Convinced that “America’s lawsuit culture” is holding public education by the throat, the organizers of a bipartisan legal-reform group launched a campaign last week to reduce the “legal fear” that they say needlessly diverts schools’ attention from the mission of educating children.
At a Nov. 5 forum held at the Brookings Institution here, the New York City- based organization Common Good assembled panels of social scientists and education leaders to discuss the question “Is Law Undermining Public Education?” It also released a study on the subject by Public Agenda, an opinion-research organization also based in New York City.
Common Good’s founder, the 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.”
Educators, Mr. Howard said, have been particularly hamstrung by that fear. “It diverts teachers from doing what they do best, which is to be themselves and focus on the children,” he said.
Among the speakers at the event were Eugene W. Hickok, the acting deputy secretary of the U.S. Department of Education, San Diego schools Superintendent Alan D. Bersin, and William Ouchi, a veteran school reform advocate who is a professor of management at the University of California, Los Angeles.
They and others suggested that Mr. Howard’s group had put its finger on a compelling problem, but that finding solutions for it wouldn’t be easy. Also emphasized throughout the proceedings was the valuable role that litigation has played in securing educational opportunities for students from racial and ethnic minorities and children with disabilities.
“Litigation in the realm of public education really does have an exceptionally honorable history,” said Deborah Wadsworth, the recently retired president of nonpartisan Public Agenda. “It is also true that excessive litigation has teachers and principals literally walking on eggshells.”
Pointing to the study Public Agenda conducted for Common Good, Ms. Wadsworth said teachers and administrators have many complaints about the role that litigation, and the fear of it, play in schools.
Among the study’s findings was that “for many principals and superintendents, avoiding lawsuits and fulfilling regulatory and due process requirements is a time-consuming and often frustrating part of the job.”
The study, based mainly on three focus groups in Illinois and New York state, also found high levels of concern among teachers and principals about being accused of abusing students, and a strong perception that “litigation and due process requirements often give unreasonable people a way ‘to get their way.’ ”
Still, Ms. Wadsworth said, educators seem to possess less of a sense of urgency than doctors do about the need to reduce litigation, except in the area of special education.
“A large proportion of educators defend what’s going on ... as preferable to the days when students had no rights,” she said. “They have concerns about tilting things in the other direction, and are suspicious of the motives of people seeking change. The idea that we’re here to reform the legal process is going to need some stoking.”
Mr. Howard made clear that exactly that kind of stoking was what Common Good intends to do. He called last week’s forum the “opening salvo” in a campaign to change public opinion about the role of law in the schools. The conference was also sponsored by the AEI-Brookings Joint Center for Regulatory Studies, run by the centrist Brookings and the conservative American Enterprise Institute, both Washington think tanks.
Common Good is branching out after initially focusing on the health-care industry, said Mr. Howard, whose 1996 book The Death of Common Sense was a best seller. He followed up that volume in 2001 with The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom.
‘The Best Intentions’
Another speaker was Richard Arum, an associate professor of sociology at New York University and author of the newly published book Judging School Discipline: The Crisis of Moral Authority in American Schools.
Mr. Arum said the legal climate for schools shifted in the late 1960s and early 1970s, when many students challenged disciplinary actions related to political protest or other free-expression issues. Because of legal precedents established during that era, he said, since 1975 courts have 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, Mr. Arum said, they have fueled caution among educators about disciplining students. The upshot, he contends, is that schools are having more trouble socializing students at a time when their duty to do so has grown greater because of shifts in family structure.
David Schoenbrod, a professor at New York Law School in New York City, argued that court decrees—typically influenced heavily by plaintiff wish lists, he said—had spawned the development of complex regulatory bureaucracies in many urban school systems.
He said Congress should consider requiring that decrees involving schools stick to rectifying violations of law, be easier to modify as conditions change, and expire after a specified time period.
“We need something like a school litigation reform act,” Mr. Schoenbrod argued.
Legalistic thinking has had a pernicious effect on the behavior of many educators, said Mr. Bersin, a former federal prosecutor during the Clinton administration and a corporate lawyer who has been the superintendent of the 143,000-student San Diego school district since 1998.
“It’s the anaconda in the chandelier that stares down and makes you refrain from saying what you would otherwise say,” he said. “We’ve created a due process system that defeats progress rather than serves it.”
At the same time, he said, court battles such as those waged to end school desegregation and the marginalization of children with disabilities were “as much worth fighting as the ones put on our agenda today.”
Those seeking to diminish the role of law in education should proceed with caution, he added.
“I wish it would be easy to get out of the quagmire we’re in ... by simply waving a wand,” he said. “But we are a system of laws, and it’s going to take the law to get us out of this.”