How Courts and Congress Wrecked School Discipline

Liberal judicial decisions unique to the United States have made our schools uniquely disorderly.

Outside Anacostia Senior High School, three miles southeast of the Capitol, a football player was killed on October 30 by a stray bullet meant for someone else. Not far away, at Ballou Senior High, a gang fight involving 15 or 20 students broke out in the cafeteria on November 10. School officials "have no control," one Ballou mother complained to The Washington Post.

Indeed. That is the main reason why so little learning takes place at Anacostia, a part-time teacher there tells me. And nationwide, every year, some 30 students die of homicides committed on public school grounds; 10 percent of all teachers are physically threatened by students; and 4 percent are physically attacked. Student disruption of classes and defiance of teachers is routine at many schools. And such disorder is not confined to urban schools. Discipline is the biggest worry for suburban parents, too, surveys show. More than 40 percent of teachers nationwide agreed in one survey that "student behavior interferes with my teaching." Many complain that administrators don't back them up on discipline. Some leave the profession in frustration. Cheating is rampant almost everywhere, and serious punishment rare.

An idealistic young English teacher named Richard Arum began studying the breakdown in school discipline sometime after one of his students was shot three times in 1991, in the courtyard next to his classroom at Castlemont High School, in East Oakland, Calif. Arum had been drawn to the overwhelmingly black school by sympathy for the civil-rights struggle.

Now an associate professor of sociology and education at New York University, Arum has produced a new book that lays much of the responsibility at the doors of the Supreme Court, of other judges who thought they understood education better than the educators, and of the idealistic "liberal advocacy lawyers" who pushed for students' rights to challenge school discipline beginning in the 1960s. Such well-intentioned "adversarial legalism" has, Arum writes, led to "the intimidation of school personnel faced with an ambiguous legal terrain, and an undermining of the school's moral authority," all to the detriment of "the ability of public schools to socialize youth for productive roles in society." These baleful trends were not "an inevitable byproduct of change in cultural mores" or demographics, Arum adds in Judging School Discipline. Rather, "liberal public school advocates" must face the reality that liberal judicial decisions unique to the United States have made our schools uniquely disorderly.

First came Tinker v. Des Moines School District, in 1969, in which the Supreme Court upheld public school students' First Amendment rights to wear black armbands at school to protest the Vietnam War. The justices understandably saw the suspension of these students as an overreaction. But the justices displayed their grandiosity when they suggested that telling students to do their protesting elsewhere would make the schools "enclaves of totalitarianism."

Then came Goss v. Lopez, in 1975, which ruled in favor of (among others) students suspended for a few days for brawling in a school lunchroom and for attacking a police officer in a school auditorium, in Columbus, Ohio. All public school students have constitutional rights not to be suspended even for a single day without notice and a due process hearing, the justices held.

However reasonable Tinker might seem on its facts, and however informal might be the due process hearings demanded by Goss, the consequences have been far more profound than allowing some sartorial protests and requiring some hearings. They have inspired hundreds of lawsuits attacking schools' authority over hair length, grades, dances, student-body elections, school newspapers, alcohol, drugs, violence, and weapons. And even though subsequent Supreme Court decisions sought to set limits to students' litigiousness—by upholding corporal punishment, for example—the genie was out of the bottle.

What's a principal to do if a gang of skinheads shows up wearing swastikas or T-shirts emblazoned with "WHITE POWER"? Are swastikas analogous to black armbands? Are shaved heads protected by precedents upholding students' rights to wear their hair long? "The principal wants to send the kid home to change, but he's not sure it's within his authority to do so, so he calls the superintendent," wrote Kay S. Hymowitz in City Journal. "The superintendent is also unsure, so he calls the district's lawyer. The lawyer's concern, though, isn't that the child has breached the boundaries of respect and tolerance, and needs an adult to tell him so, but whether disciplining the student would violate the First Amendment. Is this, in other words, literally a federal case?"

This legal uncertainty, which clouds every disciplinary decision with doubt and clogs educational systems with complex due process administrative rules, is only the tip of an iceberg of social instability. As consensus over once-unquestioned moral norms has broken down, judicial decisions have, for many, become the default source of moral instruction. So when the Supreme Court gives violent or disruptive students the constitutional right to sue their schools, it also gives them a sense of empowerment against all authority and saddles teachers and administrators with "hesitation, doubt, and weakening of conviction," in Arum's words.

"The mere potential for a lawsuit shrinks the adult in the child's eyes," as Hymowitz puts it. "The natural relationship between adult and child begins to crumble." Educators "hesitate to assert the most basic civic and moral values that might pose a challenge to the crude and status-crazed peer culture." And the language of right and wrong gives way to the language of legalisms, interspersed with therapeutic psychobabble.

Even when disciplinary decisions are upheld, the hearing process grinds down school officials and makes them gun-shy. "I've been named now three times in lawsuits," one principal recalled in a recent Public Agenda survey. "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."

Since the best defense to a complaint by an angry student or parent is rigorous compliance with "due process," teachers focus on documenting their reasons for even the mildest discipline of the worst actors, rather than on how best to teach the students who want to learn. And many teachers and administrators take the path of least resistance by condoning disruptive conduct rather than risking legal battles. One teacher told Public Agenda that he has become hesitant to break up student fights. In the old days, he said, "I was thinking about the kids," and about preventing injury. Now, he's "more thinking of litigation."

Has all this made school discipline more fair? No. Comparative analysis shows, according to Arum, that in states where the courts have been most supportive of student rights against school authority, "students reported that school discipline was both less strict and less fair" (emphasis added).

Congress has also done much damage, beginning with its adoption in 1975 of the law now known as the Individuals with Disabilities Education Act. While justifiably vindicating the rights of wheelchair-bound and other disabled kids (including a onetime client of mine) to free public education, that law has also made it impossible to expel, and extremely difficult to discipline, any student diagnosed as having "serious emotional disturbance"—a concept broad enough to include just about any chronically disruptive child. Even kids who have sexually assaulted their teachers have been returned to their classrooms.

What is to be done? The mindless "zero-tolerance" policies produced by the backlash against disorderly schools have only made matters worse, by further undermining school officials' discretion to use their common sense. Take the case of the 6-year-old who brought a pocketknife that her grandpa had given her to school in response to her teacher's suggestion that kids bring something special that they cherished. "I had to suspend her for several days," a rueful administrator told Public Agenda.

Arum asserts that giving school officials completely unchecked power over students is not the answer. It is for the courts to make clear that they will intervene to ensure fairness only in "situations involving long-term exclusion or suppression of student First Amendment rights."

But it will not be easy to undo the damage. In a dissenting opinion, Justice Hugo Black warned that Tinker would subject "all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students." At the time, it appeared to many that the great civil libertarian had become an old fuddy-duddy. Now he seems more like a prophet.