School Suits
by Tresa Baldas
National Law Journal
May 17, 2004

Eighty-two percent of teachers and 77 percent of principals say the current legal climate is leading to defensive teaching--decisions are motivated by a desire to avoid legal challenges. This was the finding of a recent Harris Poll commissioned by Common Good and reported on by the National Law Journal (NLJ) on May 17, 2004.

"The overhanging threat of law in schools is like the anaconda in a chandelier--it's sort of looking down on you, poised to strike," CG Director of Policy Nancy Udell told NLJ:

"Schools are seeing lawsuits of all kinds, from students angry over bad grades to excessive-punishment cases to complaints like "my kid didn't make the cheerleading squad."... [W]hile there is no data on how many suits are filed against schools, educators fear the climate is ripe for more legal challenges as education has grown more complex. ... [S]ince the U.S. Supreme Court's landmark 1974 Goss v. Lopez case, which recognized the rights of students to some due process, 1,200 school discipline cases have gone to the appellate level."

School attorney Sharon Moore agrees that legal challenges are altering the way educators interact with students. "The effect that being a defendant in a lawsuit [has] for a teacher or an educator can't be underestimated. It's very intimidating," she said. "I feel that coaches and educators in general are going to be much more concerned about their potential liability when they have dealings with a student and have to criticize that student."

But Attorney Kevin Little disagrees:

[He] represents a California student suing over a bad grade, [and] said that "unfortunately, the law does not go far enough" in protecting students from unfair teaching practices. ...

Little represents eighth grader Brandy Hurd, who on April 11 sued a teacher and superintendent with the Island Union Elementary School District over a C grade she received in physical education last year. Hurd v. Hansen, No. CIV-F-04-5560 AWI DLB (E.D. Calif.). Little said the grade affected Hurd's standing as class valedictorian. He said the teacher, Julie Hansen, unfairly graded Hurd, whom he described as a straight-A student and top athlete, and that Hansen's assessment may have been racially motivated.

Attorney Robert Rosati, who is representing the teacher and superintendent, said Hurd's grade was a result of a poor attitude. He said Hurd and several other seventh graders would walk around the racetrack, instead of running as told.

"Apparently the lady had a bad attitude with the teacher," said Rosati, of Sanjoaquin Partnership in Fresno. "It says right on the report card-effort and attitude. It's not a measure of athletic ability."

Rosati called the suit "frivolous" with little chance for survival. He said in the 15 years that he has defended schools, he's handled about 150 lawsuits and lost only twice.

Education law expert Perry Zirkel suggested that litigation isn't a problem in our public schools because, "If you look at the ultimate outcomes of these frivolous suits, school districts consistently win them."

Zirkel is right that courst favor schools, Udell told NLJ. "But even if shools win most of the time ... what damage is done by time-consuming and costly suits?"

"People have to be dragged into court, be deposed and be cross-examined and [forced to] take time away from teaching," she said. "No one wants to go through that."