Source:California School Board Association's California Online Magazine

Legally Bound

Who are the real losers in school lawsuits?

By Scott LaFee, Writer, California Schools

In Oregon, a mother sues a school district after a district employee gives her 8-year-old son a haircut without her permission. The district settles the suit for $10,000.

In New York, a father sues a school district after it suspends his son for firing a frozen egg at a passing school bus, which shattered a window and injured a child. The father says the district violated his son’s civil rights because the act took place off school grounds.

In Texas, parents sue the principal and all seven school district trustees after their daughter, a sixth-grader, is ordered to not wear a Hoover Dam T-shirt to school. The daughter did so six days in a row and each day was sent home. The shirt read: “Somebody went to Hoover Dam, and all I got was this dam shirt.” The parents claim her First Amendment rights were violated and that the punishment — being sent home — was excessive and punitive.

In Wisconsin, a student who claims his vacation plans were spoiled by summer homework, sues his school district to end the practice, citing an unfair workload and unnecessary stress.

And in North Carolina, parents sue a school board after it decides to adopt uniforms for middle school students.

The stories seemingly go on and on, printed in newspapers, recounted on radio talk shows, shown on the local evening news. Students and/or their parents are suing teachers, administrators, school boards, even whole districts, for apparently ridiculous reasons: bad grades, failing to make a sports team, not being named valedictorian of the senior high school class.

“You can’t make a student feel bad. … You can’t tell a cheerleader she wasn’t quite good enough,” complains Adrienne “Andy” Kotner, president of the San Diego chapter of the group California Citizens Against Lawsuit Abuse, a non-profit representing doctors, business and insurance companies.

“Sometimes things just happen. It’s nobody’s fault, or maybe it’s simply that somebody just didn’t try hard enough or wasn’t good enough. We want kids and their parents to accept personal responsibility, and not sue their school when something doesn’t go their way.”

Groups like CALA say that school districts across the country have become the unfair target of lawsuits that, euphemistically speaking, are of dubious legal merit, suits they contend are spurred only by greed.

“They’re frequently foisted upon districts by plaintiffs and trial lawyers looking for a lucrative settlement,” asserts Gretchen Schaefer, spokesperson for the American Tort Reform Association, a self-described “broad-based, bipartisan coalition of more than 300 businesses, corporations, municipalities, associations, and professional firms who support civil justice reform.

Such lawsuits have various names: frivolous, nuisance, disappointment. But whatever the moniker, CALA, ATRA and like-minded organizations allege that they eventually and ultimately harm students by diverting scarce resources from the classroom to the courtroom, thus diminishing the ability of school districts, administrators and teachers to do their job.

“Everybody understands that when people shoplift and steal, all consumers pay more,” says CALA’s Kotner. “The same phenomenon applies here. There are only so many pieces of the pie in education, and money spent defending frivolous lawsuits is money that isn’t spent in the classroom.”

But is that claim really true? Exactly how harmful are these lawsuits, these legal complaints that grab headlines and leave people, at first glance at least, shaking their heads ruefully and wondering where common sense went? The answer is perhaps less clear than you might think.

Survey says

Supporters of civil liability reform in education, which presumably includes reducing the number of suspect lawsuits filed, often cite a handful of surveys to buttress their claims that the situation is dire and action urgently needed.

In 1998, the Association for California Tort Reform commissioned a study on the effect of civil liability litigation on California’s public schools. The four-month study was conducted by School Services of California, a Sacramento-based consulting firm.

The results of the study, which remains one of the few on the subject, are sobering: The study found that “preparation, defense and indemnification against civil litigation reduced the quality of California public school education in three significant ways:”

It drained educational coffers of more than $80 million a year in costs related to civil liability, money that might have been used for instructional purposes.

Fear of litigation and its associated costs constrained districts from delivering an optimal education to students. In other words, districts abandoned or abolished worthwhile programs, such as field trips, specific literature and curricula and “basic human contact” in order to avoid the possibility of a lawsuit.

Fear of litigation — or rather, fear of time and money lost — also constrained districts from acting against employees who were under-performing or failing to do their job, with the ultimate losers being students.

The next year, ATRA, which is based in Washington, D.C., published a survey stating that 65 percent of principals said there was a difference in the types of student-related programs they offered because of liability concerns and costs. Twenty percent said they spent five to 10 hours each week in meetings or documenting events in order to avoid litigation. Twenty-five percent said their schools had been involved in lawsuits or out-of-court settlements within the previous two years.

And in 2003, Harris Interactive, a polling company, was hired by Common Good, another tort reform advocacy group, to survey public school teachers and principals about how regulations, due process and lawsuits affect the way they do their jobs. Five hundred teachers and 301 principals were interviewed.

Among those findings:

• Sixty-three percent of teachers and 64 percent of principals said they believed an increased potential for legal challenges by students or parents had hurt their ability to do their job. (Even larger percentages said new laws, rules and legal mandates had hurt their ability.)
• Slightly more than half of the teachers and principals said they were either very or somewhat concerned about the risks of lawsuits, with similar percentages saying that those concerns had increased in recent years.
• About two-thirds of teachers and administrators said they worry, to varying degrees, that a decision they make will be legally challenged, though the vast majority trusted the “system” to reach a reasonable result.
• Eighty-two percent of teachers and 77 percent of principals said an atmosphere of “defensive teaching” exists, resulting in less personal instruction and social interaction.

Significant majorities of teachers and principals said that fewer laws would improve their morale, the quality of education in their schools and help them maintain order in the classroom.

But surveys are not academic studies, which are typically more rigorously conducted and often peer-reviewed for inaccuracies, bias and poor methodology. Outside experts say such studies have not been done and that claims asserting that so-called frivolous litigation cause significant harm to public school education are anecdotal at best.

“I don’t know of one study with solid research that supports that position,” says Phillip T.K. Daniel, a professor of education and law at Ohio State University and immediate past president of the Dayton-based Education Law Association, a non-profit, non-advocacy organization that promotes interest in and understanding of the legal framework of education and the rights of students, parents, school boards and school employees.

For Perry Zirkel, a professor of education and law at Lehigh University in Bethlehem, Penn., that fact alone suggests “nuisance lawsuits” really aren’t much of a problem.

“Not at all. They seem to me to be largely the result of the media’s penchant for short, dramatic information and a concerted campaign by interest groups seeking tort reform, such as The Common Good.”

According to Zirkel, dubious litigation only has “impact to the extent that the interest groups and the media have convinced educators, including boards and administrators, that the problem is real. Like the proverbial story of the emperor’s new clothes, erroneous perception becomes effective reality.”

Which, says John Merchant, state president of CALA, is exactly the point: “The fear of litigation has pretty much penetrated the school system.”

That fear, he and others insist, translates into a reduced educational experience and standard of excellence. Teachers refrain from benign and formerly acceptable behaviors, such as hugging their students, for fear of being accused of sexual misconduct. Districts yank out playground equipment that might injure a child, restrict field trips to only the safest venues and implement zero-tolerance policies that eliminate virtually all powers of discretion by principals and teachers.

“There’s a grain of truth that the fear is perceived, rather than real,” says Robert Arum, a sociologist and director of research at the Steinhardt School of Education at New York University. “It’s rare that an individual educator has been found liable for errors on the job, the exception being if they knowingly violate due process or commit a crime.

“But rare is real, and there are real, huge costs to districts and to the professional lives of educators in defending against these lawsuits, even if they end up winning. Over time, a huge amount of emotional and psychological energy is spent. There are financial costs, damage to reputations. The fact that districts and educators win these cases doesn’t diminish the price they often pay.”

Shifting trends

It wasn’t always this way, or so observers say. The shift toward more litigation, of suing districts, boards and educators, began in the 1960s, said Arum, when new laws were devised to protect and expand individual rights. The federal government helped fuel the process by setting up agencies and institutions explicitly designed to help individuals sue.

“Student rights, the ability to challenge and sue local school districts — all of it was part of the war on poverty and it was meant to empower students to force reform through legal means,” says Arum. “The unintended consequence, however, was that it created an adversarial relationship, with educators on one side and those they serve on the other.”

It’s rare for a district to lose a “disappointment lawsuit” in court, but that doesn’t necessarily stop people from suing.

“Students and others are so much more cognizant of their civil rights,” says Tom Osborne, executive director of the Schools Excess Liability Fund, a joint powers agency that provides liability coverage to members (roughly 85 percent of school districts in the state) in cases exceeding $1 million in claims.

“Students are more likely now to challenge authority or carry forward their own agenda, supported by parents, organizations or groups. Everybody is an advocate for something nowadays.”

Some lawsuits are, on the face of it at least, patently absurd: the student who sues a district because he received an A instead of an A+, for example. Others are more profound and problematic. Take special education, an area of education where lawsuits from students — or more precisely, their parents and attorneys — is growing.

“People are moving away from administrative processes and into the courts,” says Daniel Shinoff, a San Diego-based attorney who frequently represents school districts in such cases. “There are such high expectations from parents, false expectations in many cases, about what schools can and cannot do.”

Judy Cias, assistant general counsel for the Education Legal Alliance, an arm of the California School Boards Association that initiates and supports litigation promoting statewide public education interests, notes that state and federal laws provide all teachers and district staff with liability protection. No one is personally legally liable for their work if they are simply doing their job and not knowingly violating rules or laws. Where it sometimes gets muddy — and where some lawsuits find footing — is in the question of knowing how the law applies to that job.

“There was a principal who was sued by the father of a boy who got suspended,” says Cias. “The father, who was a lawyer, said the boy had not received sufficient due process. The father filed all of these papers claiming the principal had ignored this and that aspect of the law. But really, how closely should a principal know the minutia of any law? The principal was doing his job, following the rules. The court agreed and said it was a case of petulance triumphing over common sense. The father sued because he thought the principal had ruined his son’s chances of getting into a good college. But the son went on to college as planned.”

The principal was ultimately vindicated, but the suit still cost the district a lot of time and money to defend.

Such episodes, recounted in newspapers and in school lounges, scare teachers and administrators, said Robert Rosati, a Fresno-based lawyer who represents 40 school districts in the Central Valley and who has litigated more than 100 such suits.

“Teachers in general tell me the threat of litigation affects how they act. They’re always saying stuff like ‘I could get sued for doing that.’ It’s easy for me to tell them not to pay attention to these lawsuits, that if they’re doing their job, they’re covered, but the fear is real and it doesn’t go away.”

In fact, most dubious lawsuits never make it to trial. Some get thrown out, but more often they’re settled.

“The unfortunate reality is that it’s usually more expensive to fight than to simply roll over and pay the person to go away,” says John Sullivan, president of the Civil Justice Association of California, a coalition of citizens, taxpayers, businesses, local governments, professionals, manufacturers, financial institutions, insurers and medical organizations promoting civil liability reform in the state.

Shinoff agrees: “Going to court means taking administrators and teachers out of their schools and classrooms where they ought to be. It means losing money and time. It’s a waste.”

So what’s the remedy? If schools and districts are being significantly impacted by lawsuits without merit — as some but not all observers suggest — how is that number to be reduced?

Kotner, the president of the San Diego branch of CALA, recommends mandatory mediation or arbitration before a lawsuit could be filed in most educational lawsuits.

“Instead of using the courts as first resort, they would be the last,” she says.

But most experts think there is no singular or easy answer, and all say any solution will probably require a strong legislative component. Laws will have to be changed.

“Right now, every insult, every perceived slight can result in somebody being drawn into litigation,” says Shinoff. “That tells me the system is broken.”

Shinoff thinks the law must be amended to require plaintiffs to meet a higher legal threshold before they could sue.

Sullivan with the Civil Justice Association argues that judges must be more pro-active, less willing to allow cases without legal merit to consume court time. If plaintiffs persist and lose, they should be penalized, perhaps by paying all court costs, he said.

Arum at NYU summed it up this way:

“Part of the solution is to recognize that some of these laws are good. Desegregation, fiscal equity, freedom of speech on campus — these are good things. But you need to realistically look at other laws that are not appropriate, that have not led to better educational practices. The courts shouldn’t be in the business of deciding these things. Leave educational practices to schools and school boards. That’s what they’re trained to do.”

© 2005 California School Boards Association. All rights reserved.

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Last modified: September 23, 2005

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