Fear of Litigation

Many school districts and teachers believe that they are constantly under attack by circumstances that are beyond their control. In addition to providing a safe learning environment for students of a community, many educational professionals are being threatened with litigation. Preventative law can be a proactive approach toward eliminating litigation in school districts. Also, parent involvement in local school districts can encourage positive relationships between parents, students, teachers and principals.

Keywords Educational Law; First Amendment; Litigation; Weedsport Central School District; No Child Left Behind Act; Parent; Public Schools; Preventive Law; Standardized Tests; Wisniewski, Aaron

Overview

Many school districts and teachers believe that they are constantly under attack by circumstances that are beyond their control. In addition to providing a safe learning environment for students of a community, many educational professionals are being threatened with litigation. Over the years, there have been many cases focusing on issues such as sex, racial discrimination, and freedom of speech.

Harris Interactive Market Research (2004) was contracted on behalf of Common Good to conduct a survey on litigation in public schools. The organization was charged with exploring how regulations, due process and lawsuits affect the way that public school principals and teachers perform their jobs. Some of the specific areas that they were asked to target include:

• Overall job satisfaction among teachers and principals.

• Their concerns and awareness of possible legal challenges.

• How legal anxiety affects their attitudes toward their jobs.

• How legal anxiety impacts their teaching and managing.

• Possible solutions to improve the overall quality of education while reducing the potential influence of legal overload in education (p. 4).

The firm contacted 500 K-12 public school teachers and 301 K-12 public school principals between September 18 and October 6, 2003. The researchers spoke to the participants via the telephone and interviewed each person for about 15 minutes. After the researchers conducted the first set of interviews, they reviewed the data and realized that additional questions were raised regarding the degree to which fear of legal challenge is an issue for educators and how much this concern affects their attitudes and behaviors as educators.

As a result, the decision was made to follow-up by re-interviewing all of the respondents by asking them a subset of questions from the original survey in order to gain a better understanding of the educators' views. Two hundred and thirty teachers and 167 principals were successfully re-interviewed. The second set of interviews occurred between October 24 and November 2, 2003. The data for the teachers were weighted by age, gender, education, race and ethnicity, region and urbanicity in order to ascertain that their proportions were representative of the population. Data for principals were weighted by type of school, gender, race and region.

Significant findings from the study were as follows:

Attitudes & Concerns toward the Current Environment

• Most educators agreed that the current legal climate has resulted in a phenomenon that could be considered "defensive teaching."

• While educators are generally satisfied with their jobs, more than half were concerned about the risks of legal challenges. Such concerns have increased over the years.

• Consistent with their overall level of concern about legal challenge, the findings show that for significant proportions of teachers and principals, concern about legal challenge is the same or greater than their concern about compliance with the No Child Left Behind Act and results on standardized tests.

• A majority of the educators are somewhat worried that a decision they make will be challenged legally.

• This concern and fear about legal challenges has caused a majority of the educators to engage in a variety of protective behaviors.

Experience with or Knowledge of Lawsuits or Legal Challenges

• While the majority of educators have never been sued personally, significant minorities of teachers and principals know other educators who have been sued by students or parents. While this may not be widespread, principals are more vulnerable to these situations than teachers.

Impact of the Current Environment

• The potential for increased legal challenges and legal mandates have hurt many educators' ability to do their jobs.

• Consistent with the previous findings, majorities of teachers and principals believe fewer laws; rules and legal mandates would help them and would improve the quality of education and discipline.

• Fear of legal challenge has affected the willingness of many educators to perform a variety of activities.

Reasons for an Increased Legal Environment & Possible Solutions

• Educators unanimously agreed that a bureaucratic mindset was a main reason for an increased legal environment. Many also felt that distrust of teachers was a major contributing factor.

• However, some aspects of education as a profession appear to need attention, especially as they relate to retaining good professionals.

• There is strong support for a variety of solutions, many of which would shift the balance of power back into the hands of educators rather than having the law loom over every decision made and action taken. Reducing the potential to legally challenge daily management decisions, and replacing lawsuits or legal hearings with oversight by a school-based committee, are viewed as possibly being helpful in improving the quality of education.

Context for Examining the Current Environment

• Despite their concerns over the threat of legal challenges, educators have high levels of job satisfaction and believe they are providing quality education.

• Since starting in education, many teachers and principals believe their ability to provide a quality education or maintain order in the classroom has worsened or remained the same.

• Teachers and principals perceive that students and parents view them as legitimate authority figures. They also think that students have at least some knowledge of their potential legal rights and are willing to exercise these rights.

• When it comes to the administration of discipline in schools, teachers and principals have different views about the degrees of fairness and strictness. Principals, perhaps because they have a larger role in shaping the discipline policy in a school, have more positive views than teachers of how discipline is administered in their schools.

Court Cases Involving Public Schools

Are these concerns valid, and does the public school system have to worry about potential lawsuits? Yes, the concerns are valid. The number of lawsuits filed against teachers and school districts is on the rise. For example, let's consider the court case, Weedsport Central School District v. Wisniewski.

Weedsport Central School District v. Wisniewski

Ardia (2007) provided background information on how this court case started. Aaron Wisniewski was an eighth grader in the Weedsport Central School District. He sent an instant message to a group of his friends, and the message included a "buddy icon" that Aaron has designed. The icon was a picture of a pistol firing at a man's head with the words, "Kill, Mr. VanderMolen." Mr. VanderMolen was one of Aaron's teachers.

For three weeks, Aaron used the icon on his avatar as he corresponded with 15 of his friends. He never sent the instant messages during school hours or to school staff. However, a classmate saw Aaron's IM avatar and sent of copy of it to Mr. VanderMolen When the teacher saw the icon, he became distressed and contacted the principal. The principal informed the superintendent and the police (Carvin, 2007). When the school district became aware of the icon, school officials suspended Aaron for five days. However, the time was extended to a full semester once there was a Superintendent's hearing. In addition to the suspension, the school ruled that Aaron could not participate in extracurricular activities during this period of time (Ardia, 2007).

Aaron and his parents sued the school district and superintendent in a federal court in New York on the grounds that they had violated Aaron's first amendment rights. According to the parents, no actual threat was intended and the suspension violated his free speech rights, especially since the action in question took place off campus (Carvin, 2007). The district court granted the school district's motion for a summary judgment, in which it was ruled that the icon constituted a true threat. Therefore, the icon was not protected by the first amendment (Ardia, 2007).

The 2nd Circuit affirmed this ruling when it was appealed. The 2nd U.S. Circuit Court of Appeals stated that "even if sending the message could be seen as an expression of opinion, it still crossed the boundary of protected speech and constituted student conduct that posed a reasonably foreseeable risk that the icon would come to the attention of school authorities and disrupt the work of the school" (Hamblett, 2007, par. 2). The circuit referred to Tinker v. Des Moines Independent Community School District as a case that set precedence for this type of ruling (Hamblett, 2007; Carvin, 2007).

Application

Preventive Law

Based on recent trends, it appears that litigation is on the rise in educational institutions.

Research has indicated that most cases can be tied to decisions boards have made. For example, Hazard (1978) believes that the role of the school boards in policy making has changed. It appears that when parents and local groups do not like the decisions made by the board, they see it as an opportunity to pursue litigation. Hazard (1978) formulated several propositions about outside influences on board policy making:

• Little is known abut the way board decisions are influenced by court decisions;

• Court decisions on policy issues may be more dramatic than other determinants, but whether they are more effective is not clear;

• The impact of court-made policy on the schooling process is largely unknown; and

• Court decisions are more powerful determinants of educational policy than any action of local control or school board autonomy.

How can the school system minimize the risk of costly lawsuits, such as the one mentioned above, from happening? Hawkins (1987) believes that this can be done through preventive law. He believes that this type of law is needed due to:

• Changing elements in educational law that make it difficult to understand and administer complex regulations.

• Educators making decisions contrary to their own personal value systems.

• Disagreements resulting from individuals who do not follow the rules.

• The problem of enforcing rules.

• A significant increase in litigation and a need for an alternative process for handling conflict (p. 9).

Preventive law is based on the assumption that "the greater the use of preventive law strategies, the less the need for conflict resolution through litigation" (Hawkins, 1985, p. 11). As a result, the concept of preventive law should assist school districts with minimizing court cases as well as improve the probability of a ruling in favor of the district when disputes go to litigation.

Viewpoint

Parent Involvement

When there is a problem, it is typical of human behavior to place the blame on others. As one looks to the school system, there is a tendency to place its failure at the hands of a variety of stakeholders. "Parents, children, educators and service providers often blame each other while the children are caught in the middle" (Lawson, Briar-Lawson & Miami University, 1997, p. 8). However, this vicious cycle must be broken. Communities must come together to decide what is best for the child. Otherwise, there is potential for the United States to lose its economic power as the result of an uneducated and under prepared working population.

Many communities across the country have been supportive of initiatives that form a partnership between schools, parents and students. In an effort to increase participation from all three constituencies, policy guidelines have been developed to assist in the implementation of potential programs and opportunities for these three groups to come together.

Griffith (1998) conducted a study, which focused on the examination of the features of a school's physical and social environment that may be associated with different levels of parent involvement. He believed that his results would provide the reasons or motivational bases for parent involvement, which could be the first step in developing interventions that would increase parent involvement. His findings were categorized into two levels - individual and school. The results were as follows:

• Individual Level

• Hispanic, African American and Asian American parents reported less participation in school activities than did white parents.

• Lower socioeconomic standing was associated with lower parent participation in school activities.

• Parents of children enrolled in special education and English as a Second Language (ESOL) reported less involvement whereas parents of students enrolled in the gifted and talented programs reported more involvement.

• Parents of second grade children and those who had multiple children attending public schools were more involved; whereas, parents of fifth and sixth graders were less involved.

• Parents who perceived their school as safe, as empowering parents and as having a positive climate reported higher participation in school activities.

• School Level

• The composition of the student population was related to parent involvement.

• Schools having lower parent involvement had greater student turnover, both students new to the district and to the school.

• Schools with lower involvement had greater percentages of students living in poverty households and greater percentages of children who were African American, Asian American, and Hispanic.

• Schools having more parent involvement had parents who perceived the school as empowering them and not informing them of their children's education.

• Schools perceived by parents as lacking safety, quality instruction, and student recognition had more parent involvement (Griffith, 1998, p. 67-68).

"Governing boards and administrators must deal with conflict and bring about acceptable solutions" (Hawkins, 1985, p. 9). The coalition between teachers, principals, parents and students may be a way to minimize the effects and anxiety of litigation in the public schools across the country. By coming together and communicating, each constituency will have the opportunities to express their concerns as well as some of the potential problems that could occur in the school districts. It is only through open communication and trust that the public school systems can minimize the risk of costly litigations and get back to the business of what they were hired to do - provide a conducive learning environment that allows children to be educated.

Conclusion

Many school districts and teachers believe that they are constantly under attack by circumstances that are beyond their control. In addition to providing a safe learning environment for students of a community, many education professionals are being threatened with litigation. Over the years, there have been many cases focusing on issues such as sex, racial discrimination, and freedom of speech.

Harris Interactive Market Research (2004) was contracted on behalf of Common Good to conduct a survey on litigation in public schools. The organization was charged with exploring how regulations, due process and lawsuits affect the way that public school principals and teachers perform their jobs.

How can the school system minimize the risk of costly lawsuits, such as the one mentioned above, from happening? Hawkins (1987) believes that this can be done through preventive law. He believes that this type of law is needed due to:

• Changing elements in educational law that make it difficult to understand and administer complex regulations.

• Educators making decisions contrary to their own personal value systems.

• Disagreements resulting from individuals who do not follow the rules.

• The problem of enforcing rules.

• A significant increase in litigation and a need for an alternative process for handling conflict (p. 9).

When there is a problem, it is typical of human behavior to place the blame on others. As one looks to the school system, there is a tendency to place its failure at the hands of a variety of stakeholders. "Parents, children, educators and service providers often blame each other while the children are caught in the middle" (Lawson, Briar-Lawson & Miami University, 1997, p. 8). However, this vicious cycle must be broken. Communities must come together to decide what is best for the child. Otherwise, there is potential for the United States to lose its economic power as the result of an uneducated and under prepared working population.

The coalition between teachers, principals, parents and students may be a way to minimize the affects and anxiety of litigation in the public schools across the country. By coming together and communicating, each constituency will have the opportunities to express their concerns as well as some of the potential problems that could occur in the school districts. It is only through open communication and trust that the public school systems can minimize the risk of costly litigations and get back to the business of what they were hired to do - provide a conducive learning environment that allows children to be educated.

Terms & Concepts

Aaron Wisniewski: Eighth grade student at Weedsport Middle School in the Weedsport Central School District, who was suspended for creating an icon negatively depicting a teacher.

Educational Law: The area of law relating to schools; deals mainly with schools, school systems and school boards charged with educating our children.

First Amendment: An amendment to the Constitution of the United States guaranteeing the right of free expression; includes freedom of assembly, freedom of the press, freedom of religion and freedom of speech.

Litigation: A legal proceeding in a court; a judicial contest to determine and enforce legal rights.

Weedsport Central School District: School district in the state of New York, which was involved in litigation with a student by the name of Aaron Wisniewski.

No Child Left Behind Act: A federal law to improve education for all children.

Parent: A natural or adoptive parent of a child; a guardian, but not the state if the child is a ward of the state; or a foster parent if the natural parents' authority to make educational decisions on the child's behalf has been extinguished and the foster parent has an ongoing, long-term parental relationship with the child and is willing to make the educational decisions required of parents.

Public Schools: An elementary or secondary school in the United States supported by public funds and providing free education for children of a community or district.

Preventive Law: The voluntary revision of school district policies and procedures to lessen or obviate potential litigation.

Standardized Tests: A test administered and scored in a standard manner. The tests are designed in such a way that the "questions, conditions for administering, scoring procedures, and interpretations are consistent" and are "administered and scored in a predetermined, standard manner."

Bibliography

Ardia, D. (2007, October 23). Weedsport Central School Distinct V. Wisniewski. Retrieved November 29, 2007, from http://www.citmedialaw.org/threats/weedsport-central-school-district-v-wisniewski

Carvin, A. (2007, July 10). Court rules against student suspended over threatening instant messaging avatar. Retrieved November 29, 2007, from http://www.pbs.org/teachers/learning.now/2007/07/court_rules_against_student_su.html

Griffith, J. (1998). The relation of school structure and social environment to parent involvement in elementary schools. The Elementary School Journal, 99 , 53-80.

Hamblett, M. (2007, July 6). 2nd Circuit upholds student's suspension for instant messaging violent image. New York Law Journal.

Harris Interactive Market Research (2004, March 10). Evaluating attitudes toward the threat of legal challenges in public schools.

Hawkins, H. (1986). Preventive law: Strategies for avoidance of litigation in public schools. UCEA monograph series.

Hazard, W. (1978). Education and the law, 2nd edition. New York: The Free Press.

Holben, D., & Zirkel, P.A. (2011). Empirical trends in teacher tort liability for student fights. Journal of Law & Education, 40, 151-169. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=58718308&site=ehost-live

Holben, D., Zlrkel, P.A., & Caskie, G.L. (2009). Teacher fear of litigation for disciplinary actions. Journal of School Leadership, 19, 559-585. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=55133211&site=ehost-live

Lawson, H., Briar-Lawson, K., & Miami University (1997, January 1). Connecting the dots: Progress toward the integration of school reform, school-linked services, parent involvement and community schools. (ERIC Document Reproduction Service No. ED409696).

Zirkel, P.A. (2013). Public school student bullying and suicidal behaviors: A fatal combination?. Journal of Law & Education, 42, 633-652. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=90540778&site=ehost-live

Suggested Reading

Bushweller, K. (2003). Threat of legal action worries educators. Education Week, 23 , 11. Retrieved December 3, 2007, from EBSCO Online Database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=11722978&site=ehost-live

Gross misconduct is a difficult claim to prove. (2002). ERISA Litigation Alert, 8 , 6-7. Retrieved December 3, 2007, from EBSCO Online Database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=6967813&site=ehost-live

Toglia, T. V. (2007). How does the family rights and privacy act affect you?

Education Digest, 73 , 61-65. Retrieved December 3, 2007, from EBSCO Online Database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=27177344&site=ehost-live

Zimmerman, S., Kramer, K., & Trowbridge, M.J. (2013). Overcoming legal liability concerns for school-based physical activity promotion. American Journal of Public Health, 103, 1962-1968. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=90627284&site=ehost-live