This Article begins a theoretical and empirical discussion on bullying and cyberharassment of all students, but particularly gay and lesbian youth. Despite the recent spate of bullying-related suicides, I argue that antibullying proposals that include harsh criminal punishments for egregious cases of bullying and cyberbullying in schools lack validity as a matter of legal theory and practice. In fact, it is what makes criminalization so initially attractive — that is, the public’s emotional and retributive need for punishments equal to bullying tragedies — that ultimately leaves the proposal devoid of reason. Criminalization proposals only satisfy retributive aims and are unlikely to solve the problem of bullying and cyberbullying in schools and unlikely to succeed as effective punishments.
If criminalization will not work for theoretical and practical reasons, I propose further study into affirmative “soft power” antibullying programs. In this context, I analyze the latest social science data about face-to-face and online bullying — their frequency, effects, and solutions—but also begin to fill the broad gap inempirical research on cyberharassment of gay and lesbian teenagers by studying one California high school and proposing specific avenues for further study. Those results will appear in a future paper. This study focuses on cyberbullying, the LGBT community, and unique school- and community-based solutions. My preliminary analysis suggests that school use of diversity inclusive curricula and teacher and peer support venues may create a more civil school climate that reduces the frequency and effects of bullying and cyberbullying, especially for gay and lesbian teens.
Temple Law Review, Vol. 84, Issue 2 (Winter 2012), pp. 385-442