Are schools more afraid of lawsuits than they should be?

An education-law expert says the perception that schools are under siege from courts isn't the case

When Perry Zirkel conducts a seminar on education law, he likes to start with a pop quiz.

The education-law specialist, who teaches at Lehigh University in Bethlehem, Pa., describes lawsuits involving public school districts that have come before US courts. He then asks his listeners - often a group of school administrators - to guess if the case was resolved in favor of the school district or against it.

Professor Zirkel used to tally up the number of incorrect responses, but he doesn't bother anymore. He now knows without checking that his audience will almost always guess that the school system lost - and they will usually be wrong.

It's a case of what he calls "law v. lore." Most of the public, Zirkel says, including school administrators and teachers, have the impression that schools today are constantly under siege from the courts.

And yet, Zirkel insists, the truth is that US courts today are significantly more likely to favor schools than either students or teachers - two major sets of plaintiffs against schools.

It's certainly not a point of view all school administrators share. Many, instead, have a sense of being in constant peril from lawsuits. They tend to believe the rights of students and their parents, and even of negligent or incompetent teachers, are granted more protection than those of the schools.

And yet, says Zirkel, who makes it his business to track and quantify as many education-law cases as possible, the exact opposite is true. Over the past couple of decades, courts have actually moved further and further toward supporting schools.

Special education and religion, Zirkel concedes, are two areas where legal decisions are more mixed.

"They are both areas where it's very hard for the courts to be objective," he says. No one likes to rule against children with disabilities, and even the hardest-headed judges have trouble keeping their own feelings about religion out of their decisions.

Yet even in the problematic area of special ed, he has found, school systems still win more often than they lose. Schools also face fewer court cases than the public imagines. Despite widespread public perception to the contrary, he says the total number of lawsuits brought against schools has actually tapered off in recent years.

Some kinds of cases (suits involving desegregation, for instance) have practically disappeared from court dockets in the past couple decades.

When it comes to questions of student rights, however, students and schools continue to find themselves frequently at impasses, and the number of cases remains significant.

But Zirkel says that the way the courts are handling these cases has undergone a marked change.

It takes only a quick glance at four landmark US Supreme Court decisions over the past few decades, he suggests, to notice that when it comes to questions of student rights and responsibilities, the nation's highest court has shifted significantly toward championing the rights of the schools instead.

One of the first major school cases ever tackled by the Supreme Court was Tinker v. Des Moines Independent Community School District in 1969.

In that case, three students were suspended from an Iowa school for wearing black armbands to protest the Vietnam war. At that time, the rather liberal court famously decided that students "do not shed their constitutional rights ... at the schoolhouse gate" and supported their right to free expression.

Then, in 1975, the Supreme Court heard Goss v. Lopez, an Ohio case that challenged the right of a school system to suspend students without first allowing them the right to defend themselves. The court recognized the rights of students to some form of due process (and even legal representation, in certain cases) before a school could suspend them.

Conservative commentators predicted doom at that point, Zirkel says. They insisted that such a decision would tie the hands of schools - and erode their rights - to a dangerous degree.

The Tinker and Goss cases, says Zirkel, were "two major wins for student rights." But then came Ronald Reagan. His presidency meant more conservative judicial appointments.

By 1985, there was a marked change in the way the Supreme Court looked at student rights. That same year the court heard the case of N.J. v. T.L.O. in which an unnamed 14-year-old girl protested her principal had violated her Fourth Amendment rights when he had searched her purse for illegal drugs - and found them - without a search warrant.

The high court concluded that to search students and their property, schools needed only to have a "reasonable suspicion" - a standard so low that it grants schools extremely broad powers.

Then in 1988 the Supreme Court heard Hazelwood School District v. Kuhlmeier. In this case, a high school principal censored the school paper, deciding that a pair of articles on divorce and teenage pregnancy were too controversial.

The court upheld the school's right to censor student speech if that speech is inconsistent with the school's "basic educational mission" and its right to inculcate values to its students.

"The rights won under Tinker were done away with here," says Zirkel. "Today the idea of students having constitutional rights is largely mythic."

Lower court decisions since the 1980s have also markedly favored the right of school systems, Zirkel says.

Since 1989, he has tracked dozens of court cases (both Supreme Court and lower court) involving matters of what he calls "student-conduct issues." This means everything from male students suing because they want to wear earrings to a school's right to do drug testing, and Zirkel found that schools won more than half the time; parents won about a third of the time; the remainder of the outcomes were mixed.

When it comes to matters of teachers' rights - everything from affirmative-action cases to mandatory drug testing of teachers - Zirkel has tracked dozens of cases from 1989 to the present and found that schools again won more than half the time. Of course, Zirkel concedes, he is only able to follow cases that come to court, and not those that settle before a trial; it is possible that schools only press ahead where they are confident of a victory.

He also agrees that even when a school is able to win a case, the amount of time and money required to do so may make the battle not worthwhile.

But he continues to insist that those who complain that schools must worry so constantly about student and teacher rights that they cannot do their job are simply not looking at the facts.

Zirkel's unusual background as a former high school Spanish teacher, an attorney specializing in education law, and a doctor of educational administration has given him an unusually broad perspective on a subject he feels is sometimes poorly understood.

"I see myself as a translator," he says. "I take all [these cases] and try to give them some practical sense."

Schools and the courts

US courts today are more likely to favor schools over either students or teachers - two major plaintiffs against schools.

Even in the problematic area of special education, school districts still win lawsuits more often than they lose.

Schools win more than half the lawsuits over teachers' rights.

In questions of student rights, however, students and schools continue to find themselves frequently at impasses and the number of cases remains significant.

Source: Perry Zirkel, education-law specialist and professor, Lehigh University

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