Sometimes, Settling Is the Best Policy

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When Peter Riera's parents sued the Palm Beach County, Fla., school district earlier this year over their son's right to wear a Cuban-flag necklace, school board members at first dug in their heels.

They said it was important to back administrators who had told the boy he could not wear the multicolored necklace because they viewed it as a gang symbol. But the board was eventually persuaded by its lawyers to settle the lawsuit for $20,000 in legal fees.

Without a clearly expressed policy prohibiting gang apparel, "we were exposed to liability," said Cynthia Prettyman, the district's general counsel. "What's the point of taking an issue to court that you know you are going to lose?"

When it comes to responding to lawsuits, districts must know when to hold their cards and know when to fold them, school law experts say.

The Piscataway, N.J., school board folded its hand late last month in a high-stakes race-discrimination case involving a white teacher who was laid off in 1989 in favor of a black colleague.

Just weeks before the case was to be argued before the U.S. Supreme Court, a coalition of civil rights groups put up 70 percent of the board's $433,500 settlement with Sharon Taxman, the white teacher who argued that her race-based layoff violated federal anti-discrimination law.

The civil rights coalition, led partly by the Rev. Jesse L. Jackson Sr., raised money among the civil rights community and from businesses who feared the high court would use the Piscataway case to undermine long-settled affirmative action precedents. ("N.J. District Settles Case on Race Bias," Nov. 26, 1997.)

Out of Court

The timing of the Piscataway settlement was unusual. When a lawsuit against a school board is settled, it typically happens in the early stages of the legal process to ward off the high costs of protracted litigation.

"Cost is the major factor," said Martin Semple, a Denver lawyer who represents several Colorado districts. "If you can settle a case for $5,000 and an apology versus litigating when you know it is going to cost $20,000 to $30,000, then that's where you have to look at the realities."

Insurance companies usually play an influential role in such decisions, since they often foot all or most of a district's legal bills.

"The insurance carrier is always interested in cutting losses," said August W. Steinhilber, the general counsel of the National School Boards Association.

While legal trends are difficult to quantify, a computer search of the Nexis newspaper database, made up of publications from across the country, reveals scores of stories about settlements involving school districts just in the past year. For example:

  • The Kettle Moraine, Wis., district in September agreed to pay $13,000 to settle a suit filed on behalf of a student who was beaten at a local mall while on a school field trip.
  • The Pomona, Calif., district agreed last February to settle a lawsuit filed by a teacher who objected to her school's ban on female teachers' wearing pants. The teacher got $10,000 plus legal fees.
  • In St. Tammany Parish, La., the school district and its insurance company earlier this year settled for more than $500,000 a suit in which two former employees charged the superintendent with sexual harassment.

As often happens with settlements, the St. Tammany district sought to keep the financial details of the agreement confidential. But local news organizations just as often fight such arrangements by seeking full disclosure.

In June, a federal judge agreed with lawyers representing the New Orleans Times-Picayune that it was in the public interest to take the wraps off the St. Tammany settlement.

A state judge in Maine issued a similar ruling in a lawsuit against School Administrative District No. 6 in the town of Bar Mills. The district sought to keep confidential the details of its $183,000 out-of-court settlement of a suit involving sexual harassment of a Bonney Eagle High School student by one of her teachers.

Melissa Hewey, the lawyer for the district, said the settlement decision was made by its insurer, Coregis Insurance Co.

"The district had no input into the amount," she said, arguing that it should not be required to reveal the financial details.

But the judge said that Coregis was acting in the district's interests and that the settlement documents "are connected with the transaction of public business."

Damaging Testimony

Of course, school districts and their insurers aren't likely to roll over and settle any claim that comes along. Districts can rely on a variety of strong legal defenses, such as qualified immunity for district officials. Qualified immunity is protection from liability for school officials who act in good faith within their authority.

The decision to settle sometimes isn't made until after an adverse legal ruling or development. In one of the most widely publicized settlements of recent years, the Ashland, Wis., district agreed in November 1996 to pay more than $900,000 to settle a suit brought on behalf of Jamie Nabozny, a former student who alleged that administrators failed to respond to abuse he suffered in school because he is gay. The district made the settlement offer after a federal court jury had ruled against it in the trial's liability phase and was about to consider damages.

Sometimes, school officials become convinced that settling a suit is required to prevent embarrassing revelations about employees or students.

In Arlington, Texas, this year, the families of 10 Martin High School students sued the district after the students were punished for participating in an off-campus drinking party.

The students were suspended from extracurricular activities such as the volleyball team and the student council in accordance with codes of conduct set by coaches and club sponsors.

Charlene Robertson, a spokeswoman for the Arlington district, said school board policy at the time allowed each coach or sponsor to set such codes as long as they were approved by the superintendent.

Since the codes involving the Martin students had not been approved, "that is what really came back to kick us," Ms. Robertson said.

Lawyers for the plaintiffs also made it known that they planned to raise questions about the personal lives of the volleyball coach and student council sponsor, to suggest that they were not "morally fit" to punish the students for drinking.

"Our superintendent put a halt to [the suit]," Ms. Robertson said. "She said we are not going to have that happen."

The district settled the lawsuit for $15,000 in legal fees and an agreement to have the principal write letters of apology to the students. The district also adopted a districtwide student conduct code.

Clay Roark, a lawyer for the students, had a slightly different interpretation. He said the district likely settled the case because it faced a contempt ruling for continuing to discipline the students for the off-campus drinking party after officials signed a temporary court agreement promising not to do so.

Boca Battle

The Cuban-flag case began last March when Peter Riera, a student at Boca Raton (Fla.) High School, wore the red, white, and blue necklace he had purchased at a Miami street festival.

School officials sent him home, arguing that the colors represented those of a local gang and that the necklace might disrupt school.

Within days, the American Civil Liberties Union had sued on Mr. Riera's behalf, contending that the school violated the boy's First Amendment right of free expression.

Ms. Prettyman, the district's lawyer, told board members that they were on shaky legal ground because of a recent federal appeals court ruling that had struck down an Iowa district's gang policy as overly vague.

The lawyers for both sides negotiated a settlement in which the district would pay for the Riera family's legal fees and promise to write a more detailed gang-apparel policy.

But at an April meeting, the Palm Beach County school board rejected the settlement on a 3-2 vote.

"Sometimes it's more important to fight than to win," board member Bob Hayes was quoted as saying at the time. "It's more important that we send the message that we're still in control."

The board consulted an outside law firm about defending the prohibition on the necklace. But by midsummer, it gave in and settled the suit.

James K. Green, the Rieras' lawyer, said school officials should have just ignored the necklace.

"Some kids do things just to irritate adults," he said.

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