The State of Connecticut has enacted numerous laws to prevent bullying and harassment, and to prohibit discrimination of children in our schools. Indeed, just two years ago the state passed new laws to strengthen the old ones, as those had utterly failed to stop the behavior. The new law, "An Act Concerning the Strengthening of School Bullying Laws" (PA 11-232), required the creation of Safe School Climate Plans focused on the quality and character of school life to address the existence of bullying; Student Safety Support Plans for students against whom bullying was directed; and regular reporting obligations. However, the law appears to have had little impact in protecting our children. Indeed, it has been widely reported that the Connecticut Commission on Children continues to get calls from parents about unresponsive school officials and, even worse, school officials who seem reluctant to implement the new law.
There have been so many complaints to the Department of Education and the Commission on Human Rights and Opportunities (CHRO) that Robert J. Brothers Jr., who until his recent retirement was the executive director of the CHRO, was compelled to send an open letter to school principals, superintendents and PTA/PTO presidents, reiterating that bullying, harassment and discrimination are illegal in our state and that "as parents, teachers and administrators, you have both the ability and obligation to prevent bullying and its harmful effects." A link to that letter is prominently highlighted in the center of the CHRO's home page.
Those who are charged with protecting the well-being of our children would, undoubtedly, tell us that they believe in, and support, the rule of law. No doubt their lawyers would as well. Indeed, they and their lawyers will proudly tell us how their institutions have complied with the rule of law in Connecticut by adopting a Safe School Climate Plan. These plans will provide measurable data which the state can use to assess the status of their efforts. However, without a real commitment to stop the bullying, what such plans will not do is stop the behavior it is measuring. Compliance with Connecticut's strengthened school bullying laws and non-discrimination laws is not and cannot be simply a matter of plans, procedures and metrics. Our school boards and administrators cannot simply ignore or circumvent the substantive aspect of these laws.
What kind of counsel should members of the bar offer? Regrettably, too many members of the bar only see the short-term issue of a single specific incident, or case, and the possibility of litigation it may bring. With this narrow focus, lawyers often fail to see or refuse to see the larger picture and the greater evil. The societal cost of that failure is great.
Oliver Wendell Holmes, in his 1897 Harvard Law Review article, "The Path of the Law," asked "What constitutes the law?" and answered, "The prophecies of what the courts will do…" If we use Holmes' "businesslike understanding" to inform our counsel, to carefully examine how and if the law is well applied as a tool to protect, we cannot fail to see how our schools and their attorneys have missed the bigger picture. In the bigger picture, there is more than one school child. In the bigger picture, that child could be repeatedly bullied and harassed. And importantly, in the bigger picture, the school district loses the litigation(s). And when the litigations are lost by the schools, the ones most affected, the ones who really lose, are the very ones the law is supposed to protect, our children.
The CHRO is correct and the law in Connecticut is clear. It is not necessary to abandon our adversarial system, adopt any specific political or social theory, or even a specific moral or ethical position in order for us all to see the breadth of the problem and counsel accordingly. •