A proposed law in Ohio giving teachers and school staff immunity from lawsuits arising from discipline issues has sparked renewed controversy over how to protect students' rights and still keep teachers in control of their classrooms.
Proponents of the bill say it will keep school districts and teachers from having to face frivolous court cases that divert time and money from academics.
But opponents say the Ohio bill and others like it are unnecessary and tie the hands of parents whose children have been harmed mentally or physically because of disciplinary action.
Lining up in favor of the bill are groups like Common Good, a tort reform advocacy group, and various teachers' unions. Against, the American Civil Liberties Union and anti-corporal punishment groups such as The Center for Effective Discipline.
Almost everyone agrees that discipline is a significant issue in today's classrooms. But the agreement ends there. Whether kids are misbehaving more today than in the past is up for debate. Whether teachers should have a greater ability to take discipline action is up for debate. And what action they can take is being discussed in school districts all over the nation because of an increasingly litigious society. Teachers say students are quick to remind them they can sue.
A national survey of 725 middle and high school teachers and 600 parents by Public Agenda and Common Ground released in May found:
Nearly half of teachers (49 percent) complain they have been accused of unfairly disciplining a student.
Fifty-two percent of those surveyed say behavioral problems often stem from teachers who are soft on discipline because "they can count on parents or schools to support them."
Forty-four percent of teachers say documentation requirements go beyond common sense and are used primarily to protect schools from potential lawsuits.
More than one in three teachers say they have seriously considered quitting the profession--or know a colleague who has left--because student discipline and behavior became so intolerable.
Although no one involved in the Ohio school bill controversy can cite specific statistics about disciplinary suits against teachers, the number of appellate level cases concerning discipline has doubled from 1990 to 2000, up from 35 to 80.
"And that's just the tip of the iceberg," says Richard Arum, professor of Sociology and Director of Research for New York University's Steinhardt School of Education and author of Judging School Discipline. "There are thousands of cases that don't get to appeals."
Arum notes that the number of lawyers in the National School Board Association's Council of School Attorneys has grown from 250 in 1975 to more than 3,000 today.
"Attorneys are a cost of business for schools today,'' he says.
Depending on their size, schools are spending anywhere from $5,000 to $100,000 a year on insurance protection against lawsuits, experts say.
A random sample of current court cases found that schools are being sued for everything from a Georgia elementary teacher's strip search of her class after she found $26 missing from her wallet to a Texas school policy of random drug testing of students participating in extracurricular activities. In Ohio, a teacher was sued for looking down the pants of a student suspected of stealing cash. In that case, a federal district court found that the teacher violated the student's Fourth Amendment rights.
Advocates of civil immunity laws say they are necessary to curtail threats of lawsuits and baseless lawsuits. Seven states now have civil immunity laws. But opponents say parental ability to pursue court action provides a necessary check and balance of school authority, especially in the 22 states where corporal punishment is still legal, including Ohio.
The Ohio bill provides immunity from civil liability to school districts, community schools, non-public schools, and school employees for injury, death, or loss allegedly resulting from disciplining a student. Immunity does not apply if the discipline results in child endangerment, defined as abuse of a child, the administration of a disciplinary measure or physical restrain or a child in a cruel manner or for prolonged period that is excessive under the circumstances and creates a substantial risk of serious physical harm to a child or repeated administration of unwarranted disciplinary measures to a child where there is a substantial risk that such measures will seriously impair or retard the child's mental health or development. The bill, which was part of a larger tort reform effort, passed the Ohio House of Representatives and is being debated in the Senate. It has until January to pass or it will die.
Opponents say the bill goes even further than other civil immunity laws in that it includes any school employee, including janitors and visiting guests.
New York University's Arum says these types of laws are an attempt by school and state officials to swing the legal pendulum back to center after a court tilt toward increased student rights that began in the 1960s.
He cites the 1969 Supreme Court decision in Tinker v. Des Moines School District that upheld public school students' First Amendment rights to wear black armbands at school to protest the Vietnam War. That was followed by the Goss v. Lopez case in 1975, which held that a Columbus, Ohio, school district illegally suspended students for brawling in a school lunchroom and attacking a police officer in an auditorium because they weren't given notice or due process. Arum says while the justices' ruling might seem reasonable, the actual consequences of the decisions have been profound.
The rulings have inspired hundreds of lawsuits attacking schools' authority over hair length, grades, dances, student-body elections, school newspapers, alcohol, drugs, violence and weapons, he maintains.
"The immunity statutes are attempting to say something has gone wrong here,'' says Arum. "Public schools have their hands tied behind their back."
Arum says U. S. schools are uniquely disadvantaged than their counterparts in other Democratic developed countries when it comes to everyday school discipline.
"American student behavior is reported by teachers to be much worse than what teachers report in advanced countries. That's because we have the unusual situation in the U.S. where students have due process,'' he says.
Nancy Udell, director of policy and general counsel for Common Good, a non-profit law reform advocacy group, says the Ohio bill raises important issues about how schools end up being governed when it comes to discipline. Udell, a former English teacher and a dean of discipline in the Bronx, N.Y., says she saw first hand how difficult it was to take disciplinary action against a student.
"You have to ask what is the affect on the rest of kids in the classroom is when parents use courts to resolve the day-to-day ordinary issues of discipline. Is there a point at which we say there may be minor unfairness, but is it worth it to risk the moral authority of schools?" she says.
Udell says schools and lawsuits are not a good combination and she advocates a third-party approach to discipline procedures that parents are unhappy about. She suggests schools create a community oversight panel that parents can turn to if they are unhappy with action taken against their child.
"What is important is that it is a non-legal mechanism, that the message is that a school is a community and that teachers and principals should have authority to run the schools,'' she says.
Tom Mooney, president of the Ohio Federation of Teachers says immunity laws are increasingly important as states and federal regulations, such as the No Child Left Behind act, put more pressure on schools to perform academically.
"There has been more pressure to control student behavior because the stakes are higher,'' he says.
Mooney says that while unions provide some protection for teachers, they shouldn't have to deal with the constant threat of lawsuits that could affect their entire family.
"The bottom line is discipline is still a serious problem,'' he says. "Teachers should be able to deal with classroom and school-wide discipline issues without undue fear of being hung out to dry."
Proponents of the bill say parents needn't fear immunity laws because state and federal regulations--including the No Child Left Behind act--already protect students from abuse and disciplinary action that rise to a level of child regulations.
Opponents also cite federal regulations--and NCLB--saying that teachers are the ones that are protected. They say that it is actually rare that a teacher is personally held liable for an action.
"Teachers have plenty of immunity already. The 2001 No Child Left Behind act provides civil immunity for teachers accused of discipline. Teachers have insurance and school boards. Instead of scaring teachers, someone ought to tell them how well protected they are,'' says Nadine Block, a retired school psychologist and former director of The Center for Effective Discipline in Columbus, Ohio.
Block says that the Ohio immunity bill and others like it are vague about what action would constitute actual child abuse or endangerment so the protection is not really there for students. Considering that many states don't find paddling a form of abuse, parents need the recourse of going to the courts if they feel their child has been harmed.
Block cites the case of an Alabama child whose mother was not able to sue after her son came home with black-and-blue marks from a teacher who used a paddle because the child was picking his nose. The parent,
Michaela Curtis, of Demopolis, Ala., says she was prevented from suing because of the state's immunity law.
The U.S. Department of Education estimated that 365,000 students were paddled in the 1997-98 year, the most recent for which data is available.
"Who will protect children who were disciplined [but the results] don't rise to permanent injury?'' says Block.
According to Thomas Hutton, staff attorney for the National School Boards Association, civil immunity laws will not provide as much relief to school districts as they may think.
Immunity laws will not protect schools from being sued for violation of federal laws including civil rights regulations, Title IX, which regulates gender issues, the disabilities act and constitutional amendments such as freedom of speech, he notes.
David Harcum, a former school superintendent and elementary school principal, sells insurance to most of the school districts in Ohio. He says immunity bills are politically popular, but unnecessary.
"There is a lot of sympathy toward teachers ... and on the surface it sounds like a great idea,'' he says. "But right now I don't know of a single teacher or superintendent who has been sued that has had to pay out of their own pocket."
Some teachers, he says, "deserve to be sued."
Harcum, owner of Harcum-Schuett Agency in Columbus, says most of the lawsuits his districts must contend with concern hiring and promotion and school safety issues.
Carrie Davis, staff attorney for the Ohio American Civil Liberties Union says immunity laws are counterproductive. "It will undermine the trust we want in our school system. It will turn it into a more adversarial process. Parents will see schools as the enemy,'' she said.
She says the Ohio bill will raise more questions than it answers and in the end, lead to even more lawsuits.
Perhaps the real issue that needs to be dealt with is a more effective way to deal with behavioral problems among students.
In the Public Agenda/Common Good survey, 69 percent of teachers say finding ways to hold parents more accountable for kids' behavior would be an effective solution to the schools' discipline problems.
All sides say it's imperative that schools and parents find a way to work together.
Fran Silverman is a freelance writer based in Norwalk, Conn.