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.
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."
How to Avoid a Lawsuit
Those involved in school litigation suggest a variety of strategies to limit district legal exposure, help deal with the threats of legal action and defend districts that are actually brought to court. Above all, be clear on district and school policies, they counsel.
Schools almost always win when the policy is written down and they have abided by it. "Judges will very seldom rule against you in those cases," says Manatee County's John Bowen. "But they will rule against you every time you have violated your own policies. You're dead in the water."
Keeping up with legal developments in other districts or states may also prevent legal headaches. "Be aware of what's out there," warns NSBA's Tom Hutton. "We had a big scare a few years ago when a group sued several Mississippi school districts for overtime pay. Those districts paid huge settlements, but the rest of the education world got the message and started keeping more accurate records. Some even invested in time clocks."
Another kind of record keeping that Hutton recommends is accurate assessments of teacher performance. "Supervisors may be loath to highlight in writing the problems of teachers," he says. "If you routinely give people stellar reviews, you'll have a problem down the line."
School districts can also take the lead on avoiding personal injury suits, the legal experts say, by adding, for instance, rubber matting around playground equipment and installing seatbelts in school buses.
Catherine Clark, associate executive director for the Texas Association of School Boards, suggests offering loss control seminars for employees who drive the buses, work the grounds, fix the fuses and staff the lunchroom. "A lot of folks are likely to get injured, and with a lot of turnover, it's hard to keep them trained," she points out.
Considering the complexity of the problems, solutions might be better addressed outside of the courtroom, starting with working cooperatively, says Albuquerque Public Schools attorney Mike Carrico.
Carrico suggests developing forums for parents and advocates so administrators can better understand where their schools have fallen short in dealing with special needs students. "Parents have an expectation that they'll be equal partners," he says. "And schools need to let them know their input is important and necessary. If you have an ongoing relationship, you won't reach the crisis level."
In special education, says North Carolina attorney Richard Schwartz, being proactive can fend off dubious charges by parents and their lawyers. He recommends installing video cameras in special education classes, especially those that have nonverbal students. The videotapes can serve as your best defense should you be threatened with legal action about student progress or inappropriate teacher behavior.
Legal Pitfalls and District Solutions
In the case of many school lawsuits, say Schwartz and others, it may be in your best interest to fight back. "What you can be sued over is different from what you will lose in court," Hutton notes.
Bowen makes sure the administrators in Manatee County get that message and resist settling unjustified cases. "I tell my administrators not to take action based on someone threatening to sue. I take the stand that we don't pay a penny for nuisance value. I tell them to say, 'Don't sue us unless you're willing to incur the costs of going all the way.'"
According to Zirkel-who has studied the outcomes of school cases over the past 50 years-the odds have always favored the schools. "Even in the more liberal times of the Warren Supreme Court, the ratio of wins to losses favored school districts by 60 percent to 40 percent," he says. "If we look more recently at outcomes, those numbers have shifted to 70 percent to 30 percent."
To avoid unspecified district policies, Manatee County Schools has issued a nine-chapter policies and procedures manual covering everything from the Pledge of Allegiance and student publications to bus evacuation drills and grievance procedures for employees. In February the district added a section on HIV-infected students, guaranteeing confidentiality, but also authorizing the principal to convene an advisory panel if a student's condition worsened to the point where he might be a health threat to others in school.
"The difference between a district that pays a huge settlement and one that gets off the hook is that they took the situation seriously from the start and didn't just hope it would go away," says Hutton. Attorneys say that educational administrators need to treat less egregious cases as seriously and promptly.
Albuquerque attorney Gail Stewart adds that quietly passing a problem on to another school can also have repercussions. She recalls one teacher in New Mexico who was forced out of a school for inappropriate behavior with students and then repeated the same behaviors at his next school. The failure of the first school to document and communicate the teacher's malfeasance became grounds for legal action.
Hutton says in some cases you may need to get even further ahead of a legal problem. "If a kid wants to hand out candy canes with a religious connotation, you'd better pick up the phone and call your lawyer" in advance, he urges. Possibly planned by a larger religious group, hoping for a difference of opinion, "the lawsuit [could] already be drafted [by the group] before the kid asks for permission," he says.
Good training for administrators, teachers and support staff can serve as a district's best investment, Hutton points out, noting that most states require principals and other administrators to take a school law course. "Take that course seriously because you'll discover early in your administrative career how frequently law is lurking in the background of the decisions you have to make."
"We do more preventative work than litigation," admits Bowen. "It's important to train the administrators and teachers on the front line how to recognize a legal issue and seek advice so you can develop a strategy. But whenever you're in doubt, call your school board attorney."
Ron Schachter is a contributing editor based in Newton, Mass.