The Futile New York City Class Action Bullying Settlement

It will likely just ensure that NYC's bullying problem continues to grow.

Posted Aug 09, 2018

A major bullying news story of the past week was the approval of the settlement of the class action lawsuit against the New York City Department of Education (DOE).

New York Law Journal/Fair Use
Source: New York Law Journal/Fair Use

The lawsuit represented 23 families that claim their children’s schools weren’t doing enough to make bullying stop. I had feared that a class action lawsuit might result in a humongous payment that would encourage masses of other parents to sue their schools for failing to stop bullying, something that could potentially bankrupt the city. Fortunately, from my limited comprehension of legal documents, it doesn’t seem like the plaintiffs are seeking monetary damages (if you know otherwise, please let me know), only for “declarative and injunctive relief,” so the monetary burden on the taxpayer will be limited to the cost of the legal proceedings plus whatever extra funding may be required for implementing the anti-bullying fixes mandated by the settlement.

Not surprisingly–and legitimately–the DOE denied any wrongdoing, as is typical for defendants in settlements, because not settling would lead to an even more protracted, expensive legal battle. (I will explain below why I think the DOE is vindicated.) Also, the DOE fought for, and won, protection from any further class action bullying lawsuits for the period of four years.

Truth is, the settlement doesn’t demand much more from the DOE than is already required of it. It mostly needs to intensify existing policies and show that it is doing a better job of complying with them. 

Bad News

The expectation is, of course, that the settlement will lead to happier parents because New York City schools will finally make their children safe from bullying. But my conclusion is that this settlement will do absolutely nothing to improve the bullying situation in NYC schools. If anything, it will continue to make matters worse.

There is no reason to think that intensifying and complying with the current failing policies will make them succeed. The reason I support the DOE's refusal to admit wrongdoing is not because NYC schools have perfectly complied with the mandates of the New York anti-bullying law, but because the anti-bullying mandates are a mistake. They are unfair assaults against schools, requiring them to accomplish the impossible. It would be great if anti-bullying laws could make bullying disappear. In reality, they just make it easy for parents to sue schools for failing to make bullying disappear. 

A medical doctor will tell you that if you do something that is destructive to your body as a whole, it is likely to be harmful to the individual parts as well.

I have been serving as a school psychologist since 1978. I have learned to view the school as my client. Things that are bad for the school as a whole are likely to be bad for the individual members as well. Perhaps the worst thing that ever happened to schools is anti-bullying laws. They increase suspicion and blame among students, parents and administrators, intensify bullying, weaken students emotionally, and waste great amounts of taxpayer dollars.

In 2010, New York State proudly passed the Dignity for All Students Act (DASA), considering it to be the best anti-bullying law in the US. This law was supposed to guarantee all students a right to “attend school in a safe, welcoming, and caring environment,” including specifically freedom from “harassment and discrimination of students by students…” In other words, it promises students what no one knows how to accomplish. But even worse, the methods by which schools are required to ensure such an idyllic environment for students are bound to intensify hostilities. Investigating, interrogating, notifying parents, judging, punishing and filing reports with the school district will immediately turn the most minor incident into a feud among students, families, and school administrators. As I have been warning for years, anti-bullying laws are a Catch-22; the harder schools attempt to comply with them, the worse the bullying problem becomes.

The world’s leading bullying researchers, beginning with the creator of the field, Professor Dan Olweus, have been insisting that society needs laws against bullying. While these same experts have been insisting that schools must to use scientifically validated interventions, the research shows that their own programs are essentially worthless for creating bully-free schools. How can anti-bullying laws guarantee bully free schools when the teachings they are based on don't work? If anything, the reverse is true, which is why bullying is a growing epidemic that’s confounding our schools. 

Every major psychological organization has come out against zero-tolerance discipline policies in schools, which should include for bullying. An anti-bullying law is the ultimate in zero-tolerance. Yet for some strange reason, no psychological organization to my knowledge has criticized school anti-bullying laws. When it comes to bullying, psychologists mysteriously abandon scientific thinking.

My Personal Interest in NYC Schools

I have special feelings for NYC schools. I was born and raised in the Bronx and have lived the majority of my life in New York City. I served as a school psychologist for the NYC DOE for 14 years, between 1988 and 2002. While testing was essentially the only requirement of the job, I made time to deal with bullying in the two schools I served, and refined my approach during those years.

I had given numerous well-received professional development workshops within the DOE on bullying after it became a major area of concern following the Columbine massacre of 1999. I also requested my superiors to allow me to deal with bullying on a larger scale within the DOE, assuring them I would still fulfill my mandated testing duties. However, my requests were rejected, and in 2002 I resigned from the DOE so that I could devote myself full time to teaching and producing materials on bullying.

Shortly after New York passed its intensive anti-bullying law, DASA, I was contacted by a company that provides training courses to teachers in New York State on complying with education laws. They wanted me to teach their course for them, which would have been a great opportunity for me. I had been traveling hectically giving seminars throughout the U.S. Concentrating on my own state–which I love dearly–would have made life simpler. Plus, by focusing on one state, the results of my anti-bullying efforts would be more discernible. If I could make an impact in New York, the other 49 states might decide to follow. I was exhilarated by this new opportunity.

Then the training company sent me the anti-bullying syllabus I would be required to teach. It was like sticking a needle in a balloon. I told them with great disappointment, “I can’t possibly teach this. It is going to make everything worse.” They assured me that I could also make time to insert my own teachings. My response was, “How is that going to work? I will spend all day teaching the intensive NYS syllabus. Then at the end of the training I say, ‘What I’ve taught so far is mandated by law and will make matters worse. Here, in a few minutes, is what does work.’” 

I had to turn them down.

Bullying Has Been Going Up in NYC Schools

What has been the result of DASA? Has it solved the bullying problem for New York schools? Not at all. Bullying has become an ongoing source of frustration for the state and city, and no matter how much money they throw at the problem, it continues to grow. The current news about the class action settlement comes on the heels of other news stories informing us that bullying has been rising in New York City schools. 

Chalkbeat/Fair Use
Source: Chalkbeat/Fair Use

A report in Chalkbeat dated June 1 (two months ago) informs us:

Bullying Appears to Be on the Upswing.

Two years ago, city schools reported 3,281 substantiated incidents of bullying, harassment, or intimidating behavior to the state, according to education department officials. In the first half of this school year, 1,883 such incidents have been reported—which would represent a 15 percent increase over two years and a smaller 3 percent increase compared to last year (assuming the current rate continues through the rest of the school year).

Why is bullying in NYC schools going up? Shouldn’t it be going down?

For an in-depth understanding of why anti-bullying laws are making bullying worse, please read my recent article, "The Two 'Fatal Flaws Lurking in American Leftist Politics.'" The flaws need to be understood by proponents of the right as well as of the left, because the idea of anti-bullying laws is so seductive that it is supported by the entire political spectrum.

The major problem with the bullying psychology, upon which the laws are based, is that it has erased the distinction between objective and subjective harm. Acts that cause objective harm legitimately need to be treated like crimes from which the population is protected and perpetrators are apprehended, judged, and punished. This includes acts like rape, theft, murder and arson. The perpetrator is the one responsible for causing the harm to the victim. Apprehending and punishing perpetrators discourages further objective harm and makes society safer.

Acts that cause subjective harm are things like insults, criticism, and rejection. These are inevitable parts of social life that everyone faces and needs to learn to deal with. In fact, they are rights protected by the First Amendment. The degree of suffering is subjective because it is determined not by the perpetrator but by the attitude of the victim. Apprehending and punishing perpetrators of subjective harm does not discourage further subjective harm. It immediately escalates it, and easily leads to objective harm. That accounts for the common phenomenon of physical violence among students occurring after their school got involved prosecuting complaints of insults.

The best way to deal with subjective harm is not by treating it like a crime but learning to handle it on one’s own–by regulating one's emotions and talking directly to those who hurt us. In other words, the solution is social and emotional education.

While we tend to think of a bully as a large brute battering a weaker target just because he can, the truth is that the great majority of what’s called bullying today is subjective harm, primarily insults, criticism, and rejection. We don’t need anti-bullying laws to criminalize objective harm, because it is already criminal. These laws attempt to erase subjective harm, and that is why they are making everything worse.

The NYC Settlement

If you read the settlement, you will see that its demands are almost entirely about intensifying this approach to bullying complaints, including increasing the budget for anti-bully personnel. That is fine for dealing with acts that cause objective harm. It is disastrous for dealing with subjective harm. 

If a couple of years down the road you see that bullying has continued to be a growing problem in NYC schools, please don’t say I didn’t warn you.

So What Should NYC Do?

One intervention the settlement doesn’t require is the one that has the greatest chance of success: teaching kids the social skills for dealing with bullying on their own, including when to treat it like a crime that requires intervention of the authorities. 

An educational approach to bullying will not only cost the government (meaning the taxpayer) less money than the current approach, it will save money. All the personnel that are required to make this happen are already on the payroll. Counseling professionals will be able to help more students in less time, and teaching staff will have more time left for teaching academics rather than acting like law enforcement officers. The schools will have less bullying and better education with no additional expenditure other than for training materials, which can be minimal thanks to digital data.

If you are in a position of influence in the New York City Department of Education, I want you to know that even though I no longer work for you, I still think of you and love you. There is nothing that will make me happier than helping you conquer the scourge of bullying—effectively and economically.