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
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
Some kinds of cases (suits involving desegregation, for instance)
have practically disappeared from court dockets in the past couple
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 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. …