Press Release Source: Common Good

Leading Education Reform Experts Endorse Legislation Introduced by U.S. Senator Zell Miller
Tuesday June 29, 3:16 pm ET
Proposed Bills Would Clarify and Ease Legal Burden on Schools - Reducing the Need for Lawyers and Legal Proceedings

NEW YORK, June 29 /PRNewswire/ -- Common Good announced today that some of the leading education reform experts in the nation have endorsed two new bills recently introduced in the U.S. Senate by Senator Zell Miller (D-GA).
The "Fairness in School Discipline Act" (S. 2404) sets clear guidelines for Federal due process required in connection with school disciplinary procedures. It seeks to correct a widespread misconception over what federal law requires in the way of due process when a student is suspended for unruly behavior. For example, when a student is suspended for 10 days or less, principals are obligated only to explain the reason for the suspension to the student and to let the student tell his or her side of the story. The bill clarifies that federal law does not require schools to allow the student to appeal the principal's decision, involve lawyers, or hold legal proceedings of any kind in these cases.

The "Restoring Authority to Schools Act of 2004" (S. 2405) would limit federal court oversight of schools to curing only violations of federal law in the least intrusive manner and limit the length of oversight to two years in most cases. The Act would not apply to desegregation cases.

The experts endorsing these bills include the following. They have each endorsed both bills, even though their comments may focus on one or the other.

Richard Arum, PhD, Professor of Sociology at New York University and author of Judging School Discipline: The Crisis of Moral Authority. He commented:

"Senator Miller's Fairness in School Discipline Act is an important first
step that will work to remedy the negative effects of legal challenges to
ordinary day-to-day school discipline. Research demonstrates that court
challenges in this area have undermined the capacity of school personnel
to educate and socialize students effectively."

Ross Sandler, JD, and David Schoenbrod, PhD, Professors at New York Law School and co-authors of Democracy by Decree: What Happens When Courts Run Government. They commented:

"We applaud Senator Miller for introducing the Restoring Authority to
Schools Act of 2004. The Act advances one of the key solutions proposed
in our book on the problems caused when courts run schools and other
government institutions by decree. The Act would return courts to their
proper role of enforcing rights and get them out of the business of
micro-managing day-to-day operations."

Diane Ravitch, Research Professor of Education at New York University, former U.S. Assistant Secretary of Education and author of The Language Police: How Pressure Groups Restrict What Students Learn. She commented:

"Senator Miller's bills take an important step toward restoring order in
the classroom and enabling teachers to exercise adult authority and to
teach willing students."

"Senator Zell Miller deserves great credit for taking two essential
education reforms and introducing them as bills in Congress," said Philip
K. Howard, Chair of Common Good. "With the enthusiastic support of the
notable education experts cited here, these bills now deserve the most
serious consideration on Capitol Hill."

For further information or to speak with any of the experts cited here, please contact Danielle Rhoades at 212-576-2700.

Common Good is a bi-partisan legal reform coalition dedicated to restoring common sense to American law. Its board is composed of leaders in a wide range of fields: former government officials, including Griffin Bell, Newt Gingrich, Eric Holder, George McGovern, Diane Ravitch, Alan Simpson, and Richard Thornburgh; current and former university presidents, including Tom Kean, George Rupp, and John Silber, and numerous other leaders in education, healthcare, law, business and public policy. The Chair of Common Good is Philip K. Howard, a lawyer and author of The Death of Common Sense and The Collapse of the Common Good.

Further information on Common Good is available at http://www.cgood.org .
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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.

Udell explained:

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 courts 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."