For the past thirty years, student discipline cases periodically have drawn national attention at the pretrial stage.1 The prevailing concern is student safety.2 This national attention frequently culminates in calls for tort reform by both politicians3 and special interest groups.4 Their common premise is that fear of litigation and liability cripple educators from maintaining order and student safety in the public schools.5 When reporting such student-initiated lawsuits, media sources such as newspapers, television and internet sites usually describe the alleged facts and legal claims, without any analysis of the legal precedents or coverage of the ultimate court outcome." Such reporting fosters a perception that discipline-related lawsuits are common and reinforces the belief that both litigation and liability are likely in response to educator action in the wake of student violence.
Student fights are a frequent focus of such sources, leading to the advice not to touch students due to looming liability litigation.7 However, these groups present only selected anecdotes8 and rather skewed surveys9 to support their contention. In contrast, our recent study revealed that teachers perceive little limitation on their actions due to fear of litigation.10 To address the remaining gap in the research literature, this follow-up study systematically examines the frequency and outcomes of student fight cases as an objective measure of the likelihood of litigation and liability.
In the past three decades, many empirical studies found that teachers and other educators have a low level of school law knowledge, particularly in terms of student discipline." One contributing factor appears to be a lack of formal school law training for teachers.12 More specifically, a subject central to their role but of which teachers have particularly low knowledge is liability for negligence.13 In general, negligence is an unintentional breach of legal duty that causes an injury to another person or his or her property. If teachers fail to fulfill their duty to provide students with a reasonable standard of care under the circumstances, directly resulting in student injury, they may be liable for negligence- subject to available defenses, such as any applicable immunity under state law.14 Due to governmental immunity in many states for school negligence15 and possible other adjudicative advantages, such as the statute of limitations and attorneys' fees, in some cases the student plaintiff files a claim for the so-called "constitutional tort" under Section 1983. 16 Therefore, if student-initiated negligence suits occur often, teachers may fear liability for their actions.
A. Litigation Frequency and Outcomes
Contrary to the common conception,17 empirical research on the frequency of school litigation suggests a decreasing rather than increasing basis for fear of litigation. For example, studies report low frequencies of litigation concerning student discipline.'8 The highest reported national frequency of student discipline-related litigation averaged fewer than 100 cases per year during the time period of 2003 to 2007. 19 Moreover, the outcomes of these student cases generally favored school defendants, with the percentage significantly shifting further in their favor during recent decades.20 More specifically for negligence suits, the national frequency of published school negligence cases averaged fifty per year from 1990-2005 and students succeeded conclusively or at least partially in only 11% of the cases.21
B. Fear of Litigation
Despite these relatively low levels of litigation, much less liability, based on the claim of tort reform organizations that fear of litigation prevents educators from taking disciplinary and other action for student safety, in 2001 Congress passed the Teacher Liability Protection Act,22 which ostensibly granted qualified immunity to teachers for their good faith actions to maintain order if those actions resulted in student injury. …