The Center for Law, Health and Society represents the culmination of research, educational and community outreach initiatives developed in the health law field at Georgia State University. For more information about the center, visit clhs.law.gsu.edu.


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Simply punishing students for bullying will not address the problem

by Emily Suski, Georgia State University

This article was originally published on The Conversation. Read the original article.

The spring legislative season is well underway, and, as has been the case for the last several years, a number of states are again considering and passing amendments to their anti-bullying laws.

This year, Florida and Kentucky, for example, saw amendments to their anti-bullying laws introduced in their general assemblies. Florida’s bill, which has been signed into law by Governor Rick Scott, requires schools to review and revise their anti-bullying policies at least every three years. And Kentucky’s bill has come up with a clear definition of bullying so schools better recognize bullying when it occurs.

These changes to anti-bullying laws are good first steps, but recognizing the problem is not sufficient. Schools also need to know what to do about it as well. States’ anti-bullying laws can and should guide and require schools to implement interventions that truly address the causes and effects of bullying.

My research on bullying has focused on anti-bullying laws – what they do, what they don’t do. The truth is these laws can both help and hurt students.

Simply punishing bullies does not work

All 50 states and the District of Columbia now have anti-bullying laws. However, bullying continues to be a widespread and pernicious problem.


Prohibiting and penalizing bullying does not work.
Terry Freedman, CC BY-NC-ND

The most recently published data from the National Center for Education Statistics show that in 2011, 37 percent of sixth grade students reported experiencing some form of bullying.

Bullying can have significant and sometimes tragic effects. Bullying can lead to decreased academic performance, increased school dropout rates, increased depression and even suicide in some extreme cases.

Yet very few of the states’ anti-bullying laws effectively address the problem.

Indeed, the vast majority of these laws call for nothing more in response to bullying than punishment of the bully. Often, this means the bully will face suspension or expulsion from school.

For example, when Montana became the last state to pass its anti-bullying law last year, it simply prohibited bullying.

Montana’s law states,

Bullying of a student enrolled in a public K-12 school by another student or an employee is prohibited.

Idaho’s anti-bullying law goes further in its efforts to be punitive. The anti-bullying law is part of its criminal code. So the punishment for bullying in school means facing criminal penalties.

As a result of the lack of guidance or mandates that schools do more than simply punish the bullies, it is likely that schools are treating bullying in the same way as they treat most other serious student disciplinary problems – by suspending and expelling students.

Across the country, the number of suspensions has more than doubled in recent decades. In 2009-10, the most recent year for which statistics are available, more than 3.3 million students were suspended and over 100,000 were expelled from school. While statistics do not disaggregate on the basis of bullying, they are indicative of schools’ overall response to serious student disciplinary problems, of which bullying is one.

Why doesn’t punishment work?

Punishing bullies may seem like the obvious, natural response to the problem. But it does not truly address it.

Social scientists who study bullying have found that “there is limited evidence that mandatory suspensions are effective at curbing aggressive or bullying behavior.”


Simply punishing students does not improve their behavior.
Working Word, CC BY-ND

While sending students home from school does communicate that the bullying behavior is unacceptable, it does little to teach them how to improve their behavior. When students are suspended or expelled from school, they typically sit home with nothing to do. This is unlikely to stop bullying.

Moreover, such studies also suggest that students who bully may have behavioral or emotional problems that require intervention in order to address the root cause of bullying.

If schools were to focus on effective early intervention for bullies instead of waiting to punish bullying behavior after the fact, it is likely they would see a decrease in bullying and suspensions and expulsions. In addition, it could prevent some tragic consequences of bullying.

Interventions that do help

Social science researchers have found that interventions that focus on building a broad range of social skills are effective at curbing bullying behavior.

One such program, known as Positive Behavioral Interventions and Supports (PBIS), endorsed by the U.S. Department of Education, has been found to be effective. Its effectiveness stems in part from its basic model, which allows for the use of multiple intervention models, ranging from school-wide training to individualized interventions, that can be integrated in the school setting.

States’ anti-bullying laws can draw on such social science research to call for schools to use interventions that do work, but very few of them actually provide support for such strategies. As a result, most schools are left to incorporate them only as far as their notoriously strapped budgets and resources allow.

There are, however, some notable exceptions.

For example, Florida’s new law mandates schools to address student bullying behavior at the same time as continuously reviewing and revising their policies with an eye toward improving responses as needed.

Nevada’s example

Nevada has gone a step further.

In 2015, Nevada revised its anti-bullying law to call for, among other things, hiring social workers to provide services to address the bullying problem and its effects. Even better, it funded the law.


Stopping bullying will involve a comprehensive program.
Ken Whytock, CC BY-NC

It allocated nearly US$16 million to support the hiring of the social workers devoted to working on bullying problems. These social workers work on building social skills and empathy development programs in schools.

Nevada passed the law due in no small part to the advocacy of Jason Lamberth, father of Hailee Lamberth, who was a student in the Nevada public schools. Hailee committed suicide in December 2013 as the result of bullying in school.

In her suicide note, Hailee asked that her school be informed of the reasons she committed suicide so that the school would prevent bullying from harming other students in the future.

Nevada had an anti-bullying law in place at the time of Hailee’s suicide that, much like the vast majority of states’ anti-bullying laws, called for schools to investigate and impose discipline for bullying. That law obviously did not help prevent Hailee’s bullying or her resulting death.

Jason Lamberth’s advocacy led Nevada to pass a law that holds the promise to do what Hailee asked schools to do: prevent and address the underlying causes of bullying.

Using punishment of the bullying as the primary or sole intervention for addressing bullying cannot address the complicated causes and effects of the problem.

As other states look to amend their laws, they should look at Nevada’s example and make their laws meaningful and not just well-intentioned. And they should not wait for another tragedy to make those changes.

Emily Suski is an assistant clinical professor at Georgia State University College of Law teaching family law and in the HeLP Legal Services Clinic, part of the Health Law Partnership, a medical-legal partnership among law school, the Atlanta Legal Aid Society, and Children’s Healthcare of Atlanta. She is also a member of the Center for Law, Health & Society. She has extensive experience advocating for children and adolescents with disabilities and has trained hundreds of medical professionals, lawyers, and others on education and disability law.

 


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Prof. Lytton Speaks on the Significance of Kosher Certification

lytton finalThe Orthodox Union (OU), the largest and most highly valued kosher certifier in the world, provides the coveted “stamp of approval” to qualifying kosher restaurants.  Professor Timothy Lytton, in The Jewish Week’s March 16 article “Prime Battle Over Kosher Practices” commented on the significance of a restaurant’s attainment of OU certification. “When the OU supervises a restaurant, it has to be thinking about the trustworthiness of the person in charge.” Lytton also noted that “[i]f the OU leaves because it considers a restaurant unreliable, most other reputable certifiers will be wary.”

Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law and a member of the Center for Law, Health & Society. His research examines health and safety regulation with a focus on food policy. He is the author of Kosher: Private Regulation in the Age of Industrial Food (Harvard U. Press 2013) and is currently writing a book on the U.S. food safety system.


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Prof. Lytton Comments on Senator Bernie Sanders and the PLCAA

lytton finalGuns and manufacturer liability is a recurrent topic during the presidential debates between Senator Bernie Sanders and former Secretary of State Hillary Clinton. The Protection of Lawful Commerce in Arms Act (PLCAA), which provides immunity to firearm manufacturers and retailers from liability for violence connected with a firearm that they sold or manufactured, is the core of the discussion.

Professor Timothy Lytton provided insight on the PLCAA and on Sanders’ rationale for supporting the law. In the L.A. Times March 7 article “Column Sanders Got the Gun Makers’ Liability Issue Dead Wrong (And Got an Attaboy From the NRA),” Lytton commented on Sanders’ contention that expanding liability for gun makers and retailers would destroy the American gun industry. Lytton argued that the risk of greater liability would give manufacturers greater incentive to monitor the behavior of their retailers. In pointing out that the law provided exceptions to immunity, Lytton argued that Sanders “…did accept that there should be certain amount of liability exposure in the gun industry. He just wanted to roll it back to the early 1980s.”

Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law and a member of the Center for Law, Health & Society.  His expertise is in the public policy implications of tort litigation. Lytton is the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (2005).


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Professor Jonathan Todres Interviews with News Whistle about His New Book

todres finalProfessor Jonathan Todres, expert on children’s rights, recently published his new book “Human Rights in Children’s Literature: Imagination and the Narrative of Law.” Co-authored by Sarah Higinbotham, the book points to popular childhood literary works, exemplifying concepts of children’s rights.

In the News Whistle March 28 article “Life, Liberty, and Literature: Our Q&A with Law Professor Jonathan Todres,” Todres spoke on his book, the progression of children’s rights, and his remaining optimism toward future developments, both domestically and internationally. Todres explained, “[c]hildren’s literature is a wonderful imaginative world that gives children a way to confront heavy issues in a safe space.” He noted, however, that they “took care to be clear in the book that [they] do not think this wonderful imaginative space should simply be co-opted to advance adults’ agenda,” but acknowledged that human rights dialogue already occurs there. “We can debate about specific content of human rights. But when you teach kids about their rights and their responsibilities to respect others’ rights, we see positive outcomes.”

Jonathan Todres is a professor of law at Georgia State University College of Law and a member of the Center for Law, Health & Society. His research focuses on a range of issues related to children’s rights and child well-being, including child trafficking and related forms of exploitation.


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Professor Jonathan Todres Quoted on Children’s Rights and International Law

todres finalProfessor Jonathan Todres shared his thoughts on international law and children’s rights in Oxford University Press’s March 28 blog “Addressing New Frontiers in International Law.”  “Although the first international instrument on children’s rights – the Geneva Declaration of the Rights of the Child – was adopted in 1924, adults are still learning to think of children as rights holders,” Todres noted.  In explaining why children should be viewed as partners in the human rights movement, Todres concluded, “children’s rights…are essential to building just societies.”


Jonathan Todres
is a professor of law at Georgia State University College of Law and a member of the Center for Law, Health & Society. His research focuses on a range of issues related to children’s rights and child well-being, including child trafficking and related forms of exploitation.


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If we don’t own our genes, what protects study subjects in genetic research?

This article was originally published on The Conversation. Read the original article. This article is also posted at Georgia State Law and the Center for Law, Health & Society.

Leslie E. Wolf, Georgia State University; Erin Fuse Brown, Georgia State University, and Laura Beskow, Duke University

On February 25, the White House hosted a forum on the National Institute of Health’s Precision Medicine Initiative. This is an ambitious research study that aims to develop targeted drugs and treatments that would vary from individual to individual.

To reach the goal of eventually being able to make specific recommendations for patients based on their own combination of genes, environment and lifestyle, researchers plan to collect that kind of information from one million Americans. The study is so large so results can account for diversity among Americans with respect to factors such as ancestry, geography, and social and economic circumstances.

At the forum, President Obama remarked “I would like to think that if somebody does a test on me or my genes, that that’s mine.”

Lots of people would make that same assumption – it seems sensible that we would each “own” our genetic information. But the legal reality is quite different. And that could turn out to be a problem, because research projects like the Precision Medicine Initiative rely on research participants trusting that their information is protected once they agree to share it.

As scholars with expertise in research ethics, informed consent and health law, we’re conducting research to clarify how different laws apply to information used for genomic research. We’ll identify gaps in those protections and suggest changes that may be necessary.

President Obama discussing the Precision Medicine Initiative.
Carlos Barria/Reuters

Do you own your genes?

Contrary to President Obama’s expectations, the few U.S. courts that have considered research participants’ claims of ownership of their biological materials have rejected them.

  • John Moore’s doctor used his cells without his knowledge to develop and patent a cell line (cells that could continue to reproduce indefinitely for research). In 1990, the California Supreme Court held that Mr. Moore did not own the cells that had been removed from his body.
  • The Greenbergs and other families affected by Canavan disease, an inherited, degenerative and fatal brain disease in children, provided a University of Miami researcher with tissue and blood samples, medical information and money to develop a genetic test. The researcher patented the associated gene sequence, limiting families’ access to it without payment. In 2003, a federal court rejected the parents’ claims that they owned their genetic samples.
  • About 6,000 research participants responded to a letter sent by Dr. William Catalona, the developer of the prostate specific antigen test, and asked that their research samples stored at Washington University be transferred to Northwestern University, where Dr. Catalona had a new job. But a court determined that the research participants had no control over who held their specimens after collection.

The courts that have looked at the question have consistently decided that once we give our biological materials to researchers, the materials and the genetic information they contain belong to the researchers or, more specifically, the institutions that employ them.

A few states have adopted statutes concerning ownership of genes, but they may not alter court decisions. A Florida statute certainly did not make a difference in the Greenbergs’ case.

Short of ownership, what protections exist?

So you don’t own your genes. But there are other protections for participants in the Precision Medicine Initiative and other research projects.

The primary one comes from the Federal Common Rule. It applies to research conducted or funded by 18 federal departments and agencies. Many universities and other institutions apply the Common Rule to their research too. And research on drugs and devices that must be approved by the Food and Drug Administration (FDA) must comply with very similar rules.

Under the Common Rule, with some exceptions, research studies must be reviewed and approved by an Institutional Review Board (IRB): a committee within the university or hospital, for instance, that scrutinizes proposed experiments involving human subjects. In approving a study, the IRB must evaluate, among other things, the adequacy of the consent process and confidentiality protections, whether risks are minimized and are reasonable in relation to the benefits, and whether the selection of subjects is equitable. The IRB provides a check on what researchers can do.

Once the Institutional Review Board approves a study, researchers can start recruiting people to participate. This is where another protection comes in – consent.

Study subjects should understand the potential risks and benefits of participating.
Form image via www.shutterstock.com.

The researchers must disclose the research’s purpose, procedures and any risks and benefits of participating. In a study like the Precision Medicine Initiative, the primary risks are informational, not physical. For example, if an insurer learned that a research participant had a gene that increases the risk of Alzheimer’s, it might refuse long-term care coverage.

Based on the risks and benefits (if any) discussed in the consent form, participants can decide whether they want to take part. They may decline to participate if they do not trust the researchers or do not want to share their information.

In some circumstances, the Common Rule doesn’t require participant consent. These exceptions are allowed when the study poses little risk to the participant, often because the information cannot be connected to the individual.

In recent years, these exceptions have been called into question as researchers have repeatedly demonstrated that it is possible to identify people whose information has been used in research, but were thought to be unidentifiable. However, such reidentification requires significant effort and technical skills, and, alone, is unlikely to result in harm to participants. Thus, it is not clear that we should forego the benefits of research conducted under these exceptions because of the theoretical threat to confidentiality.

Beyond these exceptions, some research – such as Facebook’s 2014 study that manipulated some 700,000 users’ newsfeeds to determine the effect of negative or positive words on their emotions – falls outside the Common Rule altogether.

In general, research that is not federally conducted or funded or subject to FDA regulations is not governed by federal research protections. Some states have adopted laws that apply similar protections to research not subject to either the Common Rule or the FDA regulations, but those laws vary considerably from state to state.

Additional protections for research participants

The Health Insurance Portability and Accountability Act’s (HIPAA) privacy rule provides a national standard for protecting the use and disclosure of identifiable health information. The corresponding security rule establishes standards for securing electronic health records which could include results of genetic research.

In addition, the Genetic Information Nondiscrimination Act (GINA) prohibits use of genetic information to discriminate against asymptomatic individuals in employment and health insurance decisions. Although it has recognized gaps, GINA provides some protections against discrimination, should genetic information from a research study be disclosed.

As with the Common Rule, state medical privacy and antidiscrimination laws may supplement these federal protections. Thus, the protections afforded to participants may depend greatly on where they live. Moreover, Institutional Review Boards may be unfamiliar with the myriad laws that could combine to protect research participants and their possible gaps.

Beyond these legal requirements, the Precision Medicine Initiative may provide participants additional controls over their data on a voluntary basis. For example, participants could reevaluate their preferences for how their data are shared or used, withdraw their consent for future use of their data at any time and control the types of communications they receive about their information.

While these types of protections may fall short of full legal ownership rights over your genetic information, they do go beyond current legal requirements and may be the types of controls to which President Obama was alluding.

The samples have been collected… now what happens?
Geir Mogen, NTNU, CC BY-NC

What is needed?

We think it is essential for all those involved in research – IRBs, researchers and study participants – to understand what protections are available and what their limitations are.

That’s why we’ve undertaken a comprehensive analysis of federal and state laws that combine to form what we call the “web of protections.” We want to be able to describe how the laws work together, to identify gaps, and to suggest ways to improve those protections, as well as how all this should be described to prospective research participants.

To the extent that the current laws fall short of the types of protections and controls expected by participants in research studies like the Precision Medicine Initiative, we may be able to propose ways that the laws can be updated or supplemented to address concerns like President Obama’s. In this way, we can maintain the public trust on which this research relies.

The Conversation

Leslie E. Wolf, Professor of Law and Director, Center for Law Health and Society, College of Law, Georgia State University; Erin Fuse Brown, Assistant Professor of Law, Georgia State University, and Laura Beskow, Director of the Program for Empirical Bioethics, Associate Professor of Medicine, Duke University

 

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