Sunday, October 24, 2010

Bullying IS a Criminal Matter - That's the Problem

Congresswoman Sheila Jackson Lee held a local federal hearing on bullying last Monday at Houston City Hall. Rep. Al Green; Houston City Council members Bradford, Jones, Adams and Houng; a representative of HISD; State Senator John Whitmire and State Reps Alma Allen and Sylvester Turner also attended (State Reps. Jessica Farrar and Garnet Coleman (Who have filed legislation in the past to address the issue) were unable to attend and sent their regards).

There was moving testimony from children, parents and community members (including Equality Texas Board Member Rob Scamardo), but the concern repeatedly raised, particularly from Sen. Whitmire and and Rep. Allen, was a fear of criminalizing childish behavior. Whitmire spoke at length about his fear that a legislative solution to bullying would send troubled children to prison or juvenile hall, creating angry, bitter and uneducated adults whose behavior would be yet more troubling.

They're right. Simply marching bullies away from school in handcuffs is not a solution, we must teach our children that bullying is unacceptable. Which is why a legislative solution to the problem is so desperately needed. Because right now, in many cases, the only solution available to administrators is to treat children as criminals.

For instance, if a child set up a fake Facebook profile from home purporting to be another child, and posting pictures and statuses denigrating of that other child the only solution currently available would be to charge the offender with online harassment (Penal Code 33.07) , a third degree felony. Few adults want to create a felon out of child who made a cruel decision, and so fake social networking profiles continue to be used by bullies. School administrators are unable to do anything to address the issue because the actions take place off of school campus.

What about a child that, on school campus, daily threatens to attack another child? They could be charged with making terroristic threats (Penal Code 22.07), but school administrators often fear overreacting, so they tell the terrified victim to avoid the bully, or at most offer to transfer the victim to another class or school, because, frankly they don't have many other options.

Of course a bully who physically attacks another child could be charged with assault or with any number of other offenses, but experience shows us that administrators rarely call the police, but will, at most, suspend the bully, so that the victim must face an enraged bully again in just a few short days. Again, even the option of suspension is only available if the attack took place at school, otherwise administrators hands are tied.

This lack of action, this fear of reporting crimes to the police, is particularly shocking considering that teachers and administrators are bound by law to report any abuse or neglect of a child, regardless of who commits the abuse (Family Code Chapter 261). The law includes in the definitions of abuse "mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning" - which would certainly encompass bullying. So strong is the compulsion to not criminalize children that teachers and administrators routinely open themselves to legal liability through their lack of action.

So if creating crimes that would prevent bullying is not working - what is the solution?

Several common sense ideas were introduced last session - none of which became law:

Rep. Mark Strama's HB 1323 would have allowed school administrators to address bullying that took place off campus, so long as it affected the education environment, required schools to notify both the parents of victims of bullying and the parents of the bully, allowed administrators to transfer bullies to other schools or classrooms, and would have created a statewide reporting requirement, allowing for better tracking and understanding of bullying.

Rep. Garnet Coleman's HB 3746 would have created a non-discrimination policy for public schools covering "actual or perceived ethnicity, color, gender, gender identity or expression, sexual orientation, disability, religion, or national origin" that would apply to both students and employees of public schools. It would have also required school district to offer regular training to staff and would have creating a statewide reporting system for instances of bullying.

Rep. Jessica Farrar's HB 2923 would have created a similar nondiscrimination policy.

If people like Sen. Whitmire are concerned about the fight against bullying turning children into criminals then they should be supporting solutions like these. Under the current law administrators and teachers rarely have non-criminalizing solutions to the problem of bullying, and they seem unwilling to pursue criminalizing solutions, to their own peril. We must give teachers and administrators the tools and education they need to address this issue, or suffer a generation of queer youth lost to depression and suicide.

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