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FEATURE
"See You in Court!"

The words every administrator hates can be avoided if you know how to play the game. Here's how.
Ron SchachterDistrict Administration, Apr 2007
4/1/2007


Almost every school attorney-and plenty of school administrators-can tell you about a lawsuit that seems right out of a Franz Kafka novel. In one case, "a girl's father sued because she wasn't allowed to sit at the lunch table she wanted," says Tom Hutton, the staff attorney for the National School Boards Association. Another suit charged that a teacher had assigned too much summer homework.

"It's a huge problem," adds Florida attorney John Bowen, who has practiced school law since 1973 and says that at any one time he has to deal with as many as 10 lawsuits against his district of Manatee County Schools.

"In Florida, we've spent millions and millions of dollars defending against lawsuits," he says. "We've had lawsuits on who should be the valedictorian of one high school, and we're sued over dress codes ... We've even been sued over what we serve in our cafeteria," he adds.

Two years ago the South Orange and Maplewood School District in New Jersey was taken to federal court for excluding traditional Christmas music from holiday concerts.

The list goes on, from litigation over workers compensation and unlawful firings, to personal injuries on playgrounds and school buses, to searches and arrests of students on school property.

In a society plagued by more and more lawsuits, some educational experts say that merely the prospect of legal action is altering the way schools do business, especially in the areas of discipline, special education, and free speech rights.

"Even if there's not a court case, the threat of one can have a very chilling effect on school practices," claims Richard Arum, associate professor of sociology at New York University and the author of Judging School Discipline: The Crisis of Moral Authority.

"The threat of litigation is where the real action is," agrees Hutton, whose NSBA Council of School Attorneys program serves 3,000 school attorneys with legal updates and research, seminars and an online community. "That imposes great costs on schools," he continues, especially for educators and administrators who must seek expensive legal advice.

"The system is set up to be very litigious," Hutton says. "It's premised on children and their guardians having legal rights ... It puts schools and parents in adversarial positions."

The Age of Student Rights

Lawsuit-driven student and parental attitudes date back almost forty years, notes Arum, when liberal-leaning courts of the 1960s challenged some of the fundamental tenets of teaching. "Courts established that juveniles were entitled to due process, and the same logic extended to schools, where you could no longer assume that administrators were acting in the best interests of the child," Arum explains. "The logic of in loco parentis was seriously eroded."

In the 1969 case of Tinker v. Des Moines Independent Community School District, for instance, the U.S. Supreme Court decided that students had constitutional rights as minors and ruled that the district had violated the rights of three high school students punished for wearing black armbands protesting the Vietnam War.

"In Florida, we've spent millions and millions of dollars defending against lawsuits. We've had lawsuits on who should be the valedictorian of one high school, and we're sued over dress codes ... We've even been sued over what we serve in our cafeteria." -John Bowen, attorney for the Manatee County School District, Florida
Also in 1969, in Sullivan v. Houston Independent School District, a federal court ruled that two students expelled for publishing an underground newspaper had been denied due process.

As a result of these cases, longstanding approaches to discipline and rules in areas such as dress code and student speech came under greater scrutiny and more frequent attack. By 1999, the American Tort Reform Association reported that 25 percent of 500 principals surveyed had been involved in lawsuits or out-of-court settlements during the previous two years.

Perry Zirkel, professor of education and law at Lehigh University in Pennsylvania, says that school lawsuits reached a plateau in the 1980s and 1990s and even started to decline at the beginning of this decade.

"But what they're asking for has gotten larger," Zirkel adds. "And the fact is we're still spending tens of millions of dollars on litigation."

In 1998, a study by the Association for California Tort Reform found that the costs of civil liability litigation on California's public schools added up to $80 million a year.

A Thin Line to Walk

While the total number of lawsuits is leveling off, cases involving either the First Amendment or special education have multiplied in recent years, and groups that file suit ask for more money. When it comes to free speech, especially religious speech, says Hutton, "the courts are loath to draw a bright line. They decide on a case-by-case basis."

Manatee's attorney, Bowen, sees the situation as more of a minefield for educators. "They're having to make decisions on a child wearing a T-shirt quoting Bibles verse on homosexuality," he suggests. "If you don't stop him, you may be creating a hostile learning environment. If you do stop him, you may be violating his First Amendment right to speak out."

That's just what North Carolina attorney Richard Schwartz encountered while defending rural Midway High School. In response to a gay, lesbian and bisexual tolerance program, one student planned to wear a T-shirt and distribute literature promoting the opposing viewpoint.

Principal Gaynor Canady-Hammond said, "You'll be written up for insubordination," Schwartz recalls. The student received one day of in-school suspension, which led to a federal lawsuit against the Sampson County School Board by the Alliance Defense Fund, a conservative nonprofit group, last May.

"You're likely to get sued from either direction," Hutton adds. "If you move five degrees in one direction, the ACLU sues you. If you move 5 degrees in the other direction, you can get sued by some religious group."