Is Law Undermining Public Education? A Ground-level View

Remarks by former Public Agenda President Deborah Wadsworth before the Common Good, a "bipartisan initiative to overhaul America's lawsuit culture."

Thank you, Nancy, and good afternoon ladies and gentlemen.

It will come as no surprise when I say how delighted I am to be here today, for you expect such clichés from a speaker. But in this instance, much more is involved than this obligatory trite sentiment. I am delighted because of my enthusiasm for Common Good – and its attention to such a pivotal societal issue – and, of course, the fact that Public Agenda has the opportunity to contribute a particular perspective to your work.

For those who are not familiar with us, Public Agenda is a nonpartisan, nonprofit research and public engagement organization whose expertise lies in exploring different points of view and probing beneath surface responses to capture underlying values and concerns – the “opinion beneath the opinion” as one of our founders, Daniel Yankelovich, puts it. Since our founding over 25 years ago by Dan and Cyrus Vance, Public Agenda has made its reputation by listening very carefully to the voices of the American people and making certain that the authentic voice of the public is part of the policy debates here in D.C. and in all 50 states.

For well over a decade, we have probed just about every aspect of public education and education reform. Through dozens of quantitative surveys, hundreds of qualitative focus groups, and thousands of individual interviews we have examined the views of the American public broadly, as well as those of corporate leaders, policy makers, teachers, students, college professors, administrators, and parents.

Our studies have been characterized as fair and balanced. It has been remarked from time to time that Public Agenda is not a “gun for hire,” and that our dedication to representing what we have heard without bias or preconceptions is what you can count on. Injecting the public’s voice into the debates over the most important issues facing society is our mission. And while we are fond of saying that, for the most part, the public is commonsensical, that doesn’t always square with Emerson’s description of common sense as “genius dressed in its working clothes.” Nonetheless, it is undeniable that varying perspectives must be accounted for if we’re to achieve anything that resembles the “common good.”

It is not unusual in our work to discover that the public and society’s leaders and experts are frequently on different wavelengths when it comes to matters as complex as the issue we are addressing. Understanding that such groups may be starting from different places or working from different assumptions is essential, I believe.

You have all received a packet containing some intriguing material. In it you will find a document entitled I’m Calling My Lawyer. This brief, to-the-point Public Agenda report captures what we heard during a recent small-scale pilot study of how teachers, principals and superintendents view litigation, due process and other regulatory requirements that presumably affect their working lives. I will try to give you the highlights of this research, hoping to motivate everyone here to read the report at your leisure. It won’t take long, and I think you will find it useful, particularly in its implications for bridging the gap between those in the trenches and those here today who are scrutinizing the role of law in society with intensity.

A word about the methodology is essential. The views I will describe come from two sources. One is a review of earlier Public Agenda work including more than two dozen national surveys of teachers, parents, students, principals, and superintendents conducted over the last decade – especially recent large-scale surveys of teachers, principals, and superintendents. The other is a series of three focus groups convened specifically on today’s topic: one with superintendents in the state of Illinois, one with principals and central office administrators in a school district in suburban New York City, and one with teachers in that same school district.

Despite the volume of data I am drawing on, a few caveats are in order. The combination of a very limited number of survey questions directed at litigation and due process contained in a larger study, combined with just three focus groups in two geographical locations, cannot reliably predict whether such views can be generalized to the population overall. Such an amalgam of findings can be very useful, though, in raising questions, stimulating discussion and suggesting hypotheses for further research. What I can say with certainty is that the views I will report on here were stated often and with vigor, and they are generally consistent with results from large-scale random surveys that touched on these issues. Thus, I think the following observations are worth your time and attention.

It’s important to note right off the bat that despite the shadow of litigation that is cast across so much of American life, litigation in the realm of public education has an exceptionally honorable history. The courts have often ruled in ways that have challenged business as usual, and few would disagree that lawsuits ending segregation or opening doors to children with disabilities were frivolous or unnecessary. And because of litigation today, schools in some cases are more equitably funded than in the past.

Having said that, it is also true that excessive litigation and regulation today have teachers and administrators literally walking on eggshells. Those who spend their days in the nation’s schools or classrooms are well aware that to touch or discipline a student could lead to devastating accusations or lawsuits alleging physical or sexual abuse. Not surprisingly, teachers and principals are very cautious indeed. Despite all the cries from groups across the political spectrum and across all socio-economic categories for greater discipline and order – for attention to the environment in which learning should take place – teachers strongly believe that parental and community support can no longer be taken for granted.

“Teaching elementary-level children,” one teacher says, “it’s so disturbing that you can’t even give them a hug anymore, and they do beg for it. I do think twice about it, even though I still do it. I let them do it to me. But it’s just so against my character. I can’t stand it. They want a hug.”

What’s more, especially in the upper grades, some teachers and principals told us they are more likely to hesitate to break up fights among students, fearing not only the potential for bodily harm but also the potential for litigation. “Now the climate is different,” a veteran teacher told us. “It’s more thinking of litigation. What’s going to happen if…? [When I broke up fights] back then, I was thinking about the kids. The two kids are fighting, I don’t want them to hurt each other, and I don’t want other kids to get involved…But that kind of simplistic thinking is over now.”

Many teachers tell us they make it a practice – and many administrators say they make it a policy – for teachers to never even touch a student, fearing the action can be misinterpreted. Though some elementary teachers, as noted, continue to hug young children when they feel it is required, others may think twice before doing so. One principal told us that his high school faculty are told never to touch kids, period. “A good touch can be interpreted as sexual harassment,” he said, while “the other touch can be interpreted as corporal punishment.” Thus, teachers try to maintain a space between themselves and their students, making it easier to rebut any allegation.

But it goes beyond that. Teachers are often advised to keep their doors open and to avoid being alone with a student, especially if the teacher is a man. One elementary school teacher told a story revealing the anxiety and awkwardness this might cause. “Even today,” he said, “the buses are called, and children go out one at a time. It so happened I have one child left waiting for the bus. I was like a bee in the room, and it was on my mind the whole time I was there, that kid was there and now what do I do? Do I ship him to another classroom because he’s the only one left in the room? How would he feel? He was sitting there quietly doing his work, but I just flitted around the room. It was on my mind. Here it was of no fault of my own, but here I was in a room with a kid.”

Such behaviors reflect the realities of today’s society. Worrying about these concerns, and establishing policies that minimize the chances for litigation are among the many responsibilities of principals and superintendents. In fact, rather than single these issues out for special emphasis, they tend to consider them as just part of a day’s work, albeit time-consuming and often frustrating.

“I think it’s just the nature of society at this point,” one administrator told us. “Sometimes they may sue, more often than not they won’t. . . . But once you know this exists, I’m always very mindful about how I speak and what I say and the words I choose and how I present myself. You always want to be on the side of the child and do what’s right for the child and all of that first.”

In the legal and regulatory arena, what jumps out for principals and superintendents is special education, which many consider a magnet for litigation as parents seek to extract every benefit they can from the system. In fact, many of the educators we interviewed feel that much school-related litigation is prompted by unreasonable, greedy, or irresponsible people seeking to get their way. In short, it’s a case of “show me the money.”

“By and large,” one administrator told us in discussing special education, “it’s more affluent, feel-entitled community members who want a private school education for their child, and they don’t want to pay for it. . . . They come with very high-powered attorneys and find the one page where you didn’t dot the ‘i.’ So we ended up settling because it would be much too costly to go through litigation.”

We heard it said over and over that schools – not unlike many other institutions, I might add – tend to settle cases rather than fight them. That is, we were told, “standard operating procedure.”
Horror stories abound. We heard about a child running down the hallway, falling and breaking his teeth. With his lawyers present, he admitted that three different teachers had told him not to run. Nonetheless, the case was settled (after the boy’s lawyer asked why there had not been a fourth teacher present in the hall) and, in the principal’s words, they “got a ton of money.” “They did it,” he added, “because they could.”

Sexual harassment among students themselves is another area of particular concern, one where judgment calls are especially crucial. Educators worry that they may view one child grabbing another as a discipline problem while parents might view the same incident differently. If the school doesn’t treat it as sexual harassment and it happens again, the school could be in trouble. Educators worry a lot about these kinds of things.

One result is a set of detailed policies and training sessions, with participants required to attest that they have read the policies and undergone the training. These policies often dictate procedures, which for better or worse absolve teachers or principals from making potentially hazardous judgments or decisions. Some educators take refuge in this fact, happy to turn any such matter over to the school’s compliance officer. The fact that schools or districts now have compliance officers is but one example of how things have changed in today’s school environment.

“If I think there might be anything, if I get any kind of clue at all, I go right to the compliance officer immediately. . . Before…I probably would have used my judgment more about whether or not I would report it,” a principal said, “and now it’s just automatic. Anything that I think is in the ballpark, I call her up, and I talk to the lawyers.”

Another major area of concern is driven by the discipline and zero-tolerance policies that have become a requirement of the reform agenda in response to public demand. A Public Agenda survey to be published later this month finds that a majority of superintendents and principals say that today’s emphasis on “documentation and due process” makes it “difficult to take action against students who are discipline problems.”

As one teacher interviewed for a previous study told us: “We live in a world where all they have to do is whisper that we hit them, and we’re gone. I already had this year a kid accuse me of hitting him. A lot of the kids know they can go over your head…”

Conversely, we have all read about situations in which unreasonable punishments are mandated. In one focus group, an administrator recounted the story of a teacher who had asked second-grade students to bring something to class that they cherished. A six-year-old girl brought a pocketknife that her grandfather had given her – an item that she cherished – and was suspended for several days. The administrator had no discretion.

As you can see, teachers and administrators are reacting to today’s litigious world by acting with caution, altering their behavior, and creating rigid policies and practices that, while not sensible in every situation, give them some protection. Often they adopt a better-safe-than-sorry approach – with student safety as their primary concern. Some might conclude that under the circumstances this is fairly rational behavior. Others will no doubt agree with Philip Howard, who writes in his highly-acclaimed book, The Common Good, that archaeologists a thousand years from now will dig up our remains and give us a name…“the Age without Reason.”

Not surprisingly, all this takes a personal toll on education professionals, who are suddenly thrust into the legal system or who, at the least, worry about ending up there. Three-quarters of America’s public school teacher corps already feel that they are “scapegoats for all the problems facing education.” False accusations that they struck a child, or said something inappropriate, are obviously devastating, and in the focus group teachers told stories about teachers they know who have left the profession rather than fight such charges. “This isn’t worth it,” one older teacher told a colleague. “If I have to go through the whole legal system because she said this, and I said that.”

“You try to blow it off, and you know you’re covered by our insurance company,” another principal told us. “But then you go to these depositions and they’ll ask you about a conversation I had three years ago in the hallway. ‘Who was there? Who else heard? What exactly did you say? Did you keep any notes?’ I think it’s devastating.”

I doubt that anything I have told you this far has been much of a surprise. But now the tale gets more interesting, kind of like the twist at the end of an O. Henry story. For as difficult as today’s environment can be for educators, a large proportion of them defend what’s going on as necessary and desirable – certainly preferable to prior times when many of today’s student safeguards did not exist.

One principal summed up the feelings of many others in saying that, “…as horrible as the litigation is sometimes, if we’re protecting one kid because of that, it’s probably worth it. I don’t think you can just ignore that all these terrible things are happening in the world to kids by adults in positions of responsibility, seemingly every day….”

Even before the publicity over sex abuse scandals in the Catholic Church, a Public Agenda survey found that over 6 in 10 parents of younger children were “very concerned” that children “could suffer physical or sexual abuse” at day care centers.

“The negative side of it is we’re being held accountable for everyone’s behavior,” said one educator. “We’re all responsible for it. The positive side of it is the children are safe. I’ve seen it, and I’m very happy that [schools have] intervened.”

The truth is that educators really are in a box. Troubled by a mentality where lawsuits are the weapon of choice, and often discouraged if not prevented from treating students as they would prefer to treat them, they are still concerned primarily with protecting their students. And they will do so no matter what frustrations, or sometimes even idiocies, they must put up with in the process. One teacher described a tough decision she had to make. She said, “There was a girl walking down the hall, and one of my students was after her and wanted to kiss her. She really didn’t look like she wanted to be kissed…so I reported it because I thought a lot of kids do feel uncomfortable…Some of the boys want to kiss the girls. I don’t know if they really want them to. Are they kidding around? She said it was no big deal. I don’t know if she didn’t want to make it a big deal. But she didn’t look like she was happy about it, so I felt I should report it.”
Some of the administrators we spoke with talked about this dilemma – how can people who really have been “given a raw deal” get justice if they don’t have the option of suing? “If you
were to go the other way and limit suits,” he said, “then you have…injustice on the other side, as well.”

In a recent Public Agenda study of administrators, 50 percent of superintendents surveyed believe that legal issues and litigation in their district get more attention than they deserve. But almost as many, 43 percent say it’s the right amount.

So where does this leave us? This preliminary research, with the caveats I noted at the outset, seems to suggest that at this point in time litigation does not appear to be as urgent an issue to teachers, principals, and superintendents as it surely is to doctors and other health care providers. This could be explained by the fact that doctors are more likely to be sued than teachers and pay very steep insurance bills. Moreover, educators are used to an environment in which regulation and public scrutiny are longtime facts of life.

Public schools are adapting to today’s litigious world and, despite plenty of horror stories, find it less onerous than one might have suspected. They resent those parents who try to game the system, but they also believe that many of the laws and regulations that rankle them were imposed to protect kids.

Public Agenda co-founder Dan Yankelovich characterizes the development of public opinion as a journey that goes through seven distinct stages. It begins, he says, with a “dawning awareness,” the time when people first become aware of an issue but do not yet feel a pressing need to do anything about it. Events occur, often covered by media with some intensity, that eventually move people beyond their initial awareness of a problem to a sense of urgency about it. In later stages, they will search for alternative solutions, engage in wishful thinking about how easy it is to fix what is wrong, eventually weigh some real alternatives, and ultimately come to sound intellectual, moral, and emotional judgments that will last.

Educators today, I submit, are at a transition point, aware of the problems that over-regulation and litigation cause but not yet viewing these problems with the kind of urgency that is required to bring about change. This is in sharp contrast to health care, where it is clear to almost everyone that litigation is getting in the way of the practice of good medicine and responsible health-care delivery. Further, while many focus group participants had plenty of complaints about today’s system, very few had given much thought to alternative approaches, with some even resisting the idea of extensive change. There were concerns about tilting the system in the other direction and suspicions about the motives of those promoting reform.

An exception is special education. Here is a “hot button” area where superintendents and principals especially may be receptive to new approaches – approaches that address their belief that disproportionate funds are being spent, that paperwork and procedures are overly taxing, and that many parents are quick to call their lawyers. A second exception might be tenure and the difficulties administrators feel in replacing under-performing teachers. We have documented strong opinions on this matter in the study to be released later this month. While our respondents didn’t discuss alternatives to litigation for resolving such disputes, these are two areas where Common Good may be able to make a contribution.

All of this suggests that while the problems are real, attempts to limit litigation and regulation in the school arena should be approached with caution. For what may seem to us like obvious and urgently-needed solutions may not resonate the same way – at least now – with teachers, principals, and superintendents. Remember, too, that, as I said earlier, educators feel that litigation has often brought much needed attention and resolution to issues of educational inequity in America’s past. Nor should we underestimate how many pressing issues currently face the nation’s principals and superintendents, with today’s emphasis on standards and accountability. Their plates are full, and the invitation that “We are here to help by reforming the legal process” may not be as well received as we think.

In his marvelous biography of John Adams, David McCullough describes Thomas Jefferson alone in his parlor at Seventh and Market in Philadelphia, seated in a revolving Windsor chair and drafting the Declaration of Independence on a portable writing box. “It was not his objective to be original,” Jefferson would explain, only “to place before mankind the common sense of the subject.”

As a start, Common Good can do just that. It’s likely to be a challenge that will require care and patience. I believe that all of us here today would agree that it is a worthwhile endeavor. Thank you and good luck to Common Good in your most important work.