When the Cost of Fairness Is Too High

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Each year, school administrators are beset with more and more laws, rules, regulations, and court precedents that seek to guarantee everything from the minimum lunch periods to job security for all teachers. We cannot question that worthy goals justify many of these laws, but at the same time we must recognize the huge cost of attempting to guarantee absolute fairness. Increasingly, the limited resources we have allocated for education are diverted to adjudicating the growing number of disputes over such guarantees.

Regulation of education by state and federal agencies is here to stay. Over the last 50 years, the role of the federal government in education has evolved from a shadowy presence into a separate cabinet department, with a staff of thousands and a budget of millions.

Even at the state level the changes have been dramatic. In Connecticut, for example, the whole of the statutes concerning education totaled 69 pages in 1930. Today, school districts must contend with more than 400 pages of statutes on education alone, as well as scores of more general laws that affect them on matters ranging from collective bargaining to freedom of information.

Many may applaud these enlarged state and federal roles, observing that the "good old days" were dark days indeed for the handicapped or the less affluent. To be sure, some of the laws and regulations stemming from the larger state and federal roles have helped us develop an educational system that is as comprehensive and equitable as any. But this success should not suggest that more is automatically better. Each additional statutory or judicial rule is one more concern for school administrators, diverting energy, attention, and resources away from education.

Unfortunately, the realities of the legislative process bode ill for the future in this regard. As Justice Richard F. Neely of the West Virginia Supreme Court pointed out in his book, in How Courts Govern America, that process begins with an assault of proposed special-interest legislation by lobbyists of every type. Before there is even a consensus that a common problem exists, legislators offer "solutions" proposed by interested parties, usually solutions involving new restrictions or guarantees. The legislative body as a whole must defend against the various special-interest laws proposed, and most of the legislative effort is expended to ensure that the particularly horrendous laws don't pass. Legislatures are generally successful; the vast percentage of bills proposed are not enacted. Inevitably, however, some of these laws slip through, and school districts and their administrators have new responsibilities, which often have nothing to do with education.

Of course, each law is a fertile field for new disputes. In Connecticut, for example, tenure now means less than it should; since 1979, even probationary teachers have had a right to judicial review if their contracts are terminated for certain reasons, including "inefficiency or incompetence." Thus, they have the same right of judicial review as tenured teachers. Now, should an administrator miss the yearly April 1 deadline for notifying a probationary teacher of non-renewal, or should a problem arise after that date but still within the probationary period, that administrator will think long and hard about termination.

In the abstract, it is difficult to fault fairness in employment decisions. But where do we strike the balance? Is it fair that a school district divert $20,000 to $50,000 from the textbook account to litigate a termination? Is it fair that students suffer the incompetence of that teacher if the district should find either the prospects or cost of litigation too daunting? What is missing here is a recognition that righting wrongs, both real and imagined, can itself be a "wrong"--a waste of time and money that can be better spent. We must balance the benefit of arguing (in court and out) about everything from extracurricular sports to sex education against the societal costs of such disputes. Often, it just isn't worth it.

In weighing the benefits of legislating (and then litigating) a panoply of individual rights, we must recognize the very real limitations of methods for resolving disputes in general, and our judicial system in particular. We are not buying justice with our litigation dollar; we are simply buying our best approximation--an opinion by fallible, albeit learned, humans on issues that our laws give them the authority to decide. Judges do not ruminate and then disclose some preexisting natural law that resolves a dispute. Like the rest of us, they think it over and take their best shot at reaching a sound decision. The greater the number of laws and regulations affecting education, the more risk school districts face of costly litigation on issues that are not at all clear.

Two recent U.S. Supreme Court decisions illustrate the uncertainties of litigation. For example, one school district asked me in February of 1983 whether all teachers could insist on access to school mailboxes to communicate with their colleagues. The issue was whether the school mailboxes are a public forum. Concluding that they were not, I saw no obligation for the district to permit this practice, and I so advised the client. Less than two months later, the Supreme Court decided a case on this matter, Perry Education Association v. Perry Local Educators Association. The Court split 5 to 4 in concluding that, absent special circumstances, school mailboxes are not a public forum. By so doing, the Court reversed the U.S. Court of Appeals for the Seventh Circuit in Chicago, which (reversing the federal district court) had ruled that school mailboxes are a public forum. Had one Justice in the Court majority seen the matter differently, the Perry school district and my client might have been found in violation of the teachers' constitutional right of free speech, and would potentially have faced a damage claim as a result. My point here is to highlight the uncertainties, and potential costs, of a relatively unimportant First Amendment issue.

Similarly, in Hendrick Hudson Consolidated School District v. Rowley, the Supreme Court reversed two lower federal courts and offered a radically different definition of the "free, appropriate public education" to which handicapped children are entitled under P.L. 94-142, the Education for All Handicapped Children Act. In that case, the federal district court had agreed with the parents' contention that P.L. 94-142 guaranteed their daughter, Amy, a sign-language interpreter. Amy was a 1st grader, deaf and doing well in school, but the court held that the additional service was required in order that the district meet its obligation to give Amy a chance to do her best. Presumably tens of thousands of dollars of legal fees and court costs later, the U.S. Court of Appeals for the Second Circuit voted 2 to 1 to affirm. By the time that the Supreme Court reversed (on a 6-3 vote), the legal costs incurred by both parties on this case were in excess of half a million dollars, not to mention the hours and hours of staff time spent in preparation and administrative and court hearings.

This type of situation is no more than high-stakes poker. And another factor subjects school districts to additional exposure for liability if they guess wrong on alleged constitutional or statutory deprivations--the specter of attorneys' fees awards under Section 1983 civil-rights actions. The theory behind these awards certainly sounds reasonable--if a person establishes a deprivation of a statutory or constitutional right, he or she may recover attorneys' fees in addition to damages. But the reality is the risk of huge expense for any school district that unsuccessfully defends its actions. And I am not not talking about callous school districts, trampling rights with abandon. In one instance, a district won the case (which involved censorship), lost on appeal, and was assessed attorneys' fees on remand by the same judge that had agreed with the district in the first instance.

What to do? The first step is to recognize the distinction between justice and judicial decisions. We can yearn for "justice" in all we do, but we can hardly guarantee it through legislation when we--judges included--cannot even agree on what "justice" means in a particular case. Before school administrators are immobilized by court appearances or attempts to avoid them, legislators must get the message. The "quick fix" or irresistible catchy phrase (for example, "the Equal Access to Justice Act of 1980") must be resisted. More laws, more rules, and more protections for individuals do not necessarily serve society. Increasingly, they hamper us in fulfilling our basic obligation to educate our young.

Second, we must keep an eye out for new laws. My concerns notwithstanding, I suspect that the legislatures and courts will continue to find "rights" to legislate into existence. School administrators must be aware of these new laws and rules as they are developing so they can avoid handing some newly wronged plaintiff and his lawyer a juicy new issue to litigate.

Finally, school administrators must pursue the elusive ideal of justice before the legislature acts. It costs nothing to be considerate of the individual's rights in the first instance. By acting carefully in decisions ranging from student placements to teacher dismissals, we can avoid trouble before it starts. Legislators will have fewer wrongs to right, and school administrators will spend less time on trial and more time on task.

Vol. 03, Issue 36, Page 24

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