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'Explosion' in School Lawsuits Has Ended, 2 Unpublished Studies Find

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Washington--The nation's appellate and supreme courts are accepting fewer lawsuits against school officials than they did during the 1960's and 1970's, and administrators seem to be winning a much higher percentage of them, two new studies by leading school-law experts have found.

The authors of the unpublished reports, which were outlined here Nov. 18 at the annual convention of the National Organization on Legal Problems of Education, said their findings indicate that "the pendulum is beginning to swing back" following an "explosion" in the number of school-related cases from 1960 to 1979.

In recent years, a number of prominent educators have complained that judicial interference in school management has created a bureaucratic morass and has stifled school improvement.

In a speech to the American Bar Association last February, for example, former Secretary of Education William J. Bennett argued, "It's time to declare a broad consensus that the first purpose of education law is to enhance education. ... Educational decisions should be made by educators, not lawyers."

The researchers speculated that the decline in school-related cases is due primarily to President Reagan's appointment of conservative judges to the U.S. Supreme Court and to the lower federal bench. Mr. Reagan has appointed more judges than any of his 39 predecessors.

They also attributed the trend to a growing propensity among judges to defer to administrators in educational disputes, and to the wider use of arbitration and other alternative dispute-resolution methods.

The first study, by Perry A. Zirkel of Lehigh University and Sharon N. Richardson of the Springfield Township (Pa.) School District, tallied all reported state- and federal-court opinions affecting precollegiate education dating back to the 1940's. They were able to count only appellate- and supreme-court decisions because trial-court rulings typically are not published.

The researchers found that the number of state- and federal-court decisions jumped from 3,744 during the 1960's to 6,862 during the 1970's, a 45 percent increase. They project, however, that by the end of this decade the number of such rulings will drop to 6,470, a 5.7 percent decline.

Mr. Zirkel, a professor of law and education, and Ms. Richardson, an assistant superintendent and lawyer, said the trend was most pronounced in the federal appellate courts and the U.S. Supreme Court. In those forums, the number of published opinions is expected to drop by some 30 percent, from 2,182 during the 1970's to 1,526 during the 1980's.

At the state-court level, the number of decisions is expected to increase by only 5.3 percent this decade, following a 38 percent jump from the 1960's to the 1970's.

The study also divided all of the cases among five categories to examine patterns of change in the rates of litigation. The subgroups were school desegregation; all other suits of a systemwide nature, such as school finance; employees; special education; and all other suits involving students.

At the federal level, the number of opinions is expected to decline in this decade relative to the 1970's in all categories except special education. That area of litigation, which is being fueled by the Education of the Handicapped Act of 1971 and related laws, is expected to continue rising, from 2 cases in the 1960's, to 22 in the 1970's, to 342 in the 1980's.

In state courts, desegregation lawsuits are expected to decline, from 43 cases in the 1970's to 16 in the 1980's. Other systemwide suits are expected to remain steady at about 2,400. Employee lawsuits are expected to rise, from 1,778 to 2,062, as are special-education cases, from 40 to 99. Suits involving other students are expected to fall, from 410 to 307.

In a second part of the study focusing on U.S. Supreme Court decisions, Ms. Richardson found that administrators are more apt today to be on the winning side than they have been since the 1950's.

According to her analysis, in the 1950's the Court issued rulings in eight school-related cases in which there was a clear victor. Administrators won five and lost three, giving them a 64 percent winning percentage.

Mr. Richardson did similar tabulations for the next three decades. In the 1960's, administrators won only 2 cases and lost 18, for a 10 percent win percentage. In the 1970's, the percentage climbed back to 30 percent (13 wins and 30 losses), and as of July it had risen to 53 percent for this decade (19 wins and 17 losses).

Mr. Zirkel noted that his co-author's findings probably reflect a similar trend in lower state and federal courts because those courts are bound to follow the Supreme Court's precedents and because the Justices set the tone for the rest of the nation's judiciary.

The second study, by Henry Lufler Jr. of the University of Wisconsin-Madison, focused solely on state- and federal-court decisions in cases stemming from the suspension and expulsion of students.

According to Mr. Lufler, assistant dean of the university's school of education, the number of published state and federal appellate-court decisions in this area peaked in 1970, when it reached 26. It then declined steadily until it reached 5 in both 1982 and 1983, rose to 15 in 1986, then dropped back to 10 in 1987.

The study also found that school officials won 60 percent of these cases in the years 1965-69, 55.1 percent in 1970-74, 55.5 percent in 1975-79, 58.8 percent in 1980-84, and 66.7 percent in 1985-87.

"No evidence of a 'litigation explosion' is evident from an examination of 23 years of suspension and expulsion cases," Mr. Lufler concluded. "There has been a substantial movement of court attention from area to area," such as from dress codes in the 1970's to drug and alcohol abuse in the 1980's, "with new subject topics emerging. ... Each issue seems to have a life of its own and then fades in its importance."

Mr. Lufler also noted that policymakers and the media tended to overstate the likely ramifications of the Supreme Court's rulings in the 1970's regarding the due-process rights of students facing punishment, having predicted wrongly that those decisions would prompt a wave of suits.

"Given the impact of commentaries about litigation rates on teachers and administrators, commentators should avoid becoming mesmerized by increases in one area, or by offering comments based on isolated groups of cases," he suggested.

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