One factor that undoubtedly plays a major role in weakening teacher quality and student discipline has received virtually no attention in the press: the burgeoning amount of litigation being brought by teachers and students against school districts and their administrators.
The largest number of suits are brought under one statute, the Civil Rights Act of 1871, a Reconstruction-era law intended to protect the rights of newly freed slaves. It was resurrected in the 1960’s as a means to bring suits for monetary damages against state and local officials for almost anything which could be construed as an interference with an individual’s Constitutional rights. Buttressed by another federal statute--the Civil Rights Attorney Fees Act of 1976, which orders the award of attorney’s fees to victorious plaintiffs in civil-rights cases--these suits make up the largest class of civil actions based on the United States Code.
In his book, Suing Government, the consumer-advocate Peter Schuck says the number of civil-rights suits in federal courts grew from 280 in 1960 to more than 27,000 in 1980--an increase of 9,578 percent. This litigation explosion cannot fail to have its effect on the educators (and other public employees) who are potential defendants.
Within education, many of these suits are being filed by teachers. These are not suits by teachers who are fired in the middle of their contracts, or who are protected by tenure. In both of these situations, the law places an understandably heavy burden on school boards, requiring them to show appropriate cause for dismissal, and to demonstrate that the dismissed teachers were provided procedural due process.
Rather, these are cases brought by nontenured or provisional teachers whose contracts are honored, but merely not renewed. To protect the public interest in providing good teaching, the law generally stipulates that such teachers can be replaced merely by giving them adequate notice that their contracts will not be renewed. In an ominously large number of cases, however, provisional teachers are suing not only for reinstatement, but for monetary damages--compensatory and punitive--against districts, board members, and administrators. Because the teachers are often provided with competent and experienced lawyers by their unions, these cases are being won--at least, enough of them are being won to make boards and administrators wary of any effort to upgrade teacher quality by replacing poor teachers with better ones.
One such case, Board of Education v. Vail, has reached the U.S. Supreme Court.
The Court this term decided to review a decision by the U.S. Court of Appeals for the Seventh Circuit, which upheld the claim of a nontenured high-school football coach who said that nonrenewal of his contract was a violation of his constitutional rights as protected under the Civil Rights Act of 1871.
The plaintiff was not tenured either as a teacher or as a coach, but a federal district court found that the school district’s nonrenewal of his contract--although there was no claim of racial or sexual bias or retaliation for the exercise of a constitutional right--violated his 14th Amendment rights. That court awarded him $19,850 in damages.
Most recently, such cases are being brought by teachers who have not even lost their jobs.
A Michigan teacher was suspended with pay following vigorous complaints by parents that he behaved improperly in his biology class and showed extreme insensitivity in teaching sex education. Following further investigation by the board, and negotiation with the teacher’s lawyer, the teacher was returned to the classroom the following semester with no loss of pay or privileges.
Nevertheless, the teacher sued in federal court, alleging violation of his rights under the Civil Rights Act of 1871, and demanding damages in excess of $10,000. Specifically, the teacher said the board violated his civil rights by denying his First Amendment right to choose his own teaching methods, and he argued that his suspension constituted improper retaliation for the free exercise of that right. Several motions by the defendants to dismiss these charges were refused, and the case was allowed to go to a jury, which awarded the teacher compensatory damages of $275,000 for injury to his reputation and $46,000 in punitive damages on the grounds that the violation of the teacher’s civil rights was committed with “knowledge and intent to harm.” Meanwhile, the teacher is still at his desk. A motion to reverse this verdict, or to reduce the damages, was refused.
In another recent case, a teacher in rural Wyoming had continuous wrangles with her principal over a period of years. One effort was made to discharge her but the board quickly backed off when she threatened to sue. Finally, the teacher asked for and was granted a year’s leave of absence without pay. At the end of the year, when the teacher requested a second year’s leave, the board refused. Instead of returning to school, the teacher sued, alleging harassment and abuse of her civil rights--again in retaliation for her exercise of freedom of speech, which in this case took the form of criticism of the principal.
Despite the fact that the teacher had never been discharged or demoted, she sought $3 million in damages, alleging not only injury to her professional reputation but “emotional injury” that would prevent her from ever working again at the position for which she was educated and trained. The district’s insurance company settled with her during the trial for $125,000. The principal’s insurance company refused to settle and a jury charged him with $113,000 in compensatory damages and $7,500 in punitive damages. If current efforts to overturn this verdict are unsuccessful, the teacher may return to the court for an award of attorney fees (to the union’s attorney) that could amount to $30,000 or more.
Attorneys have also become exceedingly creative in finding bases for suits by students.
A few months ago, a Louisiana student was told he would be suspended for truancy until he brought in one of his parents to discuss his case with the principal. The boy instead brought his older brother, a student who had earlier dropped out from the same high school.
When told that his attendance at the meeting was not sufficient, the brother became abusive and the principal told him he would have to leave. The principal then escorted him out of his office, down the stairs, out of the school, and to his car. That afternoon, the principal received a call from the police, asking him to come down and answer charges that he had physically assaulted and injured the student’s brother. These charges were promptly dismissed because of an absence of sufficient evidence, but a civil suit was then initiated against the principal. The older brother claimed that he had been “negligently pushed” by the principal on the stairs, that he fell as a result and injured his back, and that a witness (his girlfriend--supposedly waiting in the car) saw him limp from the building holding his back. The principal denied all of these charges, and an uninvolved student witness was found who attested that the plaintiff walked to his car in a normal manner.
Nevertheless, the school’s insurance company recommended that the district offer a settlement of $5,000 rather than defend the suit. The only reason the insurance company even came into play was because of the allegation of “negligent pushing"--whatever that may be. (Had the plaintiff claimed he was pushed intentionally, the insurance would not have been applicable.)
One might hope that most insurance companies would resist claims of this kind--unfortunately, some do not. Not only is this fact a detriment to student discipline, it also helps raise the costs of insurance for school districts.
Reports of such decisions and settlements are quickly circulated among members of the plaintiff’s bar and carefully studied with an eye to cases that may arise in the future. After reviewing a few of these cases, attorneys representing school districts might well be excused if they become cautious in advising their clients about what they can or cannot do in dealing both with teachers and students.
But there can be no question of the result for public education: a serious weakening of both the authority and the will of school boards and administrators to strengthen faculties or discipline students.
A principal faced with a lazy, “burned out,” or otherwise unsatisfactory teacher must think twice--or more--about attempting to seek a better replacement. Informal counseling, suggesting that the teacher might do better to seek other employment, can later be viewed as improper pressure and harassment, as can classroom visits or other efforts to verify the teacher’s shortcomings in order to support dismissal efforts. And if the teacher should happen to have real emotional or even physical problems, these may become the basis for large claims for monetary damages based on alleged aggravation of these emotional and physical conditions by the administrator.
If the administrator’s efforts took place over an extended period of time, or if he or she ever made the mistake of expressing irritation about the teacher’s situation, this may provide a basis for demands for punitive damages based on claims of malice and intentional harm. On the other hand, if the teacher has made critical remarks about the administrator or school system before efforts at removal are made, the teacher is sure to allege that the school’s actions were taken in retaliation for the teacher’s constitutionally protected right to freedom of expression under the First Amendment.
Almost any effort to discipline a student can give rise to similar allegations. Even if the suit can successfully be defended and damages avoided, the costs of legal representation are large, draining away funds from school districts that often are already hard-pressed for adequate funding. Equally draining is the amount of administrative time required by any lawsuit.
Faced with such costs in time and money, and with the specter of large personal damages always in the background, it is little wonder that many school boards and administrators will often look the other way when confronted with a weak teacher or recalcitrant student.
In recent years, the Supreme Court and some federal and state courts of appeal have cautioned the lower courts against excessive interference in the administration of public schools, but the decisions of the kind described here continue to roll out of the lower courts. Such decisions, and the increasing efforts of attorneys to take advantage of them, must play a large part in weakening any attempt to strengthen our public schools.
