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

Article excerpt

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. …