Due-Process Rulings Have Hurt Schools, Justice Says
A "rights revolution'' that has expanded the guarantee of due process of law for schoolchildren and the urban poor since the early 1970's has resulted in a decline in individual responsibility and has hampered government efforts to improve education and deal with other social ills, participants at a conference here last week argued.
Speaking at the session convened by two conservative public-policy groups, the Federalist Society and the Manhattan Institute, Associate Justice Clarence Thomas of the U.S. Supreme Court seemed to accept the premise that the so-called revolution in individual rights has contributed to a breakdown in order in the public schools.
"Why are so many of our schools devoid of the discipline that is absolutely necessary'' for learning to take place? Justice Thomas asked in a rare public address.
"Young children cannot learn in our schools if they are constantly besieged by drugs and threats of violence,'' he said.
Court decisions that have required greater due-process protections for students "have had an incredible effect'' on school principals' ability to maintain order in urban schools, Justice Thomas said.
"Would the lawyers and judges making these decisions want to live under these conditions in the inner cities?'' he asked.
More Violent Schools
The conference opened with the premise that the expansion of due-process rights for the urban poor began with a 1970 Supreme Court decision, Goldberg v. Kelly, that held that welfare recipients could not have their benefits terminated without a hearing.
The conference examined the debate over anti-panhandling laws, anti-loitering laws aimed at drug dealers, recent efforts to undertake broad searches of public housing for illegal weapons, and the expansion of the due-process rights of public school students.
U.S. Circuit Judge J. Harvie Wilkinson 3rd argued that the Supreme Court's expansion of student due-process rights in the 1970's has been one cause of the steady rise in violence in public schools. He cited such cases as Goss v. Lopez, a 1975 decision that requires students suspended up to 10 days to be given a due-process hearing, and Wood v. Strickland, another 1975 decision, which expanded the liability of school officials under a federal civil-rights law.
"The rights revolution has failed to communicate responsibility,'' said Judge Wilkinson, an appointee of President Reagan to the U.S. Court of Appeals for the Fourth Circuit.
Judge Wilkinson also argued that time spent by educators responding to lawsuits filed on behalf of students interferes with their primary responsibility to educate all students.
"Time in court is time out of the classroom,'' he said.
Irving Kristol, a co-editor of The Public Interest and a noted conservative commentator, argued that there is too much concern for students' rights and not enough for improving the schools.
"Why are there so many lawyers and judges out there helping to wreck our educational system?'' he asked.
But Nadine Strossen, the president of the American Civil Liberties Union, responded that school discipline has too often in the past been administered in a racially discriminatory way.
"Procedural safeguards are necessary to reduce arbitrary treatment,'' she told the conference. "Denying students even the minimal due-process guarantee of Goss v. Lopez not only impairs their vital rights, but also makes no contribution to education.''
A Lack of Responsibility
Justice Thomas argued that the same ideas that led to the "rights revolution'' and the expansion of student rights have made it more difficult for the criminal-justice system to hold individuals accountable for their actions.
"Once our legal system accepted the general premise that social conditions and upbringing could be excuses for harmful conduct, the range of causes that might prevent society from holding anyone accountable for his actions might be limitless,'' he said.
He added that, in the long run, "a society that abandons personal responsibility will lose its moral sense, and it is the urban poor whose lives are being destroyed most by this loss of moral sense.''
Vol. 13, Issue 35