The Futile New York City Class Action Bullying Settlement by Izzy Kalman
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......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.
The Futile New York City Class Action Bullying Settlement
It will likely just ensure that NYC's bullying problem continues to grow.
Izzy Kalman, Psychology Today, Aug 09, 2018
A major bullying news story of the past week was the approval of the settlement of the two-year-old class action lawsuit against the New York City Department of Education (DOE).
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.
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.
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 talk 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.
Izzy Kalman is the author and creator of the website Bullies2Buddies.com and a critic of the anti-bully movement.
In Print: Bullies to Buddies: How to Turn Your Enemies Into Friends
Online: My Website
Settlement on Bullying in NYC Schools Receives Final Approval
In their suit, the students alleged that violence is “endemic” in New York City schools, particularly those that serve poor and predominantly minority neighborhoods.
By Andrew Denney, New York Law Journal, July 31, 2018
A federal judge has given the final sign-off to a settlement in a class action suit (see below - Ed.) filed on behalf of a group of 23 New York City public school students who alleged the city didn’t do enough to prevent bullying in schools.
In their suit, filed in 2016, the students alleged that violence is “endemic” in New York City schools, particularly those that serve poor and predominantly minority neighborhoods, and they have been harmed either physically or verbally by fellow students and school staff.
When they tried to report incidents to city Department of Education staff, the students alleged, their reports were ignored or department staff were unavailable.
In March, the DOE and the plaintiffs brokered a settlement in which the department agreed to implement an electronic system to allow parents to report bullying incidents and track the progress of their reports, as well as to allow parents to transfer their kids to other schools if they were found to be bullying victims unless the bullies will no longer attend the victims’ school.
Also as part of the settlement, the DOE will approve any transfer request for victims of verbal abuse or corporal punishment by staff if it is found that it is no longer safe for the victim to attend the school.
In an order entered on Tuesday, U.S. District Judge Nicholas Garaufis gave final approval to the settlement and denied a motion to intervene by the Legal Aid Society, which argued that the proposed settlement would prevent it from bringing “systemic, bullying-related claims” against the department in the future.
As a condition of the settlement, the DOE denied any wrongdoing.
James Walden of Walden Macht & Haran, lead counsel for the plaintiffs, said the suit was the first he knew to address alleged systemic issues with bullying in schools.
DOE will report its compliance with the settlement over the next four years to Walden’s firm and to the court. By year four, Walden said, the department is required to be 80 percent in compliance.
Walden Macht attorneys Adam Cohen, Daniel Cohen, Johnson Lin, Catherine Sloan, Avni Patel and Diana Lee also worked on the case.
Assistant Corporation Counsel Marilyn Richter and Evan Schnittman appeared for the city in the case.
Following the settlement’s announcement, a Law Department spokesman told media outlets that the accord builds on anti-bullying programs that the department launched to “ensure safe and inclusive learning environments in every school building.”
In a statement, Legal Aid said the settlement gives the DOE a “broad, four year release from claims, without providing adequate relief to students who are bullied.”
“It includes some procedural improvements, but doesn’t include any new resources or staffing to support students or teachers as they try to address the trauma and mental health issues that both contribute to and result from bullying behavior,” the statement reads. “We call on DOE to dedicate resources to all students to address the underlying causes of bullying so that the behaviors will decrease while ensuring that all students are safe and supported in our schools.”
Andrew Denney is a New York-based reporter covering litigation and other news from the federal and state courts. He can be reached at email@example.com. Twitter: @messagetime
Why Anti-Bullying Laws Are Doomed to Fail
by Izzy Kalman (November 2005)
The Shocking Statistics about Anti-Bullying Programs [created an] uproar in the Western world and made headlines in all newspapers. Instead, the information has fallen on deaf ears and one must play the detective to track it down.
The fourth quarter 2004 issue of the School Psychology Review, the research journal of the National Association of School Psychologists, published the findings of Canadian Psychologist, J. David Smith, PhD, of the University of Ottawa, in a paper entitled “The Effectiveness of Whole-School Anti-Bullying Programs: A Synthesis of Evaluation Research.” He had conducted a meta analysis of all the research studies on the effectiveness of whole-school anti-bullying programs. Guess what he discovered. They don’t work!
As Dr. Smith reports, “…86% of victimization outcomes [reports by victims of program benefits] were negligible or negative and the remaining 14% of reported effects were positive (albeit small). For self-reported bullying, 100% of the reported effects were negligible or negative.”
Given the tendency of research to go in the direction researchers hope it will, the results may be even worse than what these studies indicate. And we can only imagine the terrible things we would discover if researchers actually set out to measure the harmful effects of anti-bullying programs, such as promotion of a victim-mentality, pushing “bullies” to become more anti-social, wrongful punishment, diverting precious class time from academics, turning students against each other, and creating family feuds.
When less damning results are found for a medication, it’s immediately pulled off the shelves and the manufacturer faces law-suits in the billions of dollars.
In the six years since Columbine, the US has spent hundreds of millions of dollars while wasting countless hours of class time on anti-bullying programs that don’t work and even cause harm. Meanwhile, State after State, at the urging of mental health organizations and parent lobbying associations, is passing anti-bullying laws making schools responsible for stopping students from bullying each other. They will have to depend on anti-bullying programs that don’t work! Parents will become enriched by lawsuits against their schools for failing to stop their children from being bullied. But, amazingly, no one seems to care that these programs don’t work. Why?
Why Does No One Care?
Because we don’t want to. We have all experienced the misery of being a victim at one time or another, and our “inner-victim” wants revenge. How nice to finally have a scientist-blessed anti-bully movement that makes it legitimate to blame and hate others for our misery.
We adults haven’t yet figured out how to protect ourselves from the bullies in our lives, and we sure wish that someone would do it for us. So we’ve decided to give our children the security we ourselves have never known. Oh, the excitement of playing knights in shining armor protecting virtuous victims from the evil bullies in school!
A researcher discovers that the programs don’t work? They may even make matters worse? So what! We’re not about to let our beloved anti-bully crusade (and the millions of “free” dollars) be threatened by facts. Fighting bullies is the moral thing to do no matter how much destruction we leave in our wake. We love our big white horses and gleaming armor, and no one’s going to take them away!
What Aristotle Could Have Told Us
In case you are curious, would you like to know why anti-bully policies don’t work? It’s because they can’t – never have, never will. Aristotle figured that out 2400 years ago.
Aristotle, the most influential thinker in the history of the Western world, advocated for good government and for providing maximum rights to people. Yet even he knew, “The one thing that no state or government can do, no matter how good it is, is to make its citizens morally virtuous.” (Mortimer Adler, in “Aristotle for Everybody”; McMillan Publishing Company, 1978).
But this is precisely what the anti-bully movement is trying to do – guarantee our children a life surrounded by morally virtuous people. In other words – saints. Strange as this may sound, if you carefully inspect the academic definition of bullying, you’ll realize that anyone who doesn’t meet the criteria of sainthood is a “bully”:
“Bullying may involve physical action, words, gestures, or social isolation. Although bullying may involve direct, relatively open attacks against a victim, bullying frequently is indirect, or subtle in nature (spreading rumors, enlisting a friend to assault a child).” (State Laws and Policies to Address Bullying in Schools, by Susan Limber and Mark Small, School Psychology Review, 2003, Volume 32).
In other words, whenever you treat someone in a way they don’t like, you are a bully.
Who Started It?
Prof. Dan Olweus, the Norwegian psychologist who conducted research on bullying in the 1970’s, is known as the “father” of the anti-bully movement, and all the popular programs are based on his guidelines. In his book, “Bullying at School” (Blackwell Publishing, 1993) he calls it a “fundamental democratic principle” that “every individual should have the right to be spared oppression and repeated, intentional humiliation, in school as in society at large.”
By “oppression” Olweus is not talking about slavery or forced prostitution; he is talking about any action that bothers anyone else – things all of us do occasionally. Olweus apparently never studied government or philosophy, or he would have understood that this is not, and cannot be, a fundamental democratic principle. The place where no one does anything bad to anyone else is called Heaven, and you have to die to get in. Democracy, even at its best, is not Heaven on Earth.
Why can’t a government (and this includes that of a school) “make its citizens morally virtuous”, as the anti-bully policies are attempting? A little logical thinking will provide the answer.
Aristotle explains that moral behavior is a choice; it can’t be forced on people. It sure would be terrific if a government could simply decree its citizens to be saints. If this were possible, world peace would have been achieved long ago.
But, as Aristotle knew, human beings aren’t biologically programmed to be saints. Making it a crime to do anything that someone else doesn’t like would lead to a totalitarian police state, with the government controlling every minute interaction between its citizens. Let’s say we work together and for whatever reasons you can’t stand my personality. You don’t want to include me in your lunch group, so I get you arrested for “relational aggression.” You think I rolled my eyes when you spoke at a meeting, so this time you get me arrested for “hostile gestures.” You disagree with me at a meeting, so I get you arrested again because it really upsets me when people challenge my opinions in public.
A moral society, by definition, cannot be achieved through legislation. Instead of creating Heaven on Earth, anti-bullying laws would turn society into a Living Hell.
Expecting the Absurd
Let’s look at the practical application of anti-bully policies in school. We’re students and you pick on me. I tell the teacher. S/he says to you, “Bullying will not be tolerated. You have to be nice to people. Bully Izzy again and you’ll be sent to the counselor. And if that doesn’t help, you’re going to be punished, even expelled.” That’s supposed to make you respect me and want to be nice? It will make you want to beat me up after school, or to look for an opportunity to get me in trouble with the teacher.
Or let’s say that the program has taught student bystanders to stand up for victims. A kid sees you insulting me and says, “Hey, bullying isn’t cool! You leave Izzy alone!” Are you going to say to me, “Gee whizz, I didn’t realize I wasn’t cool. Izzy, won’t you please forgive me and be my friend?”
Only a fool would expect kids to react in this way, yet this is precisely what our mental health professionals and educators are hoping, and even expecting, will happen!
Do as I Say, Not as I Do
Anti-bully programs are based on the idea that bullying is a learned behavior. Just as kids have learned to be bullies, they now need to be taught how to be saints. Who, exactly, is going to teach our kids to be saints? You and I? Who do you think they could have learned bullying from in the first place?! Can we honestly tell our kids: “Learn from us how to treat people. Have you noticed how respectful we are to our spouses, and that we never get divorced? And of course we are never mean to our children. We would never say a bad word about our parents, siblings, in-laws, colleagues and bosses – not even behind their backs! We all attend the Non-Discriminatory Church of Universal Acceptance and live in peaceful, integrated neighborhoods.”
Let’s look at what my own research has been revealing about us. About one thousand mental health professionals and educators have filled out my Bullying Survey. 47% of them answered Yes to this item: “There is at least one person in my life that gets angry with me fairly regularly.” This means that almost half of these professionals are currently bullying someone. (People don’t get angry when you are treating them the way they want to be treated, i.e., respectfully, kindly.)
To the item, “There is at least one person in my life that I get angry with fairly regularly,” 57% answered Yes. This means that more than half of mental health professionals and educators are currently feeling victimized and they don’t know how to make the bullying stop. Furthermore, the academic bullying experts define anger as an act of bullying. So by getting angry, these same 57% are simultaneously being bullies. That’s because when you get angry, you feel like a victim, but you look like a bully!
6% of respondents answered affirmatively to, “I have a child who gets hit by other kids in school at least once a day.”
21% answered Yes to, “My children hit each other at least once a day.”
This means that children of mental health professionals and educators are three-and-a-half times more likely to be hit by a sibling at home than by a kid in school. If experts at human relations do such a lousy job of protecting a couple of their own kids from each other at home, how in the world can they expect one teacher to protect thirty kids from each other in school? The answer is that they shouldn’t expect it, but they do anyway.
The Only One Who Can Solve the Bullying Problem
As Aristotle understood so well, there are things a government can do for you and things it can’t. Government can only give you things that money can buy. It can pay for teachers, but it can’t make you learn. It can pay for health care, but it can’t make you healthy. It can pay for police to protect you from crime, but it can’t guarantee that you’ll never be a victim of it.
And one thing it absolutely cannot do is provide you with a world of saints. It can, at best, punish people for not being nice to you. But then, one of the nastiest things you can do to a person is to get them punished by the authorities. So how can the government guarantee you a world of nice people when you’re allowed to be so mean?
If we are to have any chance of achieving a meaningful reduction in bullying, there is one fact we all need to recognize: There is only one person in the world who can get people to treat you well. And that person is you.