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:

Events

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
Artificial Intelligence Webinar
Managing AI in Schools: Practical Strategies for Districts
How should districts govern AI in schools? Learn practical strategies for policies, safety, transparency, and responsible adoption.
Content provided by Lightspeed Systems
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
Student Absenteeism Webinar
Turning Attendance Data Into Family Action
This California district cut chronic absenteeism in half. Learn how they used insight and early action to reach families and change outcomes.
Content provided by SchoolStatus
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
College & Workforce Readiness Webinar
Climb: A New Framework for Career Readiness in the Age of AI
Discover practical strategies to redefine career readiness in K–12 and move beyond credentials to develop true capability and character.
Content provided by Pearson

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 Measles Cases Are Rising. How Educators Can Protect Themselves
As some common childhood illnesses make a comeback in schools, here's what educators need to know.
3 min read
Anna Hicks prepares a measles, mumps, and rubella vaccine at the Andrews County Health Department on April 8, 2025, in Andrews, Texas. Measles is highly infectious and even some vaccinated teachers have reportedly been infected.
Anna Hicks prepares a measles, mumps, and rubella vaccine at the Andrews County Health Department on April 8, 2025, in Andrews, Texas. Measles is highly contagious and even some vaccinated teachers have reportedly caught the infection.
Annie Rice/AP
Teaching Profession K-12 Budgets Are Tightening. Teacher-Leadership Roles Are at Risk
The positions expanded with pandemic-aid funding. With money tighter, how can districts keep them?
5 min read
Teachers utilize a team teaching model, known as the Next Education Workforce Model, at Stevenson Elementary School in Mesa, Ariz., on Jan 30, 2025.
Teachers utilize a team-teaching model that spreads out teacher expertise and facilitates collaboration at Stevenson Elementary School in Mesa, Ariz., on Jan 30, 2025. Some of those models depend on having coaches and interventionists—positions that risk getting cut during lean budget times.
Adriana Zehbrauskas for Education Week
Teaching Profession How Teachers Across the Country Support Each Other in Times of Crisis
One Minnesota teacher received a touching display of support from a colleague 1,200 miles away.
4 min read
MINNEAPOLIS, MN, January 22, 2026: Ninth grade teacher Tracy Byrd helps a student with her final essay on the last day of the semester at Washburn High School in Minneapolis, MN.
Ninth grade teacher Tracy Byrd helps a student with her final essay on the last day of the semester at Washburn High School in Minneapolis on Jan. 22, 2026. Bryd, the 2025 Minnesota Teacher of the Year, has leaned on his network of state teachers of the year for support amid the challenges of increased immigration enforcement in the state.
Caroline Yang for Education Week
Teaching Profession How the Nation's Top Teachers Prevent Burnout
Finalists for Teacher of the Year give tips on keeping your sanity and enthusiasm in the classroom.
6 min read
Wallenberg after receiving a Shakespearean educator award.
Wallenberg after receiving a Shakespearean educator award.
Brandon Mitchell