Find your next job fast at the Jan. 28 Virtual Career Fair. Register now.
Teaching Profession

Undue Process

March 01, 2004 3 min read
Some educators tire of teaching in the shadow of lawsuits.

The threat of being sued has always been in the back of modern educators’ minds—a small voice warning them not to stray too far onto potentially litigious ground. But during the past few years, the field of education has come to resemble a legal minefield, and educators’ caution has metastasized, becoming outright paralysis.

That’s the conclusion of a bipartisan legal-reform group crusading against the “legal fear” that organizers say diverts schools’ attention from the mission of educating children. “It’s the anaconda in the chandelier that stares down and makes you refrain from saying what you would otherwise say,” said San Diego City Schools superintendent Alan D. Bersin. “We’ve created a due process system that defeats progress rather than serves it.”

Bersin was among the speakers at a forum held this past fall at the Brookings Institution in Washington, D.C., to discuss the question, “Is Law Undermining Public Education?” Organized by the New York City-based Common Good, the forum brought together social scientists and education leaders and released a report on the subject by Public Agenda, an opinion-research organization also based in New York City. Drawn mainly from research on three focus groups in Illinois and New York state, the study found that teachers and principals were highly concerned about accusations of abuse. Educators in the focus groups also voiced a strong belief that “litigation and due process requirements often give unreasonable people a way ‘to get their way.’” For many administrators, “avoiding lawsuits and fulfilling regulatory and due process requirements is a time-consuming and often frustrating part of the job,” the report says.

Common Good’s founder, New York City corporate lawyer and best- selling author Philip K. Howard, opened the forum with a call for support of his group’s “radical mission": to free people from being so worried about ending up in court that they “go through their day looking over their shoulder and stop doing what they think is right.... It diverts teachers from doing what they do best, which is to be themselves and focus on the children,” he said.

Richard Arum, a panelist and associate professor of sociology at New York University who wrote Judging School Discipline: The Crisis of Moral Authority, said the legal straitjacket many educators find themselves straining against is a fairly recent phenomenon. The legal climate for schools started to shift in the late 1960s and early 1970s, Arum said, when many students challenged disciplinary actions related to political protest or other free-speech issues. Because of legal precedents established during that era, he said, courts have since handled far more challenges to disciplinary actions stemming from general misbehavior, as well as incidents involving alcohol, drugs, weapons, and violence.

While the courts often side with schools in such cases, Arum said, they have fueled caution among educators about disciplining students.

No one on the panel urged a return to the way schools operated before the 1960s, however. Speakers were quick to laud the advances lawsuits have forced upon education over the years, from desegregation to the accommodation of disabled students. “Litigation in the realm of public education really does have an exceptionally honorable history,” said Deborah Wadsworth, the recently retired president of the nonpartisan Public Agenda. Still, she added, “it is also true that excessive litigation has teachers and principals literally walking on eggshells.”

It’s perhaps because of that honorable history, Wadsworth said, that educators are more hesitant than other frequently sued professionals to advocate reform. To many, the current situation seems “preferable to the days when students had no rights,” she told the forum. “They have concerns about tilting things in the other direction and are suspicious of the motives of people seeking change.” David Schoenbrod, a professor at New York Law School in New York City, said Congress should consider requiring limits and sunset provisions for court decrees on school issues. “We need something like a school litigation reform act,” he argued.

Yet for all the obstacles that lawsuits have created for educators, law itself may be the only remedy for excessive litigation. “I wish it would be easy to get out of the quagmire we’re in,” Bersin said. “But we are a system of laws, and it’s going to take the law to get us out of this.”

Caroline Hendrie

Related Tags:

Events

Teaching Live Online Discussion A Seat at the Table With Education Week: How Educators Can Respond to a Post-Truth Era
How do educators break through the noise of disinformation to teach lessons grounded in objective truth? Join to find out.
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.
Sponsor
School & District Management Webinar
The 4 Biggest Challenges of MTSS During Remote Learning: How Districts Are Adapting
Leaders share ways they have overcome the biggest obstacles of adapting a MTSS or RTI framework in a hybrid or remote learning environment.
Content provided by Panorama Education
Student Well-Being Online Summit Keeping Students and Teachers Motivated and Engaged
Join experts to learn how to address teacher morale, identify students with low engagement, and share what is working in remote learning.

EdWeek Top School Jobs

Join us for our NBOE 2021 Winter Teacher Virtual Interview Fair!
Newark, New Jersey
Newark Public Schools
Special Education Teacher
Chicago, Illinois
JCFS Chicago
Assistant Director of Technical Solutions
Working from home
EdGems Math LLC

Read Next

Teaching Profession Chicago Teachers Vote to Continue Remote Teaching
Chicago Teachers Union announced Sunday its members "overwhelmingly" chose to conduct only remote work beginning Monday.
Katherine Rosenberg-Douglas & Bill Ruthhart
4 min read
Elementary 1 teacher Melissa Vozar sits outside of Suder Elementary in Chicago to teach a virtual class on Jan. 11, 2021. The Chicago Teachers Union said that its members voted to defy an order to return to the classroom before they are vaccinated against the coronavirus, setting up a showdown with district officials who have said such a move would amount to an illegal strike.
Elementary 1 teacher Melissa Vozar sits outside of Suder Elementary in Chicago to teach a virtual class on Jan. 11, 2021. The Chicago Teachers Union said that its members voted to defy an order to return to the classroom before they are vaccinated against the coronavirus, setting up a showdown with district officials who have said such a move would amount to an illegal strike.
Anthony Vazquez/Chicago Sun-Times via AP
Teaching Profession After a Stillbirth, This Teacher Was Denied Paid Leave for Recovery. Here's Her Story
A District of Columbia teacher delivered a stillborn baby and was denied paid maternity leave. Her story, told here, is not uncommon.
6 min read
Illustration of a woman.
iStock/Getty
Teaching Profession Opinion What Your Students Will Remember About You
The best teachers care about students unconditionally but, at the same time, ask them to do things they can’t yet do.
2 min read
Images shows a stylized artistic landscape with soothing colors.
Getty
Teaching Profession High Risk for COVID-19 and Forced Back to Class: One Teacher's Story
One theater teacher in Austin has a serious heart condition and cancer, but was denied the ability to work remotely. Here is her story.
9 min read
Austin High School musical theater teacher and instructional coach Annie Dragoo has three underlying health conditions noted by the CDC as being high-risk for coronavirus complications, but was denied a waiver to continue working from home in 2021.
Austin High School musical theater teacher and instructional coach Annie Dragoo has three underlying health conditions noted by the CDC as being high-risk for coronavirus complications, but was denied a waiver to continue working from home in 2021.
Julia Robinson for Education Week