Teaching Profession

Undue Process

March 01, 2004 3 min read
  • Save to favorites
  • Print
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:


Recruitment & Retention Live Online Discussion A Seat at the Table: Chronic Teacher Shortage: Where Do We Go From Here?  
Join Peter DeWitt, Michael Fullan, and guests for expert insights into finding solutions for the teacher shortage.
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.
Student Achievement Webinar
Mission Possible: Saving Time While Improving Student Outcomes
Learn how district leaders are maximizing instructional time and finding the best resources for student success through their MTSS framework.
Content provided by Panorama Education
Reading & Literacy K-12 Essentials Forum Writing and the Science of Reading
Join us for this free event as we highlight and discuss the intersection of reading and writing with Education Week reporters and expert guests.

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

Teaching Profession 9 FAQs on Tax Savings for Teachers
Here's how to claim education expense deductions and one other possible break for teachers.
4 min read
Blurred IRS Tax Return Form 1040 and close up crop of a dollar bill
Teaching Profession Meet the 5 Teachers Being Considered for National Teacher of the Year
From P.E. to culturally responsive teaching, the finalists all find ways to connect to their students.
7 min read
National Teachers of the Year
Clockwise from top left: Carolyn Kielma from Connecticut, Jermar Rountree from D.C., Rebecka Peterson from Oklahoma, Harlee Harvey from Alaska, Kimberly Radostits from Illinois
Teaching Profession Scared, Anxious, Worried: States’ New Restrictions Have Teachers on Edge
Even math and science teachers say they're self-censoring and frightened about falling afoul of the policies.
6 min read
Image of caution tape near the teacher's desk in the classroom.
enjoynz/DigitalVision Vectors + EdWeek
Teaching Profession Morning Rituals Educators Swear By to Start the Day Right
From yoga and exercise to greeting each student by name, educators share their best tips for a great start to the school day.
1 min read
Image of a clock on a spiral notebook.