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Get the Lawyers Out of Schools


Get the Lawyers Out of Schools

April 16, 2000
Urban PolicyOther

Thursday marks the one-year anniversary of the Columbine High School shootings, and school discipline remains front-page news. Just last week in a New York City elementary school, two 11-year-old boys raped a 9-year-old girl, an awful reminder that school crime is affecting children of ever-younger ages. What next? More conflict resolution courses, metal detectors and zero tolerance policies? These approaches can probably make our children a little safer at times. But none of them really addresses the long and complex decline of adult authority in our nation's schools.

School discipline today would be a tougher problem than ever because of the nationwide increase of troubled families and disorderly kids. Some schools even have students who are violent felons. But today, principals lack the tools they once had for dealing with the unruliest kids.

Once, they could expel such kids or send them to special schools for the hard-to-discipline. But the special schools have largely vanished, and state laws usually don't allow for permanent expulsion. So at best, a school now might manage to transfer a student felon elsewhere in the same district.

Educators today also find their hands tied when dealing with another disruptive — and much larger — group of pupils, those covered by the 1975 Individuals with Disabilities Education Act. This law, which mandates that schools provide a "free and appropriate education" for children regardless of disability, effectively strips educators of the authority to transfer or suspend for long periods any student classified as needing special education.

Over the past several decades, the number of children classified under the vaguely defined disability categories of "learning disability" and "emotional disturbance" has exploded. Many of these kids are those once called "antisocial." Prosecutors report that disproportionate numbers of the juvenile criminals they now see are special ed students. With the act's restrictions hampering them, school officials can't respond forcefully when these kids get into fights, curse teachers or even put students and staff at serious risk, as too often happens.

School discipline isn't primarily about expelling kids who get into fights or threaten teachers, of course. Most of the time, what's involved is the "don't whisper in class" kind of discipline that allows teachers to assume that kids will follow their commonplace directions. Thanks to two Supreme Court decisions, though, this everyday authority has come under attack, too.

The first decision, Tinker vs. Des Moines School District, came about in 1969, after a principal suspended five high school students for wearing black armbands to protest the Vietnam War. Tinker found that the school had violated students' free-speech rights. "It can hardly be argued," Justice Abe Fortas wrote for the majority, "that students or teachers shed their constitutional rights to free speech or expression at the schoolhouse gate." After Tinker, educators' power to instill civility and order in school soon dissolved into tendentious debates over the exact meaning of legal protections.

In 1975, the Supreme Court hampered school officials' authority yet further in Goss vs. Lopez, a decision that expanded the due-process rights of students. Goss concerned several students suspended for brawling in the school lunchroom. Though the principal who suspended them witnessed the fight, the court concluded that he had failed to give the students an adequate hearing.

Students, pronounced the court, are citizens with a property right to their education. To deny that right required, at the least, an informal hearing with notice, witnesses and the like. Suspensions for longer than 10 days might require even more formal procedures. To suspend a student became a time-consuming and frustrating business.

Students soon learned that if school officials do something they don't like, they can sue them, or at least threaten to do so. New York City special ed teacher Jeffrey Gerstel's story is sadly typical. Last year, Gerstel pulled a student out of his classroom as he was threatening to kill the assistant teacher. The boy crashed into a bookcase and cut his back, though not badly enough to need medical attention.

Still, Gerstel found himself at a hearing, facing the student's indignant mother, who wanted to sue, and three "emotionally disturbed" classmates of the boy who witnessed the scuffle. The mother soon settled the dispute and sent her son back to Gerstel's classroom. But by then, Gerstel had lost the confidence needed to handle a roomful of volatile teenagers, and the kids knew it.

These days, school lawyers will tell you, this kind of problem is clearing up, as courts have begun siding with schools in discipline cases. But the damage done by Tinker, Goss and their ilk isn't so easily undone. The mere potential for a lawsuit transforms the teacher, the person who should be the representative of society's moral values, into a civil servant who may or may not please the young, rights-armed citizen. The natural relationship between adult and child begins to crumble.

School bureaucracies have struggled to restore discipline, but their efforts have only alienated students and undermined adult authority even more. Their first stratagem has been to bring in the lawyers to help them craft regulations, policies and procedures. These legalistic rules, designed more to avoid lawsuits than to establish classroom order, are inevitably abstract and inflexible.

Putting them into practice often gives rise to arbitrary and capricious decisions. Take zero-tolerance policies mandating automatic suspension of students for the worst offenses. These proliferated in the wake of Congress' 1994 Gun-Free Schools Act, which required school districts to boot out students caught with firearms for a full year. Many school boards fell into a kind of bureaucratic mania. Why not require suspension for any weapon? A nail file? A plastic Nerf gun? Common sense went out the window.

Worse, the influence of lawyers over school discipline means that educators speak to children in an unrecognizable legalistic language, far removed from the straight talk about right and wrong that children crave.

When educators aren't talking like lawyers, they're sounding like therapists, for they've called in the psychobabblers and psychologists to reinforce the attorneys in helping them reestablish school discipline.

School bureaucrats have rushed to implement trendy-sounding research-based programs — emotional literacy training, anti-bullying workshops and the like — as preventive measures for discipline problems. Of dubious efficacy, these nostrums seek to control behavior in the crudest, most mechanical way. Nowhere is there any indication that adults are instilling in the young qualities they believe in and consider integral to a good life and a decent community. Kids find little here, either, that their innate sociality and longing for meaning can respond to.

The full consequence of these dramatic changes has been to prevent principals and teachers from creating the kind of moral community that is the most powerful guarantor of good discipline ever devised. When things work as they should, principals forge a cohesive society with clear shared values, whose observance confers a sense of worth on those who subscribe to them. A community of shared values must be personal, enforced by the sense that the authority figure is protective, benevolent and worthy of respect. To create such a school these days, though, requires heroic effort.

Instead, most principals tend to become lower-level managers, administering decisions made from above. They're defensive. "Don't touch anyone. Mind your own business," is the way one principal summed up her profound thinking on the subject. In tough middle and high schools, this attitude is pervasive among teachers, too.

The collapse of adult authority over kids practically guarantees their mistrust and alienation. Schools tend to become what sociologist James Coleman called an "adolescent society," dominated by concern with dating, sex and consumerism. The loss of adult guidance makes it certain that adolescent society will continue in its sovereignty.

While it's easy to lose sight of this truth under the current system, there's nothing particularly complex about defining moral expectations for children. At one successful inner-city middle school, a sign on the walls says, "WORK HARD, BE KIND; BE KIND, WORK HARD." If schools can instill just those two values, they will have accomplished about all we could ask.