legal claim for bullying. For example, if the bullying is based on a student’s race, sex, gender, religion, or disability, then it may potentiallybe considered “unlawful harassment.” It is important, then, to have a good understanding of the federal guidance about bullying.

  1. Guidance from OCR & the Implication of School Policy FFH

The Office of Civil Rights (OCR)at the U.S. Department of Education issued guidance in October 2010 that emphasizes the importance for school employees to be proactive in their efforts to prevent bullying and harassment.

  1. Bullying can constitute unlawful harassment. Districts must be conscious of whether any alleged bullying, teasing or hazing might rise to the level of a civil rights violation, based on the student’s membership in a category protected by state and federal law, including sex, race, national origin, or disability. Such discriminatory “bullying” conduct is addressed in district policies FFH and that policy should be followed if the alleged conduct is based on the targeted student’s sex, race, or disability.

While not ‘officially’ enforced by OCR, the agency’s guidance and actions in recent investigations suggests that it will also hold school districts accountable for bullying based on religion or non-conformity with gender stereotypes. Although sexual orientation is not a category of individuals protected by federal law, OCR has pointed out that some anti-gay conduct (such as harassment or teasing based on a student’s non-conformity with gender stereotypes)can constitute gender-based harassment in violation of Title IX. Similarly, OCR does not enforce anti-discrimination laws pertaining to religion, but the OCR guidance states that the agency would have jurisdiction of such claims if the religious-based harassment could arguably amount to national origin or ethnic discrimination. For example, anti-Islamic harassment could arguably be based on a student’s ethnicity as much as his or her religion.

  1. School districts must take a comprehensive approach. Administrators “should look beyond simply disciplining the perpetrators” and must take a comprehensive approach to addressing and eliminating unlawful harassment. OCR recommends a three-step response for handling bullying or harassment: (1) take immediate steps to investigate, (2) take “prompt and effective steps” aimed at ending the conduct, eliminating any lingering effects, and preventing future recurrences, and (3) prevent retaliation against anyone who reports harassment.

This guidance sets a high bar and requires districts to promptly address, remediate, and prevent discriminatory harassment which can take the form of bullying.

As students increasingly turn to the Internet as a tool for socializing, the chance that technology will be used to bully other students or engage in aggressive behavior also increases. The advances of technology mean that bullying can follow a student anywhere with farther reaching effects and a larger audience. Bullying on the Internet is hard to eradicate since it can usually be recalled and replayed into perpetuity. The law has been slow to catch up to the rapid advances in technology, but a few things are clear.

  1. Understanding cyberbullying

Generally speaking, cyberbullying is "being cruel to others by sending or posting harmful material or engaging in other forms of social aggression using the Internet or other digital technologies." As Nancy Willard explains in the Educator's Guide to Cyberbullying & Cyberthreats, there are even different forms of cyberbullying such as:

  • Flaming: online fights using electronic messages with angry and vulgar language
  • Harassment: Repeatedly sending nasty, mean, and insulting messages
  • Denigration: Sending or posting gossip or rumors about a person to damage his or her reputation or friendships
  • Impersonation: Pretending to be someone else and sending or posting material to get that person in trouble or danger or to damage that person's reputation
  • Outing: sharing someone's secrets or embarrassing information or images online
  • Trickery: Talking someone into revealing secrets or embarrassing information, then sharing it online
  • Exclusion: Intentionally and cruelly excluding someone from an online group
  • Cyberstalking: Repeated intense harassment and denigration that includes threats or creates significant fear

In practice, the fastest growing problems with cyberbullying include:

  • Stealing a password to a social networking site, then using another’s profile to post damaging information or rumors;
  • Altering photographs to humiliate someone;
  • Recording phone calls without an individual's knowledge, then posting the call online;
  • Posting mean-spirited online polls about someone; and
  • Posting hurtful and embarrassing information about others.

See Cyber Bullying Statistics That May Shock You posted August 27, 2008 on alert.com.

  1. School district jurisdiction

There is little question that school districts have disciplinary authority over students for misconduct occurring at school or school-related activities or while using school equipment. Indeed, the recent changes to the definition of bullying specifically include bullying expression through electronic means. Moreover, when a student engages in computer misconduct at school, there is often a direct link to a violation of some school policy or rule, such as the Student Code of Conduct, Extracurricular Code of Conduct, or Acceptable Use Policy. It is this "link" to school that is often missing from off-campus computer misconduct.

When schools try to discipline students for cyberbullying actions that occur off-campus, they are often sued for exceeding their authority and violating the student's free speech rights. Schools should be prepared to show that the activity sought to be suppressed has a school connection and poses a substantial threat to disruption of school activities. If cyberbullying is related to on-campus bullying, that may be a way to show a link to the school. If the school cannot forecast a material and substantial disruption based on the student’s off-campus conduct or speech, it likely lacks disciplinary authority.

Regardless of whether the off-campus speech creates a material and substantial disruption at school, when a school district receives information about off-campus bullying, it is on notice that there is a potential bullying issue that could carry-over into the school environment. In that case, the district should proactively monitor the student’s on-campus conduct.