School Law vs. School Lore
Principals, along with teachers and the public, often have perceptions about key issues in school law that are remarkably wrong. Yet, principals help reinforce these prevailing misperceptions by sharing them with others, ultimately contributing to misguided practices and policies.
SOURCES OF CONFUSION
Where do principals get these misperceptions? The sources are many and varied. The mass media report sensationalized stories of school lawsuits, rarely providing intensive investigation and follow-up coverage. Other organizations share a self-interest in promoting the illusion of an “explosion” of education litigation, profiting from the resulting peril of liability. You can throw school insurance companies into this mix. Similarly but more subtly, teacher unions recruit and retain members by offering the dues “benefit” of professional liability insurance.
Tort reform groups and broader legal reform organizations such as Common Good use public school issues to promote government paralysis and a fear of legal consequences. Politicians respond with immunity laws such as the the Coverdell Teacher Protection Act. Even the school law profession, ranging from law firms representing school districts to the nonpartisan Education Law Association, benefits from skewed information that emphasizes specialized—and preventive—services. Moreover, special education professionals and other educators often confuse legal requirements with expert recommendations, in their efforts to promote misguided “best practices.”
The principalship is such a multifaceted and demanding position that the incumbents often do not have the time to keep up with the ever-changing and complex set of pertinent legal requirements, thus relying on outdated information and reinforcing peer hearsay.
To help alleviate some of that confusion, here are five examples of school lore—misperceptions about the volume and the outcomes of education litigation in America.
THE “EXPLOSION” OF EDUCATION LITIGATION
Contrary to the continuing perception, studies have shown the “boom” of education lawsuits was in the 1970s and the early 1980s, with an uneven, but gradual, decline during the rest of the 20th century. The first decade of the new millennium marked a moderate resurgence of overall education litigation, but that’s due to the rise of litigation in the federal courts. Moreover, contrary to the accompanying image of a booming specter of liability, the outcome trends for K-12 litigation and within the student and employee categories have been clearly in favor of school districts.
THE LESSON: Principals need to adopt a more particularized, prioritized basis for analyzing and responding to litigation patterns rather than having knee-jerk reactions.
THE NIGHTMARE OF NEGLIGENCE LIABILITY
Due to these misleading reports, it is not uncommon for educators generally and teachers particularly to have nightmares about being liable for negligence arising from student injury. Television and newspaper stories of student suicides and catastrophic student athletic injuries sometimes include reports of lawsuits against teachers, counselors and coaches for alleged negligence.
Yet, one only needs to look at the court decisions arising from such suits to see that students (the plaintiffs) won at least partial damages in only 11 percent of the cases. And in none of these cases was the individual defendant liable. One reason why? The defense of governmental and official immunity, which—contrary to the common conception—is far from dead doctrine in most states. Thus, even for the tragic area of student suicides, the plaintiffs have not fared well in court decisions premised on negligence. Similarly, for the specialized area of K-12 science teaching, including high school laboratories, the low volume and district-favorable outcomes of published court cases is contrary to the perception promoted by science education organizations and literature.
THE LESSON: There is good reason to take a preventive approach in risk-rich areas as a matter of student safety and professional ethics, but fear of liability is the wrong reason. Unfortunately, it is an overreaction that can actually cause a reduction in laboratory learning.
THE RISE OF STUDENTS’ RIGHTS
How often do we hear students proclaim, “It’s a free country, I can say whatever I want!” and “You can’t touch me!” They’d be surprised to learn that’s rarely the case. As an overall matter, the outcomes of K-12 litigation on behalf of students have shifted significantly to an even more district-favorable position from the late 1970s to the late 1990s. That trajectory has been in place since the 1969 student victory in Tinker v. Des Moines Community Independent School District. Similarly, various lines of law that concern touching students, e.g., negligence, battery and Section 1983 claims, generally favor the district defendants.
THE LESSON: The belief that teachers cannot touch students, including (but not limited to) reasonably intervening to stop student bullying, is lore, not law.
THE GUARANTEE OF JOB SECURITY
Contrary to the public perception that the law provides a Teflon shield protecting bad teachers and administrators, studies consistently show the opposite: A vast majority of court decisions where school leaders exercised their authority to evaluate and eliminate incompetent teachers ruled in favor of the defendant districts. Similarly and even more strongly, the case law was in favor of school boards that exercised their authority to terminate or take other disciplinary action against their superintendents.
THE LESSON: Time and again, courts have entitled school districts to exercise their legal authority when confronting internal personnel issues.
THE LEGAL PARALYSIS OF ADMINISTRATIVE ACTION
Another popular belief is that fear of litigation liability results in paralysis, preventing administrators from taking action against student violence. This vision causes public school personnel, including teachers and principals, to avoid interfering in student fights.
Yet, research reveals that legal liability is not a major factor for teachers when they calculate their response to student fights and that, based on the case law, the odds of teacher liability in the event of intervention or nonintervention are negligible—less than one in 40,000.
Likewise, there is a prevailing perception that public school educators are legally hamstrung from taking strong disciplinary action, such as suspensions and expulsions, against offending students, especially those in special education. Yet again, research reveals that the case law is the opposite of common conception; studies of student suspension cases among the general education population have found the courts have been extremely deferential to school districts. Similarly, although the legal protections for students with disabilities are more extensive, federal legislation does not generally apply to suspensions of up to 10 days, and the major legal safeguard for lengthier removals—determining whether the misconduct is a manifestation of the student’s disability—has generally not favored parents.
THE LESSON: Case law concerning functional behavioral assessments and behavior intervention plans under the Individuals with Disabilities Education Act has cumulatively moved in the direction of districts, revealing that professional recommendations should not be confused with legal requirements.
DISTRICTS WINNING MORE APPEALS
According to Perry Zirkel, university professor of education and law, special education is the most legalized segment of schooling in the United States. And much of that has to do with regulations laid out in the Individuals With Disabilities Education Act, or IDEA.
The law outlines a formalized process for determining such contentious matters as whether a child’s Individualized Education Program (IEP) provides a free appropriate public education (FAPE) in the least restrictive environment. It’s a matter that is often left to the courts, as parents strive to secure the most rights fo their children provided by IDEA.
Zirkel analyzed 65 hearing officer decisions in Illinois between 1982 and 2010 that were subject to a court appeal. His findings were significant: Not only were the outcomes skewed in favor of districts at both the hearing/review officer and court levels, but the outcomes upon judicial appeal were the same or largely unchanged for the vast majority of the issue rulings.
“The most practically significant finding of this study, however, was the pronounced propensity for the outcomes to remain stable upon appeal,” Zirkel writes in an Exceptional Children article. Both review officers and trial courts upheld earlier judicial outcomes in nearly three-quarters of all rulings.
Adapted with permission from an article published in the October 2012 issue of Principal Leadership, a publication of the National Association of Secondary School Principals.