An ugly reality lurks behind the propped-up rhetoric, opaque smoke and cracked mirrors that make President Bush's education bill look like it will leave no child behind. Both the House and Senate versions contain language that will hurt many students, and then take away their legal right to do anything about it.
In early summer, both houses overwhelmingly approved the deceptively named Teacher Liability Protection Act amendment, amid super-predator-esque speeches about protecting our educators from violent children. House Education Chairman John Boehner, R-Ohio, brags that the bipartisan amendment would allow "teachers to remove violent and persistently disruptive students from the classroom without fear of legal repercussions."
That isn't all this thinly disguised tort-reform measure does. Both chambers' versions would immunize all school officials -- teachers, principals and other school officials -- against civil liability and punitive damages for their attempts to discipline students. Most shocking, the House would also immunize entire entities such as school boards and entire school districts. Read that again: The House wants to immunize school boards -- and you wonder why an amendment with such a pro-educator label wouldn't have the teachers' unions howling for its approval? Because it's a legal rat's nest -&endash; and one that the tort-reform crowd is salivating for: You have to start somewhere.
The amendment would bring needed tort reform to the schools, ridding them of "frivolous lawsuits," says Victor Schwartz of the American Tort Reform Association, which was asked to author the legislation by the elementary and high school principals' associations, he says. "It's a sieve of a bill designed to get rid of the junk," he said. He did not provide figures, but said that taxpayers are paying too much money to settle useless lawsuits brought by parents and students.
Let's break it down. School districts are indeed seeing more lawsuits brought by parents and students in recent years. Why? Because school districts are overreacting to highly publicized school-violence cases -- and public fear -- by expelling more and more students on shaky ground at best. This student had a butter knife in her lunch box, that student was "disrespectful," another one "assaulted" a kid on the playground (in what used to be called a "scuffle"), that one over there drew a threatening picture during art class, still another took a sip of vodka on a band trip, that one actually picked up a beer to pour it out. Ding, ding: They're all caught in the zero-tolerance net. Out they go, ostensibly leaving safer schools behind, although there is no proof, nada, behind that myth. (Never mind whether the community safety bar falls in response, or whether another kid like Kip Kinkel, the student suspended in Oregon, will return to school with a loaded gun and a score to settle.)
The Department of Education reported last year that the annual suspension rate nearly doubled between 1974 and 1998 with 3.1 million students suspended in 1998, and 87,000 expelled. The numbers also show where this "non-discretionary" discipline scheme falls apart: Of expulsions, 31% were black, although they account for only 17% of the student population. One in four black males was suspended at least once over a four-year period. There's some discretion in there somewhere, baby.
As a result of this expulsion mania, families are fighting back, as well they should. In many cases, their kids are ending up on the streets with no alternative schooling, or at least with sullied records that keep them out of good colleges. In response, many of those families are suing the people and institutions that are putting their kids on the streets. But due to increasingly conservative court precedents that are unfriendly to the rights of school-age citizens, many families are losing or, at the best, settling their cases. It isn't pretty for them: ACLU President Nadine Strossen said last year at Columbia University that many attorneys are just trying to settle cases brought on behalf of families for unfair discipline.
Schwartz, though, says school boards shouldn't be put in the position to settle when families bring what he believes are clearly frivolous suits over expulsions. Under the Teacher Liability Protection Act, judges could just throw out many frivolous claims before they get to the settlement stage. "Taxpayers in America shouldn't be paying for baseless lawsuits when education dollars are scarce," he says.
Of course, "baseless" is in the eye of the beholder. Is it "baseless" to expel a student under a firmly worded zero-tolerance policy that allows no room for discretion or even common sense? And is it "baseless" to sue in response? Judith Browne of the Advancement Project, which has been exposing the unfair effect of zero tolerance on minority kids, says it's silly policy that's drawing the lawsuit in the first place. "We give this power to teachers, then immunize them from liability? We have to have some checks and balances here. We're stripping students of all their rights, and they can't even seek redress in court? It defies democracy," Browne says.
Perhaps most telling is the teachers' union response to the "protection" effort. "We don't think it's necessary," said National Education Association lobbyist Joel Packer. "There's a lot of protection in state law." The House version goes way too far in its protection of entities such as school boards, he added. "It's actually very deceptive and much more far-reaching ... The way it's worded is very Orwellian. Only the Congress would possibly define a 'teacher' as a school district. ... Is the federal government going to next exempt police departments from being sued?" Further, both unions worry that teachers would be kept from suing school boards under the House's broad immunity. And, adds the American Federation of Teachers' legislation director Charlotte Fraas, "There's a question why federal law should supercede state law."
Chuck Piechota (www.ztnightmares.com), the father of a honor student expelled from a Colorado high school after turning himself for drinking vodka on a band trip, says families need all the avenues at their disposal. "If parents cannot get fair and equitable treatment in the school districts, the only place they can turn is the courts," said Piechota, who lost his civil case against the school board. "By passing this teacher-liability amendment, the flood gates will be opened for zero tolerance-based nightmares for students and their families," he said.
Ultimately, it boils down to one question: Why should schools be turned into tort-reform laboratories? It makes no sense to limit the checks and balances that the threat of lawsuits can help bring to our schools. No, I-the-taxpayer do not want to help pay millions of dollars in damages due to zero-tolerance madness. But I want my savings to come because our educators and education entities aren't wallowing in stupidity and damaging our children in the first place, not because the anti-tort lobby and its Congress gave them a pass.
Donna Ladd is a Packard Future of Children fellow in Jackson, Miss. E-mail her at firstname.lastname@example.org.