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Press Release

    Teachers, Principals or Lawyers?

    09/16/1999

    Reprinted with permission from Investor's Business Daily

    Like your pants extra baggy? Good thing you're not going to school in Boone County, Ky., where one high school has banned students from wearing pants that drag on the floor.

    Not just because they're sloppy. Because someone could trip and get hurt. And then sue.

    Schools' fear of lawsuits is hardly confined to such trivial matters. In fact, actual lawsuits and the fear of them are remaking school policies on everything from school discipline to science lab, from what kids can eat for lunch to what they can do in gym class.

    Such lawsuits can cost school districts - and the taxpayers who pick up the bill - a good chunk of money. And a growing chorus of educators argues that it undermines what it takes to run a good school.

    Lawsuits against schools are hardly new, and many involve weighty constitutional questions.

    It was a lawsuit, after all, that helped end segregation of students by race. And parents sometimes find they can't change school policies without lawsuits.

    A recent survey of school principals found that 31% of high-school principals had faced lawsuits or out-of-court settlements within the past two years -up from less than 10% a decade ago. And 65% changed some school programs due to liability concerns.

    "Whenever we plan for anything in a school today, our first consideration is how to avoid a lawsuit," said Vincent Ferrandino, the head of the National Association of Elementary School Principals, a sponsor of the survey.

    Some research casts doubt on the claim that lawsuits against schools are piling up in the courts. Perry Zirkel of Lehigh University in Bethlehem, Pa., figures the actual number of lawsuits has edged down since the 1970s.

    Still, the cost of losing a case can be catastrophic.

    Taxpayers in Ann Arbor, Mich., are staring at an expected $ 30 million judgment against the school district. Why? Substitute teachers sued, arguing a policy requiring them to waive rights to future full-time jobs broke state law.

    Most lawsuits don't cost that much.

    The National Association of Secondary School Principals estimates large school districts with more than 10,000 students typically spend $ 250,000 to $ 1 million a year on routine legal matters. Just one lawsuit can cost $ 50,000 to $ 100,000 - a huge cost for small districts.

    For large districts, that can also be a lot of money, given that fixed costs -such as for teacher salaries and capital expenses - take up two- thirds of the typical yearly budget, according to Education Department data. Another large chunk of funds is often earmarked by lawmakers for special programs.

    "Even $ 50,000 is a lot of textbooks," said Anne Bryant, who heads the National School Boards Association. "This money comes right out of the hide of students. Just the threat of a lawsuit can be as damaging as the real thing because it undermines the ability of school districts to use common sense."

    Take the school discipline issue. School officials who fear being hit with lawsuits by parents who think their kids are being disciplined unfairly are adopting zero-tolerance policies for all kinds of behavior - with often absurd results.

    The Fairborn, Ohio, school district's zero-tolerance drug and alcohol policy sent a 13-year-old honors student to "chemical evaluation" - for using Midol she took from a friend.

    Only by doing that could she avoid an 80-day expulsion. Why be so inflexible? The district wanted to avoid a lawsuit.

    And in Salisbury, Md., a 10-year-old boy got in trouble for snapping classmates' bras. The result: suspension from school and four counts of second-degree assault. Why the harsh response? The district feared a sexual harassment suit.

    Overkill like this stems in part from legal challenges to school discipline, Bryant says. School districts often feel that if they allow exceptions, they'll invite legal challenges in cases where discipline is truly warranted.

    In the area of sexual harassment, the threat of lawsuits may be about to get worse. A Supreme Court decision earlier this year - Davis vs. Monroe County Board of Education - found that students can sue school boards in cases of sexual harassment by other students.

    School districts have their fingers crossed that the decision will keep most claims from making it to court. Others believe the court left enough ambiguity to invite a torrent of lawsuits.

    The decision said a school district could defend itself if its response to a complaint was "not clearly unreasonable." And whether students could sue would "depend on a constellation of surrounding circumstances."

    "The legal pitfalls are much more systematic and extreme if someone sues school districts for sexual harassment than for overzealous discipline," said Walter Olson, a legal expert at the Manhattan Institute.

    Another reason why schools adopt such zero-tolerance policies is that the threat of lawsuits over the past two decades has made it tough for schools to discipline students effectively, says Massachusetts State School Board member Abigail Thernstrom, in a study for the Brookings Institution.

    A series of key Supreme Court cases in the 1970s gave students the right to some form of due process when schools disciplined them. The upshot? Standard disciplinary decisions since then have become constitutional questions open to lawsuits.

    In a response to her paper, a former superintendent of schools in Fairfax County, Va., pointed out that students facing suspension or expulsion from school had more avenues of appeal than a convicted felon.

    And students who don't want a record of discipline can often sue to get out of their punishment on procedural grounds, even without challenging the truth of the charges.

    In Arlington, Texas, the families of 10 high-school students sued the district for suspending them from extracurricular activities. The teens had been caught drinking off-campus, which violated behavior codes set up by athletic coaches and sponsors of after-school programs.

    But district officials hadn't OK'd the codes of conduct. So the students were let back in school. And more: The district wrote them letters of apology and paid their parents $ 15,000 in legal fees.

    David Storm, general counsel for the American Federation of Teachers, adds teachers are often afraid of breaking up fights among students, for fear they'll be sued for using "excessive force."

    Texas teachers' unions are in the middle of an "arms race" to outbid each other on who can offer the most liability insurance to potential members, said John Cole, president of the Texas Federation of Teachers.

    "Bidding has reached $10 million -up from the $1 million offered by most teachers unions. Cole notes the TFT has never paid a claim even close to $1 million."

    "Teachers have to ask themselves, 'Will I have to write up a 200-page report every time I break up a fight?'" Cole said. "And when students know there are no consequences for their actions, it's very hard to control a classroom."

    Schools can't do much to discipline special-education students at all without the potential for lawsuits. Federal rules state that schools can't suspend a special-ed student for more than 10 days without lengthy hearings if the cause for discipline is disability-related and the student is deemed dangerous to others.

    And where special-education students go to school - in a regular classroom, a separate class or a private school - is another fertile area for lawsuits. Not surprisingly, parents and districts often have different ideas about that.

    Fear of litigation is also changing what happens inside the classroom.

    A recent report in the St. Petersburg (Fla.) Times found science teachers reluctant to let kids do dissections that required scalpels for fear of accidents. Also gone was a time-honored experiment where kids scrape cells off the inside of their cheek and examine them under a microscope - for fear of someone contracting HIV or hepatitis.

    The survey of principals found instances where schools canned driver's ed and shop programs and banned sports like baseball and football - all for fear of lawsuits. And many districts around the country ban peanut-butter sandwiches, so a child who is allergic can't come into contact with it.

    The AFT's Storm doubts the trend is causing education to grind to a halt.

    "It has not gotten to the point of gridlock and paralysis," he said. "I would not say that all litigation is bad. There are many areas where this is healthy and has helped force larger systemic changes."