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School Climate & Safety Commentary

Courts and Schools: The Need for Discipline

By Perry A. Zirkel — August 22, 2008 5 min read

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.

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

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