The following story appears in the next edition of Education Week. It is based on an Oct. 15 forum sponsored by the American Enterprise Institute and the Thomas B. Fordham Institute. The conference lineup and draft papers are available here.
Scholars Weigh Court Influence Over School Practices, Climate
By Mark Walsh
The courts play a big part in many aspects of public education in the United States, but it wasn’t always that way. And was the situation inevitable?
That was one question that a group of legal scholars, education policy experts, and a few practitioners sought to answer last week at a conference here about the role of the legal system in education.
“The judiciary is amazingly understudied, even though it is ubiquitous in the regulation of public education,” said Chester E. Finn Jr., the president of the Thomas B. Fordham Institute, which sponsored the Oct. 15 conference along with the American Enterprise Institute, both in Washington.
The conference was titled “From Brown to ‘Bong Hits’: Assessing a Half-Century of Judicial Involvement in Education.” The first case is a reference to Brown v. Board of Education of Topeka, the U.S. Supreme Court’s historic 1954 decision outlawing racial segregation in precollegiate education. The second refers to Morse v. Frederick, a 2007 ruling by the justices that a high school student’s display of a banner with the message “Bong Hits 4 Jesus,” which was perceived by school authorities as pro-illegal-drugs, was not protected free speech under the First Amendment.
The conference covered a lot of ground, including school desegregation, discipline, special education, testing and accountability, and student expression. The topics were tied together with a hypothesis that court intervention into school affairs has grown significantly since Brown—and not always in ways that contribute to the public schools’ central mission.
“Midway through the 20th century, federal court rulings on elementary and secondary education remained rare events,” R. Shep Melnick, a politics professor at Boston College, wrote in a draft conference paper. “Today, they are commonplace.”
Mr. Melnick cites a number of explanations for the legal activity. They include the Brown decision’s introduction of the effort to desegregate, the enactment of federal civil rights laws in the 1960s and 1970s affecting public schools, the growing federal role in education policy and funding, and the rise of what he calls “adversarial legalism”—such as help from nonprofit legal organizations for parents and students in disputes with schools over such matters as free speech.
Several participants at the conference, held at the aei’s offices, cited particular Supreme Court decisions that they believe helped fuel the trend.
Attention was paid to such landmark cases as Tinker v. Des Moines Independent Community School District, the 1969 decision upholding the right of students to protest the Vietnam War by wearing black armbands so long as school was not substantially disrupted.
But the attendees also discussed some less-remembered cases that played a significant role in expanding judicial involvement in schools.
For Mr. Melnick, one of those is Monroe v. Pape, a 1961 decision about municipal liability that helped open the door for students, parents, and teachers to sue school districts and administrators for money damages when they believe their constitutional or statutory rights have been violated.
For Richard Arum, a professor of sociology and education at New York University, one Supreme Court case stands out as central to the trend: Goss v. Lopez, the 1975 decision requiring that schools provide at least minimal due-process protections for students subject to suspensions of fewer than 10 days, and more-formal protections in cases of longer suspensions.
School discipline in general, and the schools’ ability to teach and prepare students for citizenship, “have been fundamentally undermined since Goss v. Lopez,” Mr. Arum argued at the conference.
The professor and his colleagues recently conducted a national telephone survey of 600 high school teachers and administrators, to gauge their perceptions and experiences on law and school discipline. According to Mr. Arum’s draft paper, 15 percent of teachers and 55 percent of administrators reported having been threatened with a lawsuit over school matters. The proportions of the teachers and administrators who were actually sued were lower, although the paper doesn’t give specific figures.
“The basic authority relationships in school have been changed by law’s involvement in schools,” Mr. Arum said at the conference.
A ‘Defensive Crouch’
Fear of lawsuits contributes to the average superintendent’s tendency to maintain a conservative, risk-averse approach to the job, said Frederick M. Hess, a resident scholar and the director of education policy studies at aei.
“Career superintendents are taught to remain in a defensive crouch,” said Mr. Hess, who noted in his remarks that many schools chiefs have moved up through the ranks of their school systems, where consensus and collegiality are favored, and that their limited formal training in school law has tended to stress avoiding conflicts.
Mr. Hess’ draft paper promotes a different approach. He presents case studies of superintendents who did not let excessive caution over legal considerations or the barriers of collective bargaining block efforts to improve education.
One was Alan D. Bersin, a lawyer and former U.S. attorney who was the superintendent of the San Diego school district from 1998 to 2005. Mr. Bersin sought to change the mind-set among district administrators about legal and policy issues, bringing in outside lawyers to help shape reform strategies.
Mr. Bersin, now a member of the California state board of education, attended the conference as a discussant for some of the papers.
Most of the conference participants agreed that certain areas of school litigation have passed their peak. The desegregation era is in its last chapter, they agreed, especially in light of the Supreme Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District, which sharply limited the permissible voluntary uses of race in schools.
School finance litigation may have also peaked, as judges seem “disinclined to undertake continuing supervision of school finance policies,” notwithstanding some big cases that remain active, John Dinan, an associate professor of political science at Wake Forest University, in Winston-Salem, N.C., says in his draft paper.
Cases on religious controversies in the schools have probably not peaked, however, and advocates on the political right have increasingly relied on First Amendment free-speech arguments to protect such activities as student prayer or the wearing of T-shirts with religious messages, said Joshua M. Dunn, an assistant professor of political science at the University of Colorado at Colorado Springs.
The overall tone of the conference was lacking in sympathy for student rights. In his paper, however, Mr. Dunn expressed support for legal standards that respect students’ free-speech rights.
One provocative analysis came from Samuel R. Bagenstos, a law professor at Washington University, in St. Louis, who researched federal court dockets and concluded that fewer lawsuits are filed under the federal Individuals with Disabilities Education Act than is widely perceived.
Searching data since 2000, he found that an average of just 374 suits each year were filed under the special education law nationwide.
And the federal No Child Left Behind Act has generated far fewer lawsuits than that since it became law in 2002.
“There’s been a trickle of suits, rather than a flood,” said Martha Derthick, a retired American government professor at the University of Virginia, in Charlottesville.
Robert Gordon, a senior fellow at the Center for American Progress, a Washington think tank, said a major reason is that the NCLB law does not include an express right for parents, or anyone else, to sue to enforce individual rights. There has been some discussion of including such a “private right of action” in the reauthorization of the law.
If that happened, the schools could face a flood of new lawsuits, conference participants said.
A version of this news article first appeared in The School Law Blog.