Although I do applaud the legislators who have the courage, in a poor economy, to pass New Jersey's recently enacted "anti-bullying law," I'm sad to say that I think the same sort of political spin that often attends such "feel good" legislation is at work here. This law's been called the 'toughest' of its kind. In light of what it doesn't do, we need to redefine the 'tough.'
I make no apologies for the fact that my calling is to bring lawsuits on behalf of individuals who have been harmed in their civil or employment rights. My belief is that the only way you hold someone accountable for a wrong is to make them responsible for the consequences of that wrong. Simply telling people, by way of a legal 'slap on the wrist,' that they have done wrong, and they ought not do it again, does not work.
See my endless stream of anti-corporate, anti-right blog entries prior for more amplification on how important litigation is in ending fraud and civil rights abuses. I do not believe now, and never will believe, that corporations, public entities or anyone who is not personally at risk really learns from anything other than painfully, or that they modify their conduct for any other reason that they wish to avoid pain. Businesses and public entities are not people, and they have no consciences, despite their PR. People do. Sometimes.
Think about it--when you were a child, which lessons did you remember best? The ones that hurt. Human beings simply don't learn well with positive reinforcement, despite every talk show and every feel good psychologist who urges that that method works. The moments I remember most vividly in my childhood deterring certain conduct were the moments where I suffered emotional, physical, financial or other consequences. Embarrassment, Loss and Pain: These were the things that taught me lessons. Lawsuits are the civilized world's version of how to teach those lessons to people and to corporations and other entities without violence. Courts are the place in which painful lessons are taught.
Therefore, I'm always suspicious and critical of statutes which seem to create a new prohibition on conduct that we as a society want to prohibit - and all but the most psychotic of us want to prohibit harassment and bullying in schools - but which don't provide a remedy in the event that the prohibition doesn't take. This new anti-bullying law asks a good deal more from school entities and personnel about record keeping, standards, deterrence, investigation and prevention than the law has asked before. It would seem, certainly, that things will get better now, given these new standards, and they probably will.
What happens when the districts fail to do what this new law asks? What happens when Sally, tormented daily because she wears hand-me-downs or is socially awkward, finally, in despair, suffers mental breakdown or worse, ends her life, as we know some victims do? What if the school district ignored this new law and the 'standards' it imposes? What can Sally's family do?
From what I can see, nothing they couldn't do before the law was passed, and that's not much, because this new law creates no private enforcement mechanism - law suits - to make the lesson of failure count.
Do you think the district as a paper entity cares when none of its people will be held personally responsible? Do you think it's insurance carrier cares?
Tell your legislator that the law has to be given teeth. Until it is, it won't be as effective as it might otherwise be. Some lives will be saved, some suffering prevented, but as a state, as a society, we should want better for our kids.