Are schools more afraid of lawsuits than they should be?

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."

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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