THE LEGAL SYSTEM AND THE EDUCATIONAL SYSTEM ARE BASED ON FUNDAMENTALLY DIFFERENT APPROACHES
TO CONTROLLING HUMAN BEHAVIOR
This Is One Reason that ABR Implementations Might Fall Short of Creating the Positive School Climate Required for Effective Prevention of Bullying

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Anti-bullying laws like New Jersey's ABR are part of our legal system, whereas schools are part of our educational system. It is standard practice for our legal system to regulate other institutions in our society, including schools, hospitals, businesses, etc.  However, the legal system and the educational system are based on fundamentally different approaches to influencing human behavior, and this is a source of friction in many areas of school regulation, not only in the area of bullying prevention. The legal system is based on a punitive system in which the threat of negative consequences--fines, jail time, State intervention--is used to control human behavior. The educational system is designed to shape human behavior through education, e.g., through developing social skills, empathy, and understanding of the natural consequences of one's actions. The law controls by requiring and forcing; schools control through guidance and education. Schools attempt to teach children self-control; the law provides external control of those who failed to learn self-control. Schools are designed to shape the behavior of children, and the legal system is designed to control the behavior of adults, specifically, those adults whose behavior was not effectively shaped by their parents and schools when they were young.

The difference between the task of shaping children's behavior and the task of controlling adult behavior is acknowledged in our legal system itself, which has different courts, different laws, and specialized professionals who work with juvenile offenders using a more rehabilitative rather than punitive approach to corrections. Juveniles are “adjudicated,” not “convicted.”  However, statutes like the ABR are not part of this juvenile justice system, they are part of the educational regulatory system whose focus is on regulating the operations of the educational systems and the adults employed by these systems. 

Laws that regulate schools are, of course, necessary, but these laws treat schools with the punitive approach that characterizes our legal system, requiring schools, under the threat of punitive action or liability, to shape the behavior of children who need education.  In the case of the ABR, schools are encouraged to address bullying by promoting a “positive school c limate” that will discourage bullying and support positive student behavior.  The irony is that the law requires schools to create a "positive school climate," but does so through a legal system based on punitive threats for non-compliance; there is, therefore, a basic conflict at work. An analogy would be the parent who punishes a child for hitting another child, by hitting the child. The message is mixed, because the means used to deliver the message is not consistent with the intended message.

The practical effect of this conflict is that school personnel feel resentful of the new procedures and paperwork required by the ABR, and their compliance is compelled by the threat of lawsuit and other punitive consequences for non-compliance.  However, they are supposed to create “positive behavioral support” systems for students.  Human nature being what it is, it is difficult for people who are themselves being compelled using negative behavioral sanctions, to create a system in which others are to be supported through positive behavioral rewards.  It is not surprising, therefore, that the need for schools to appear to be “tough on bullying” has been translated, in many schools, into an overuse of disciplinary methods for preventing and responding to bullying.  School personnel in these districts are reacting to the role modeling provided by the legal and regulatory system and are, therefore, unfortunately providing negative, rather than positive, role modeling to students.

Another example of the manifestation of this conflict is the EVVRS system.  Schools in New Jersey are required to report certain types of incidents, including HIB incidents, to the state using the Electronic Violence and Vandalism Reporting System (EVVRS).  The task of guiding student behavior and reducing bullying requires that schools actively and honestly seek to discover and address situations that are, or might become, bullying, so that they can be identified in their incipient stages and prevented from developing into more serious incidents, and so that the students involved can be guided toward successful outcomes.  However, the EVVRS system provides schools with a structural interest in not identifying HIB incidents, because EVVRS statistics are made public. A school that reports a high number of incidents might suffer a number of different negative consequences ranging from oversight, vulnerability to lawsuits, to loss of revenue if the district becomes undesirable to parents and housing values drop. Thus, the fact that schools are regulated by a punitively-driven system places school personnel in a situation in which their own interests are contrary to the best interests of students, who would be better served by a system based on transparency, honesty, guidance, and support rather than punishment for those who are vulnerable or at risk of failing.

State regulation of school systems is necessary, and the ABR is an important tool to compel schools that were not already concerned about bullying to take serious steps to address the problem.  However, the more we understand about the ways in which regulatory systems impact school systems, the better able we might be to establish regulatory systems that not only demand, but actually produce, the intended outcomes.