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Has the Threat of Lawsuits Changed Our Schools?

ImageA recent survey revealed that the majority of school principals have been threatened with lawsuits -- lawsuits that have changed the atmosphere in their schools. Education World's "Principal Files" team members offer their perspectives. Included: Included: Handling lawsuits threatened by disgruntled parents and teachers.

A recent Harris Interactive survey conducted for the organization Common Good revealed that 82 percent of teachers and 77 percent of principals say the current legal climate has changed the way they work. More than 60 percent of principals surveyed said they had been threatened with a legal challenge.

Armed with that information, we chatted with our "Principal Files" Principals. We wanted to hear their take on the survey results and on how a general trend in society toward increased litigation is affecting themselves, their teachers, and their schools. The response we got is clear: the issue is on their radar screens. For some it's a mere blip and for others the issue is in sharp focus.

AN ARRAY OF ISSUES

"The current legal atmosphere creates a more cautious approach for me and my district," Dr. Lee Yeager, principal at S&S Middle School in Sadler, Texas, told Education World. "We are always considering the legal ramifications of issues with students and staff. The threat of a lawsuit, no matter how frivolous, is something that colors many decisions we make."

"Special Education, 504 [equal access to programs for people with disabilities], sexual harassment, and conduct issues place a great deal of demand on school administrators today," said Dr. James Jordan, principal of Chapin (South Carolina) High School. "It appears that many people believe the lawsuit is the way to improved services from schools or to make the school 'pay for what it did to their child.'"

Many parents and community members don't see schools as their partners, added Jordan. "This is unfortunate. Schools, communities, and parents should work together to improve our educational institutions for all children."

"Since I serve as both the principal and superintendent of my district, I have experienced many legal issues," Mary Smith told Education World. "I suspended a student about seven years ago and I had a phone call from a lawyer before the parent arrived to pick up the student.

"I look at everything from a legal perspective. When I come across new territory in decision-making, I imagine myself on the witness stand being cross-examined. I mentally review my answers."

The current legal atmosphere has forced administrators to err on the side of caution, which provides a safety net for students but sometimes stymies spontaneous activity, added Smith, of the Whitebead (Oklahoma) School District.

Pat Green has been in education for more than 30 years. During that time, she has watched the world become more litigious. "I've heard folks banter, 'I'm going to call my lawyer,' when they dislike a decision I've made, regardless of the nature of the choices -- good or poor -- they or their child made. It's an easy mantra meant to create an aura of fear."

"However," added Green, who is principal at Cedar Heights Junior High School in Port Orchard, Washington, "if you are doing your job correctly, treating people fairly, being consistent in the implementation of policies and procedures, and keeping proper documentation, the threat of legal action isn't something that causes fear or trepidation for school leaders at a building level."

Lesson Learned #1
Location: Southern United States

One of our teachers was not performing effectively in the classroom. She arrived late for school, left school during the day, and used profanity in the classroom. Rumors also persisted about domestic violence at home and involvement with drugs. The first concerns were job-related; the others were off-duty-conduct items. The school's responsibility was to deal with those "job related" issues, identify areas needing correction, create a plan of improvement, involve the union from the beginning to serve as an advocate for the teacher, and fairly document progress or lack thereof. Contract termination followed due process and the individual is no longer working as a teacher in our district.

The Lesson: The off-duty behaviors could not be brought into this termination case at all unless we could prove that they affected performance. Administrators need to be highly trained and able to discern concerns that are directly applicable to possible legal actions at school and those that are of interest, but not directly applicable, to contract termination.

Michael McNeece, principal at Itawamba High School in Fulton, Mississippi, doesn't lose a lot of sleep over the threat of legal action, but he always tries to anticipate and prevent problems, especially legal problems. "One of my most important jobs and a constant thought as I walk around the school is 'What's the worst thing that could happen in this place, this room, this hallway?'

"For all administrators, the question is not 'Will I stand before a judge?' Rather, the thought is 'When I stand before the judge, will I be on the winning side?'"

By keeping students at the forefront of all decisions, principals are prepared to win, added McNeece.

The threat of legal action can easily steal away a principal's focus. "The real challenge is for administrators to remain focused on moving forward while the major drain on energy would have us looking over our shoulders," said one principal who chose to remain anonymous. "It is difficult to look forward when your head is pointed backward."

Principal Addie Gaines of Kirbyville (Missouri) Elementary School hasn't dealt with any lawsuits firsthand, but she definitely has a heightened awareness of them. "No principal or teacher escapes the concerns of litigation," said Gaines. "Today, teachers and administrators alike are more likely to carefully document what they are doing in the event something should be called into question. It seems as if you never know what you might need to be able to prove."

In Gaines's district, administrators are provided with legal updates on a regular basis. They are informed about what laws have changed and about the practices and procedures that might need to be looked at more carefully. "We take that information and disseminate it among the faculty and staff who need to know," she said.

Principal Paul Young has served recently as a mentor to future principals. "I see the legal atmosphere impacting my mentees," Young, principal at West Elementary School in Lancaster, Ohio, told Education World. "Sometimes they are afraid to take a stand for fear they will anger someone. They are afraid they'll be sued. Two of them have already been involved in lawsuits -- and they are just 30 years old."

In his years at the helm, Young has seen the threat of lawsuits make relationships less personal. It has also taken some of the fun out of the school day. "Because my staff and I always second-guessing and worrying about student supervision, the legal atmosphere has impacted the decisions we make about field trips," he said. "We no longer have our sixth grade outdoor education classes stay overnight at an off-school camp site. We can't risk the potential problems."

In addition, some principals won't have traditional holiday parties because of fear of objections from and legal action by community groups, said Young.

Brian Hazeltine is principal of a private, Christian school. "Although I've not experienced any direct legal challenges, we are more aware of the possibility, especially from a policy and safety standpoint," said Hazeltine. "When seven students from a nearby private school were killed by an avalanche a few years ago, we were all impacted.

"When I was growing up, no one wore bicycle helmets, but what was considered responsible supervision 20 years ago may well be considered reckless today.

"It hasn't changed the atmosphere in our school, but it has made us more careful, and that's not a bad thing."

Lesson Learned #3
Location: Southwestern United States

One of our student's parents is always demanding special treatment for his child. He makes excuses for poor choices the child makes and he blames the school for everything possible. He yells, treats people disrespectfully, and generally makes it difficult to greet him with a smile and a sincere "how may we help you" attitude. He writes letters filled with legal jargon, speaks of yet-to-be named attorneys, and "fires" the people he disagrees with at school.

Lesson Learned: Rather than jump up in alarm because of the threat of a lawsuit, we remain calm, treat the child like we treat all children, hold the child accountable for his behavior, and continue to try to partner with the parent by helping him access additional support in the community. Does the parent like us? Probably not. Are we investing a lot of time and energy in trying to work with him? Definitely. Will we win? This is not a matter of win or lose. We just stay calm, consistent, and clear.

EFFECTS ON TEACHERS

Many principals say that, over the last 20 years, the overall atmosphere in schools has changed because of the way schools handle discipline issues. The threat of lawsuits from parents regarding students, especially students in special education, has changed the way teachers and schools work, said principal Lee Yeager. "At one time, if a student was disruptive or a discipline problem, you could remove the student fairly easily. Today, the process is more involved and the threat of -- or fear of -- a lawsuit makes principals more tolerant.

"I have even postponed making decisions or taken more extraordinary steps in dealing with special education students and discipline matters. I've done that simply to avoid a lawsuit, even one that I know the district could win."

"I am not sure this is always best for the patrons of our schools."

"Over the years I have seen many changes made in response to court decisions," said another principal, who spoke anonymously. "For example, disciplining special-needs students has become one of the biggest legal issues due to the reluctance of districts to use the legal system to enforce reasonable expectations. We have lost a lot of ground in our ability to control the school environment based on the rights of a minority of students."

Legal challenges by parents have changed the way teachers act with students in many other ways, said Jim Jordan. "Teachers are much more reluctant to meet with students one-on-one, especially when it is a student of the opposite sex. Teachers are more reluctant to volunteer for overnight field trips, extra supervision outside the school, or other situations that might place them in a compromising situation if a student were to accuse them of misconduct."

Principal Marguerite McNeely echoed those sentiments. "Teachers and other staff members often restrain from hugs, compassion the students are in so much need of, due to the fact someone might charge them with harassment," said McNeely, who is principal at Hayden R. Lawrence Middle School in Deville, Louisiana.

"I am never alone with a student," added Michael Miller, principal at Saturn Elementary School in Cocoa, Florida. "If I have a student or a group of students in my office for any reason, I always have the door open, at least cracked open."

"I try to be principal with heart balanced with good judgment," added Mary Smith. "I am not going to refuse a child who needs a ride home because of liability but I have advised my male teachers not to be alone with certain students. I had a male teacher tell me one time that he had a general policy not to ever touch a child anywhere below the shoulders. In a world where so many children are lonely for physical touch, it is a sad state of affairs."

In addition, according to the Harris Interactive/Common Good survey, most teachers say the threat of legal challenges has created a phenomenon called "defensive teaching." That means they have made teaching decisions that were motivated by a desire to avoid legal challenges.

DOCUMENT, DOCUMENT, DOCUMENT

Documentation, according to many principals we contacted, can be the key to avoiding liability in a legal action.

Michael Miller has heard several times from legal aid attorneys, especially regarding students with exceptional needs. "I have found that if you have your documentation in order, and if you have made decisions that a prudent person would make, then you stand alright when faced with these situations," he said.

Not that documenting is fun. "We spend an inordinate amount of time documenting everything we do," he added. "This fact came home to me a few years ago when we were in a parent conference and the team of teachers had documented every time they sent home a piece of paper to that parent. I couldn't help but add up how much time was taken away from instruction to do that documentation. It is a shame but, unfortunately, it is a sign of the times we live in."

Mary Smith has always remembered something she learned in one of her college legal classes: when all things are equal, the side with the most documentation wins. "I have become a master of documentation, and I teach that concept to my teachers," said Smith.

"Not following established procedure or policy is what trips most people up," she added. "My advice is to know procedure, follow it, and document it. I use that approach with students, staff, parents, and the public."

Pat Green sees another potential legal issue for teachers on the horizon. With high-stakes tests taking such prominence in our field, she considers the possibility that parents may soon be accusing teachers of not teaching their children the content necessary to pass those tests. "The legal tip here," Green said, "is that teachers must be certain their lesson plans are clear and that they regularly include the standards-based learning objectives for those lessons."

When teachers routinely note the standards they address in each lesson plan, they have the documentation necessary to share when parents say they didn't do their job, said Green.

Lesson Learned #3
Location: Northeastern United States

One of my teachers was accused of being sexually involved with a minor student. That former student, now an adult, threatened a lawsuit. The teacher denied the accusations. She was placed on administrative leave as six months of interviews, reviews, statements, and depositions ensued under a veil of confidentiality. In the end, the teacher lost her license and is no longer teaching in a public school.

The Lesson: This incident created a very tense situation at school. The teacher's peers wanted to know what was going on, but I could not share details of the process. That veil of secrecy was counter to our school-wide tradition of open and honest communication. I had to carefully explain that the situation was confidential, under detailed investigation, and that, in time, the correct and fair decision would be made. The staff understood.

TEACHER CHALLENGES

The area of teacher performance is another area where administrators today are often a bit more cautious than they were several years ago, added Green. "More items are noted in writing today; more procedures and policies are detailed; timelines are met. Particularly in the personnel arena, folks are careful to ensure that employees' rights are represented and issues are clearly addressed."

That's not necessarily a bad thing, she said. "Teachers are people too -- with rights, responsibilities, and perspectives of their own. Any teacher can challenge you on a legal issue. That's their right.

"While legal challenges can create time consuming 'projects', they needn't change your relations with your staff. If your relationships with staff are open, honest, and consistent, the vast majority of issues can be resolved through conversation, instruction, and compromise."

When it comes to potential legal issues surrounding teacher performance, principal Marguerite McNeely's approach is to put all expectations -- and consequences for not fulfilling them -- in writing. "I avoid no situation because of threats or challenges," McNeely told Education World. "I make my decisions based upon our board policy and abide to the letter of it. That helps ensure that I will not be challenged."

"The threat of lawsuits from teachers does not deter me," agreed Lee Yeager. "I am very careful with what I say and do with my staff. I document everything. I follow the state code of ethics for educators."

One principal, who chooses to remain anonymous, told Education World that he seldom has trouble getting buy-in from teachers when performance issues are involved. "I have seen many issues with teachers where the teachers are OK with the decisions, but the union or teachers' association was not," he said. "When an administrator attempts to correct or assist in the improvement of a staff member, the union is too eager to step in and protect the mediocrity -- or worse."

"In my opinion, challenges from teachers and staff are more of a threat than those from the public," said another principal on condition of anonymity. "Teachers in our district file grievances much too often and the district administration is afraid of the media and of arbitration, so they tend to back down.

"We have given away the ship and the ability to manage and lead. We can't make a move without checking things out first with the union. This is the most serious problem for principals who are on the front line -- more so than lawsuits. Teacher unions in the last decade have hindered education reform and progress.

"This atmosphere has caused me to keep a weak teacher rather than invest several years documenting ineffective performance and the many legal challenges."

Teachers must always retain their rights to due process, emphasized another principal who talked to Education World. That requirement was driven home to him years ago in a very personal way when he learned -- in the newspaper, before the superintendent had even talked to him -- that he was being transferred to an assistant principalship. "The super reversed his position after being reminded of the law regarding due process," the principal said.

"Principals and teachers deserve the right to appeal dismissals on proper grounds," he said, "however, we need legislation that protects schools from having to use public funds to fight frivolous law suits. For example, I went through four years of hearings and appeals for a special education teacher I recommended for dismissal after I learned that she had, among other things, locked a student in a closet for an hour. That person -- and others who file such frivolous lawsuits -- should have to pay court costs, attorney's fees, and substitute costs when they file a frivolous law suit and lose."

LEGAL ISSUES AFFECT SCHOOL ENVIRONMENT

Principal Jim Jordan worries that many parents are looking for something to sue about. "They are looking for just one small slip-up," he said. "If they think they can get enough to get an out-of-court settlement, they file the suit. There are plenty of attorneys willing to work on a percentage basis; therefore, they have nothing to lose."

When legal issues arise in the school setting, Jordan believes that lawyers seldom improve the situation. "Lawsuits generally take educators away from important services to children."

"I've never been sued," said principal Paul Young. "I retire in December, and I hope I can make it with that record intact. But I've been threatened. Even more stressful than that, however, are those parents who become incensed over a disciplinary situation with their child and threaten to call the local TV station. Before you know it '6 on Your Side' is doing an expose! And, once the cameras start rolling, the principal's reputation is harmed -- whether there was any justification for the story or not.

"Angry parents can and will say anything on camera, but the principal must guard confidentiality and remain professional. Situations such as that are more challenging and stressful than being in a courtroom."

Fortunately, most school-based issues can be settled without getting lawyers or TV news crews involved. That, said principal Margaret Morales, is because most staff members in public school settings are competent professionals who wish to maintain a safe environment for all children and discipline in a nurturing way. "Most educators are resilient, and understanding, when parents have a complaint," she said. "We work with our entire school community to resolve issues even before they start.

"As an administrator, I cannot be afraid of the future. I have to do what I feel is in my school community's best interests."

Principal Larry Davis thinks teachers are generally safe from the threat of legal action so long as they act with good judgment and do not provoke or lose control. "The teachers who need to worry are the ones who are negligent in their duties, for example the teacher who is not at his assigned safety post before school when a child gets hurt," he said.

Davis, principal at Doctors Inlet Elementary School in Middleburg, Florida, pointed out that some states have liability funds set up to assist educators when legal situations such as those arise. "It's good to know that teachers are protected by our legal system," he added.

"Legal issues can happen regardless of where you work," Pat Green told Education World. "If you choose to believe that they impact your ability to do your job, they will. Instead, I choose not to worry about the legal challenges. I concern myself with doing things the right way, treating people with respect, being consistent, and documenting my efforts."

 

Contributors to This "Principal Files" Article

Comments from the following principals appeared in this article. Other principals contributed on the condition of anonymity. Jim DeGenova, assistant principal, Slippery Rock Area High School, Slippery Rock, Pennsylvania; also part-time elementary principal Har-Mer Elementary, Slippery Rock Area School District, Harrisville, Pennsylvania, Grades K-5 (formerly at Reed Middle School in Hubbard, Ohio)
 


Article by Gary Hopkins
Education World®
Copyright © 2006 Education World

09/28/2004

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