| Emerging lawsuits against schools by victims of bullying has created a pressing need to identify educators' legal obligations. Through analysis of statutory and case law on torts, negligence and human rights, I articulate and defend legal standards representing the emerging state of the law, with specific attention to educators' obligations to: (1) ensure physical and psychological safety; (2) foster non-discriminatory school environments; and (3) teach social responsibility. The analysis is informed by a profile that distinguishes bullying from child's play. Bullying involves a power imbalance between perpetrators and victim. The unwanted, relentless, exclusionary and deliberate nature of physical or psychological bullying can be overt or covert, random or discriminatory. Consequences are emotionally and educationally devastating, destroying confidence, causing depression or suicide. Biological causes (e.g. genes, hormones, malnutrition) interact with environmental influences (e.g. neglect, abuse, school environment) to result in bullying.; My tort law analysis identifies a duty of care based on careful parent and reasonable professional tests requiring educators to be alert, aware, honest and intelligent. I highlight judicial decisions recognizing psychological harm as tangible. The standard of foreseeable harm turns on sufficient educator knowledge (specific, constructive or actual) based on age, maturity, propensity to injure, degree of danger, deliberate or spontaneous actions by students. The causal nexus depends on whether educators' actions proximately or remotely caused injury and victims' contributory cause. Despite judicial reluctance to accept educational malpractice as a tort, some courts concede it may apply to egregious harm. My consideration of human rights obligations discloses a responsibility to eradicate discriminatory learning conditions throughout schools, the standard being reasonable accommodation of student needs to the point of undue hardship. Schools risk liability if they fail to act on knowledge of discriminatory bullying, and if their actions or omissions affect access to learning.; I conclude by highlighting discrepancies between the legal standards identified in the thesis and commonly adopted well-intentioned zero-tolerance policies and anti-bullying programs. I recommend educational, ethical and legally defensible alternatives grounded in theories of ethics of care that provide courts with a framework to adjudicate bullying and help schools avoid the tidal wave of litigation. |
