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Published in Print: March 1, 2004, as Undue Process

Undue Process

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Some educators tire of teaching in the shadow of lawsuits.

The threat of being sued has always been in the back of modern educators' minds—a small voice warning them not to stray too far onto potentially litigious ground. But during the past few years, the field of education has come to resemble a legal minefield, and educators' caution has metastasized, becoming outright paralysis.

That's the conclusion of a bipartisan legal-reform group crusading against the "legal fear" that organizers say diverts schools' attention from the mission of educating children. "It's the anaconda in the chandelier that stares down and makes you refrain from saying what you would otherwise say," said San Diego City Schools superintendent Alan D. Bersin. "We've created a due process system that defeats progress rather than serves it."

Bersin was among the speakers at a forum held this past fall at the Brookings Institution in Washington, D.C., to discuss the question, "Is Law Undermining Public Education?" Organized by the New York City-based Common Good, the forum brought together social scientists and education leaders and released a report on the subject by Public Agenda, an opinion-research organization also based in New York City. Drawn mainly from research on three focus groups in Illinois and New York state, the study found that teachers and principals were highly concerned about accusations of abuse. Educators in the focus groups also voiced a strong belief that "litigation and due process requirements often give unreasonable people a way 'to get their way.'" For many administrators, "avoiding lawsuits and fulfilling regulatory and due process requirements is a time-consuming and often frustrating part of the job," the report says.

Common Good's founder, New York City corporate lawyer and best- selling author Philip K. Howard, opened the forum with a call for support of his group's "radical mission": to free people from being so worried about ending up in court that they "go through their day looking over their shoulder and stop doing what they think is right.... It diverts teachers from doing what they do best, which is to be themselves and focus on the children," he said.

Richard Arum, a panelist and associate professor of sociology at New York University who wrote Judging School Discipline: The Crisis of Moral Authority, said the legal straitjacket many educators find themselves straining against is a fairly recent phenomenon. The legal climate for schools started to shift in the late 1960s and early 1970s, Arum said, when many students challenged disciplinary actions related to political protest or other free-speech issues. Because of legal precedents established during that era, he said, courts have since handled far more challenges to disciplinary actions stemming from general misbehavior, as well as incidents involving alcohol, drugs, weapons, and violence.

While the courts often side with schools in such cases, Arum said, they have fueled caution among educators about disciplining students.

No one on the panel urged a return to the way schools operated before the 1960s, however. Speakers were quick to laud the advances lawsuits have forced upon education over the years, from desegregation to the accommodation of disabled students. "Litigation in the realm of public education really does have an exceptionally honorable history," said Deborah Wadsworth, the recently retired president of the nonpartisan Public Agenda. Still, she added, "it is also true that excessive litigation has teachers and principals literally walking on eggshells."

It's perhaps because of that honorable history, Wadsworth said, that educators are more hesitant than other frequently sued professionals to advocate reform. To many, the current situation seems "preferable to the days when students had no rights," she told the forum. "They have concerns about tilting things in the other direction and are suspicious of the motives of people seeking change." David Schoenbrod, a professor at New York Law School in New York City, said Congress should consider requiring limits and sunset provisions for court decrees on school issues. "We need something like a school litigation reform act," he argued.

Yet for all the obstacles that lawsuits have created for educators, law itself may be the only remedy for excessive litigation. "I wish it would be easy to get out of the quagmire we're in," Bersin said. "But we are a system of laws, and it's going to take the law to get us out of this."

Caroline Hendrie

Vol. 15, Issue 5, Page 17

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