Paralyzed by the threat of litigation, educators are often unable to strictly enforce rules.


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There was a time not too long ago when well-intended reformers thought that public schools could be made better by extending due process rights to youth. If kids just had greater legal protections when facing minor day-to-day school discipline, the argument went, schools would be fairer places and student achievement would improve.

It hasn't worked out that way. Instead, schools today often lack the capacity to support youth development, and advocacy organizations continue to issue regular reports on the persistence of racial disparities in the application of school discipline. How did we get here, and what is to be done to restore the capacity of educators to improve public school performance?

It is one of the great ironies of U.S. educational history that authority relationships between public school students and educators were altered in historically and cross-nationally unprecedented ways by the federal government. This federal support took the form of the establishment of legal advocacy organizations that not only sued local public schools, but also devised legal strategies that resulted in the Supreme Court's Goss v. Lopez (1975) decision extending rudimentary due process rights to public school students who faced even minor day-to-day discipline. And within a month of Goss, in Wood v Strickland, the Supreme Court put public school educators on notice that if they knowingly violated a student's due process rights, they could be held individually and personally liable.

Once public school teachers learned they could be held personally liable for failing to follow ambiguously defined due process provisions when disciplining students, they worked through their unions to offload responsibility for these school functions. Union contracts would come to insist that teachers not be involved in maintaining order and discipline outside their classrooms. Teachers attempting to break up fights in many of today's public school have grown accustomed to the refrain: "Get your hands off me or I will sue you." While these legal threats are, of course, seldom pursued, what has changed is that the taken-for-granted assumption that educators had moral authority was significantly undermined.

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In addition, schools facing the threat of litigation initially pulled back from strictly enforcing rules. Then as legislators, educators, and citizens grew increasingly concerned with school disorder and violence, administrative remedies were sought. Rather than restoring traditional discretionary authority to teachers and administrators, draconian school security measures, uniformed security guards, and zero-tolerance mandates were often imposed on local schools.

Well-intended efforts to improve youth outcomes through legal intervention into traditional matters involving educators, students, and their parents has produced a system of school discipline that is incapable of fostering the positive authority relationships necessary for youth to come to internalize and accept conventional societal norms, values, and attitudes. Worse still, public school students who had greater rights ended up not perceiving school discipline as fairer, but just the opposite. The more rights students thought they had, the more injustice they perceived in their everyday school lives. Students in Catholic schools, for example, who had many fewer legal protections than public school students, have in recent decades been significantly more likely to report that school discipline was fairer. And it turns out that students' perceptions of fairness -- not the level of strictness -- is what makes school discipline most effective at aiding youth development.

Today, while a new generation of school reformers tinker with curriculum, school size, testing accountability regimes, and other initiatives, this core contemporary problem of public schooling has been left largely unaddressed. To improve public schooling, one must recognize that positive relationships between educators and students are at the center of any productive educative process in formal schooling. Good luck with improving school performance by implementing a curriculum reform based on standards or accountability if you haven't first ensured that students respect the moral authority of public school educators so that the reforms have a chance to succeed.

If the imposition of law into education got us into this mess, I am quite skeptical that different types of law, regulation, and formal policies could effectively help us to remedy this situation. Instead, we need less law in this area: regulations and requirements for zero-tolerance policing of youth should be dismantled; and the Supreme Court, while continuing to support the democratic rights of students to exercise freedom of expression, should revisit the issue of school discipline per se and require due process protections only when students are being threatened with long-term exclusion from public schools. In minor, day-to-day discipline, the courts have no business being involved in public education. They should leave these matters to professional educators who are trained to address such issues.

We don't need to accept a school system in which educators' fear of being sued prevents them from doing what is pedagogically right.

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