Law & Courts Commentary

Principals: An Antidote to Educational Malpractice

By David Schimmel, Matthew Militello & Suzanne Eckes — June 07, 2011 6 min read

“You’ll hear from my lawyer,” or “I’m going to sue you!”

Statements like these are made regularly in schools around the country. Though they often are hollow threats, they nevertheless can have a paralyzing effect on educators. This is because a vast majority of teachers (85 percent, according to our research) have not taken any course on school law. As a result, most are uninformed or misinformed about their rights and responsibilities and those of their students. Allowing such a lack of knowledge to exist and failing to do anything about it is a form of educational malpractice, in our view. We believe most schools are guilty of such malpractice, even though a solution lies within schools themselves—the school principal.

Although teaching law is not in their job description, principals already are the chief law teachers in their schools. This is because most principals frequently give legal advice—in staff meetings, in informal conversations, and in the way they develop, interpret, and enforce school rules. While this advice is often appropriate, there are many times when it is confusing, misleading, incomplete, or even incorrect. Such advice (or lack of advice) often leads to two types of mistakes by teachers: 1) failing to take disciplinary action when they should, and 2) unintentionally violating students’ rights when they should not.

Legal Illiteracy’s Results. First, the failure to act is often the result of oversimplified administrative warnings. In a national survey of secondary school principals that two of us conducted with our colleague H. Jake Eberwein and the National Association of Secondary School Principals in 2007, we found that the frequent legal advice principals give to teachers is “Don’t touch students.” Because of this and many other “thou shalt nots,” teachers view law as a source of anxiety and fear. Thus, a 3rd grade teacher reported that he does not break up fights among his students because he’s afraid that, if he does, and a student is injured, he could be sued and held liable for the injury.

Although teaching law is not in their job description, principals already are the chief law teachers in their schools."

This widespread belief among teachers that any touching of students involves inherent legal dangers persists despite the fact that it is always legal and appropriate for teachers to use reasonable force to protect their students and themselves. Additionally, there are state and federal laws that protect teachers from being held liable in these situations.

Second, most teachers are not aware that they function as agents of the government and are therefore restrained by the Bill of Rights. As a result, teachers may unintentionally violate students’ constitutional rights when they order them to stand for the Pledge of Allegiance, search their backpacks for possible contraband without reasonable suspicion, or prohibit them from distributing “controversial” political or religious pamphlets to classmates.

Teachers’ lack of awareness of students’ rights can cause friction, frustration, and possible litigation. A high school principal illustrated this problem when she explained that one of her teachers had recently sent a student to her office to be suspended for refusing to take off an “offensive” T-shirt that said the president was an “international terrorist.” Since the principal knew the student had a First Amendment right to wear the shirt because it had caused no disruption, she refused to suspend him. As a result, the teacher felt embarrassed and unsupported by her principal. However, if the principal had “supported” her teacher and suspended the student, there might have been a conflict with the parents and a possible lawsuit—which the school likely would have lost.

In sum, legally illiterate teachers may fail to take appropriate action: ignoring misbehavior, permitting disruptions, or rescinding discipline because of meritless threats by parents or students. In addition, when teachers are unaware of how the Bill of Rights protects students, they may unintentionally violate students’ rights regarding free speech, due process, or search and seizure. The negative consequences are often compounded by the fact that teachers receive much of their legal advice from other teachers who are similarly uninformed or misinformed.

Benefits of Legal Literacy. If principals teach the basic principles of school law as a regular part of their teachers’ professional development, numerous positive results can follow. For example, when teachers understand the laws that govern discipline and the reasonable use of force, they will not be afraid to break up a fight because of unfounded fears they could be held personally liable if a student is hurt. Furthermore, if public school teachers understand that they are agents of the government and therefore constrained by the U.S. Constitution, they are likely to think and consult with their principal before they search a student or demand that a student take off a controversial T-shirt.

The Missing Link. The costs of legal illiteracy are high. In addition to the money and time spent to prepare for possible lawsuits, there are the many unfortunate decisions made in every school district every day that are based on legal misinformation.

We believe the principal can be an antidote to this educational malpractice. Unfortunately, most current principals do not feel they have the knowledge or the materials they need to teach their staffs about school law. That’s why there’s a need for materials designed explicitly to enable principals to be informed and effective law teachers.

There are several ways to change this situation. First, school law courses for future administrators could add a unit on how to teach critical legal issues to staff members. Second, school lawyers, who usually become involved after a legal problem arises, could develop lawyer-principal partnerships to teach teachers and administrators how to practice preventive law. Finally, through our work we have learned that principals themselves can use ready-made lessons to help them incorporate school law into their in-service programs, which will in turn help all their teachers become legally literate.

The Principal Solution. When principals become effective law teachers, their staffs get the information they need from knowledgeable sources, not from the myths and rumors of the Teachers’ Lounge Law School. As practitioners of preventive law, teachers will know when to consult with informed administrators. And, by having a legally literate staff, principals will benefit from a reduction in legal mistakes and misunderstandings by teachers. This should reducethe time and energy principals now must devote to dealing with teachers’ confusion and should prevent parental complaints, threats, and possible litigation—freeing principals to focus on quality teaching and learning.

Further, legally literate teachers will no longer see themselves as potential victims of the law, and, instead will be able, in a constructive sense, to “take the law into their own hands.” As a result, they will also be able, in partnership with their principals, to uphold the law with confidence and feel empowered to protect their students, their schools, and themselves.

In sum, one solution to educational malpractice based on teachers’ lack of legal knowledge is the school principal. There is no need to go elsewhere—just look down the hall to the principal’s office.

A version of this article appeared in the June 08, 2011 edition of Education Week as Principals: An Antidote to Educational Malpractice


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