WHO IS THE EXPERT?
HAVE ATTORNEYS REPLACED
ANTI-BULLYING PROFESSIONALS
AS THE NEW "ANTI-BULLYING EXPERTS"?
The Importance of Getting Legal Advice from Attorneys,
and Anti-Bullying Advice from Professional Anti-Bullying Experts,
and the Difficulties Involved Combining the Two Sources of Advice

The Role of the Professional Anti-Bullying Expert

The concept of the "anti-bullying expert" refers to psychologists, sociologists, and other behavioral scientists who have professional knowledge of human behavior, advanced training in organizational dynamics, and familiarity with the research on bullying prevention strategies. The knowledge of these experts is based on research and experience with youth, bullying, and schools, and the advice they give to schools is designed to make schools safer for students by addressing bullying effectively. Often, experts have doctorates in their professional fields, and specialize either by training or by practice, in bullying, bias, or violence prevention.

The proficient anti-bullying expert understands bullying at multiple levels. It is important to understand the psychological, emotional, and social development of youth, individual and social factors that influence behavior, bullying as a social as well as an individual problem, group psychology, youth culture, different types of bullying (verbal, physical, social, and cyber), and the social structure of schools, in order to provide recommendations that will be effective and appropriate.

The Goal of Compliance vs.
The Goal of Effective Anti-Bullying Programming

The goal of the professional anti-bullying expert is to make schools safer for students by addressing bullying effectively. The introduction of a law requiring schools to address bullying has the effect of introducing a second goal, that of compliance with the law itself. Ironically, the goal of compliance can compete with, and even supersede, the original goal of effectively addressing bullying. This would not be a problem if the goals of compliance and effectiveness were completely symbiotic with each other. In other words, if these two goals required exactly the same strategies, then meeting either goal would necessarily fulfill the other goal as well. However, despite the fact that the New Jersey's Anti-Bullying Bill of Rights (ABR) is based on the tenets of research-based strategies for addressing bullying, a narrow focus on compliance--in the absence of an understanding of research-based effective practices and an equal commitment to effectiveness--can produce strategies that do not also meet the goal of effectiveness. As a result, a law that is intended to make schools safer for children actually has the potential to distract from, and/or undermine, the original goal of effectively addressing bullying.

In schools that were not properly addressing bullying before the law, this might be necessary; at least the law compels these schools to pay attention to bullying. However, in schools that were already taking bullying seriously before the law, the goal of compliance can divert staff attention from the goal of effectiveness--for example, by prioritizing procedures and paperwork over student support--and in some cases, can undercut programs that were successfully addressing bullying.

Unfortunately, because of the fear of lawsuits, in many schools the goal of compliance not only competes with the goal of effectiveness, it can take priority over the goal of effectiveness. As unfortunate as this situation is, it is understandable from the point of view of the school; the existence of the law creates a threat of consequences for violations, which puts the school in a defensive position. This gives the school an interest in protecting itself, which, in our litigious society, is regrettable but understandable. Ideally, a school would protect itself from lawsuits by ensuring that it is protecting its students from bullying, but in the real world, protecting the school legally is not the same as protecting individual students physically and mentally.

The Role of the Attorney

Like other professionals, attorneys have a job to do. The job of an attorney who is contracted to provide legal advice or counsel to a school district is to protect the school district and the schools within it. The district, not the individual students or families, is the attorney's client. That is, the attorney is supposed to protect the interests of the school or district, focus on the goal of reducing liability, and make sure that the school or district is in a defensible legal position. The attorney is not a psychologist or sociologist, the attorney is not hired to protect individual students, and the attorney's professional training does not include a comprehensive education in bullying prevention.

It is worth pointing out, in case it is not self-evident, that the advice that schools in New Jersey have reportedly received from their attorneys varies greatly. In other words, there might be only one "law," but there are many different opinions about exactly what it takes to comply with the law or establish a defensible legal position. Some schools have been given legal advice that is consistent with both the law and evidence-based best practices, and other schools have reportedly been given advice that might be consistent with the law, but runs counter to evidence-based best practices.

Both Types of Expert Advice Are Necessary

To ensure the safety of students, schools should get their legal advice from lawyers, and their anti-bullying prevention and response advice from professional anti-bullying experts. School personnel should then take both sources of advice seriously, and design strategies that conform to both sources of advice. When these two sources of advice are consistent with each other, this might pose a challenge, but not an impossible one. However, as noted above, and as illustrated by hypothetical examples, in my experience, it is often the case that these two sources of advice do conflict with each other.

Have Attorneys Become the New De Facto "Anti-Bullying Experts"?

When legal advice conflicts with evidence-based advice, schools cannot really be blamed for following the advice of their attorney and disregarding the advice of the professional anti-bullying expert; they have to choose the goal of compliance over the goal of effectiveness, and they are not empowered to "disagree" with their attorney about how best to comply with the law. However, the result is that, in New Jersey, attorneys have become the "go-to" people when schools want advice on developing anti-bullying programs, designing reporting and investigation procedures, or for advice on handling incidents when they occur. In effect, attorneys have become the new "anti-bullying experts," replacing the real anti-bullying experts because the goal of compliance has over-ridden the goal of effectiveness. This puts students at risk.

A More Detailed Look at Some Underlying Issues, and Recommendations for Combining Legal Compliance with the Effective Protection of Students against Bullying.

So what should we do about this situation, to ensure that schools are able to simultaneously comply with the law, and effectively protect students? First of all, we need a greater understanding of some of the underlying issues that lead to conflict between the goals of compliance and effectiveness. These issues include the similarities and differences between evidence-based practices and ABR requirements; the fact that the statutory definition of "HIB" is different from the evidence-based definition of "bullying," the fact that our legal system andour educational system are based on fundamentally different approaches to influencing human behavior, and the fact that the interests of schools as social institutions are different from the interests of students, and different from the interests of school staff. The better we understand a problem, the better prepared we are to solve it. Then we can develop strategies for merging compliance and effectiveness, as well as take an honest look at some conflicts between these two goals that pose intractable challenges.