Commentary

The 'Overregulation' of Schooling

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In April 1986, a 14-year-old high-school student in Washington reported to police that she had been raped by a 16-year-old classmate. The suspect was arrested and freed pending trial.

Concerned about the safety of his students, Michael Durso, the principal of Woodrow Wilson High School, decided to transfer the young man to another campus.

At the time of the incident, the District of Columbia Board of Education had a weak-kneed disciplinary policy, barring expulsions under any circumstances and limiting suspensions to 10 days. For involuntary transfers or suspensions over two days, students had the right to appeal to an independent hearing examiner, who had absolute power to overrule a principal's decision.

In this case, a hearing examiner reversed Mr. Durso's action and ordered the youth reinstated.

The principal responded by informing the school system that he had no intention of allowing an accused rapist back into school with his alleged victim. To protest the order, he stayed away from school for three days.

The school administration then censured Mr. Durso, but the public outcry over the incident was so great that the board of education quickly toughened its disciplinary policy.

Michael Durso's experience suggests two lessons. First, unnecessary legal restrictions on educators' authority can severely hamper their effectiveness. Second, educators can win significant improvements in the law if they work for them.

Recently, both U.S. Secretary of Education William J. Bennett and the Carnegie Foundation for the Advancement of Teaching have warned that schools are becoming bogged down in overregulation. Judges heard more legal challenges to local school-board decisions in the decade from 1969 to 1978 than they had in the previous seven decades combined. And many of the decisions they issued limited educators' ability to make judgment calls about the day-to-day operation of their schools.

Among other actions, courts have:

  • Declared unlawful certain student dress codes;
  • Overruled the terminations of school employees that were based on judgments of ineffectiveness or misconduct;
  • Imposed arbitrary and unworkable restrictions on public assistance to parochial-school students;
  • Ordered districts to bus children to distant schools despite considerable evidence that mandatory busing is educationally ineffective.

The problem lies not just with the courts. In some states, the education code comprises several thick volumes of what one California newspaper called "a morass of regulation that chokes the life out of teacher passion and makes school administration a nightmare of paperwork and conflicting goals.''

I am not suggesting we dismantle the entire legal scaffolding surrounding our schools. The law has, over the years, advanced social goals of profound importance to our nation.

For example, in Brown v. Board of Education and subsequent decisions, the U.S. Supreme Court forced schools to end the gross injustice of denying minority children access to public education. And the Congress's passage of the Education for All Handicapped Children Act has dramatically improved the quality of education provided to disabled young people. Other judicial decisions and legislative actions have also helped promote fairness and curb abuses in education.

But if applied with too heavy a hand, law can smother teachers and principals. Educators need a substantial degree of authority to maintain control and foster an ethos in their schools, to respond quickly to emergencies, and to select and retain the most effective school employees.

Studies have shown that teachers and principals do not fully understand all the laws affecting them, and that they tend to assume they are more constrained than they actually are. And the fact that school officials can face personal liability for inadvertent legal violations also causes them to think twice before imposing discipline, dismissing incompetent employees, or implementing controversial reforms.

This unacceptable state of affairs can be changed. Indeed, there are signs that balance in the legal regulation of education may be returning.

The Supreme Court in recent years has moved toward a position of increased deference to the academic decisions of educators. Earlier this year, in Hazelwood School District v. Kuhlmeier, the Court held that school officials may, in pursuit of important educational goals, assert substantial control over the content of student newspapers and other school-sponsored activities.

The Court's ruling in Bethel School District v. Fraser (1986) endorsed moral instruction as a proper school function and affirmed a school's right to discipline students for inappropriate behavior, including indecent speech. In New Jersey v. T.L.O. (1985), the Court upheld the authority of school officials to search students suspected of drug use or other prohibited conduct.

And in Regents of the University of Michigan v. Ewing (1985), the Court gave instructions that all educators should find welcome: "When judges are asked to review the substance of a genuinely academic decision ... they should show great respect for the faculty's professional judgment.''

The underlying philosophy of these decisions is particularly encouraging: The Court has reaffirmed the moral authority of our nation's educators.

Despite these advances, broader deregulation of education will come only if educators insist on it. They must refuse to be intimidated by apparent legal barriers to sound educational practices.

In many areas important to educators, the law is still evolving; whether a given course of conduct is permissible or prohibited may remain unclear. When an attorney advises that the law prevents a school official from taking a desired action, the official should ask for suggestions on alternative ways of achieving the desired result without an unreasonable risk of liability. If the attorney is consistently unable to provide such advice, he should be replaced with more constructive legal counsel.

When unwise regulations hamper teaching, educators--either as individuals or as a group--should focus public attention on the problem and promote reform.

And teachers and administrators need not act alone. Support for deregulating education is growing among the general public. And educators who want to eliminate barriers, or who--like Michael Durso--find themselves under legal attack, should request assistance from local lawyers and from associations of principals and school boards.

In particular, educators and interested members of the public should back shifts to school-based management as a means of strengthening the authority of principals and teachers.

While educators today certainly face more legal hurdles than they did a generation ago, the law need not prevent them from giving our students the education they deserve.

Vol. 07, Issue 35, Page 24

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