School Climate & Safety Opinion

Courts and Schools: The Need for Discipline

By Perry A. Zirkel — August 22, 2008 5 min read
  • Save to favorites
  • Print

In the annual Phi Delta Kappa/Gallup Poll on attitudes toward the nation’s schools, the public has, for each of the past several years, ranked discipline among the top three “biggest” problems.

Periodically, a politician or pundit will publicly target the courts as being to blame for the discipline problems of public schools. In 1984, for example, Gary L. Bauer, then the Reagan administration’s deputy undersecretary of education, ignored contradictory research from the National Institute of Education and attributed disorder in the schools to 1970s-era judicial rulings on students’ rights.

In 2000, an editorial in The Boston Globe identified the U.S. Supreme Court’s 1975 decision in Goss v. Lopez as the primary culprit in undermining the authority of school administrators, accusing the court of having “imposed lengthy due-process requirements” for suspensions and expulsions. In December of 2003, the New York University sociologist Richard Arum furthered that argument, characterizing Goss and its lower-court progeny as having “extended rudimentary due-process rights for students facing even minor discipline,” such as “after-school ‘double detention,’ in-class ‘timeouts,’ lowered grades, and exclusion from weekend basketball or football games.”

Such scapegoating is based inappropriately on the undeniable truth that our society suffers from “hyper lexis,” defined broadly to include not only too many lawsuits, but also an excess in other forms of law, such as administrative regulations at the federal, state, and local levels. For several reasons, however, the problem of school discipline defies a simple causal attribution to the courts, much less to Goss v. Lopez.

The first of these is that the Goss decision was expressly limited to suspensions of public school students of from one to 10 days. For such cases, the court interpreted the 14th Amendment’s due-process clause as requiring school officials, as the most minimum form of notice and a hearing, to provide oral notice of the charges and, only if the student denies them, an explanation of the evidence and an opportunity to tell his or her side of the story.

Based on the court’s underlying “property” and “liberty” analysis, attributing this requirement to more minor forms of discipline, such as detentions and in-class timeouts, much less lower grades, is clearly questionable. Moreover, the court’s only reference to exclusions beyond 10 days was the majority’s dictum that “[l]onger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.”

A second reason is that successive studies to the early 1990s of post-Goss court decisions, including Professor Arum’s research, revealed that school defendants won a clear majority of the cases. Arum’s published research was based only on appellate court decisions until 1992; yet, their subject matter went well beyond Goss to student discipline generally.

Third, and most significantly, in a recently completed systematic study that was carefully limited to published court decisions specific to Goss v. Lopez from 1986 to 2005, a former Lehigh University student and I found the following:

• Although the suits continued unabated, the plaintiff students did not conclusively win any of the suspension rulings based on 14th Amendment procedural due process, that is, the pure Goss progeny. In only partial contrast, they had conclusive victories in 16 percent of the suspension rulings based on state laws, which expanded the procedural protections of Goss. For the relatively few student victories, the remedy in some cases was “corrected due process” (for example, a revised notice or new hearing), and in none was the remedy money damages.

• For cases of exclusions of more than 10 days that cited Goss, the plaintiff students won conclusively at a higher, but still far from robust, rate of 19 percent. Several of these rulings were based on state laws that extended well beyond the Goss court’s constitutional requirements.

• Students did not win any cases of detention, timeout, grading, or other relatively minor matters based on Goss.

The bottom-line conclusion is that diagnosing and prescribing remedies for the problem of school discipline warrants much more precision than broadly blaming law—and, of course, lawyers. As the venerable cartoon strip Pogo famously warned us, “We have met the enemy and he is us.” And this is more in the sense of responsibility than culpability.

The bottom-line conclusion is that diagnosing and prescribing remedies for the problem of school discipline warrants much more precision than broadly blaming law—and, of course, lawyers.

Let me explain. To the limited extent that school discipline problems may be correlated with, much less caused by, law, the source is not judicial interpretation of the Constitution. Instead, the connection is to procedural protections in state law that we have decided—perhaps correctly—to provide public school students facing suspension or expulsion. The connection extends to the complicated federal legislation and regulations for students with disabilities that attempt to provide a balance between institutional safety and individual dignity.

In Pennsylvania, for example, state regulations for regular education provide procedural requirements far beyond those of Goss, extending its application to in-school suspensions and adding—in stark contrast to prevailing federal court interpretations of the 14th Amendment—the rights of confrontation and cross-examination for exclusions beyond 10 days. Moreover, Pennsylvania’s special education regulations add significantly to the procedural requirements for disciplinary changes in the placement of students with disabilities, particularly (in light of the state’s exclusionary history) students with mental retardation.

It can be argued that in the long run such protections contribute to or compound problems of school discipline specifically, and public education generally. These issues merit reasoned policymaking and objective research, rather than cyclical finger-pointing rhetoric. Resolving the problem of school discipline requires more rigorous and rational self-discipline.

Related Tags:

A version of this article appeared in the August 27, 2008 edition of Education Week


This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Recruitment & Retention Webinar
Be the Change: Strategies to Make Year-Round Hiring Happen
Learn how to leverage actionable insights to diversify your recruiting efforts and successfully deploy a year-round recruiting plan.
Content provided by Frontline
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Equity & Diversity Webinar
Critical Ways Leaders Can Build a Culture of Belonging and Achievement
Explore innovative practices for using technology to build an environment of belonging and achievement for all staff and students.
Content provided by DreamBox Learning
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Professional Development Webinar
Strategies for Improving Student Outcomes with Teacher-Student Relationships
Explore strategies for strengthening teacher-student relationships and hear how districts are putting these methods into practice to support positive student outcomes.
Content provided by Panorama Education

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

School Climate & Safety 'Swatting' Calls and Lockdowns: Tips for Schools to Ease the Anxiety and Disruption
How school administrators can prepare for lockdowns and restore calm.
4 min read
A male police officer in a dark blue uniform walks between two white police SUVs parked in front of a three-story, red brick school building.
A police officer patrolled Glennwood Elementary School in Decatur, Ga., while the school was on lockdown in 2018.
John Amis/AP
School Climate & Safety 'Swatting' Hoaxes Disrupt Schools Across the Country. What Educators Need to Know
School lockdowns can cause stress to students, teachers, and families, even if threats don't materialize.
8 min read
A bald man and a woman with long brown hair tearfully hug a teen girl who is wearing a pale beighe backpack. Three women look on with concerned expressions.
A family shares a tearful reunion after Thomas Jefferson High School in San Antonio, Texas, went into lockdown because of a false report of a shooting.
Kin Man Hui/The San Antonio Express-News via AP
School Climate & Safety How to Spend $1 Billion in School Safety Funds: Here's What the Feds Recommend
A "Dear Colleague" letter from the Education Department puts a priority on creating inclusive, equitable school environments.
4 min read
The U.S. Department of Education urged schools to use federal funds to support the social, emotional, mental, and physical health needs of students in a "dear colleague" letter sent Sept. 15.
Third grader Alexis Kelliher points to her feelings while visiting a sensory room at Williams Elementary School in Topeka, Kan.
Charlie Riedel/AP