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A fear of lawsuits has gripped the nation’s schools, creating a power struggle between the courts and educators, who say they have been forced into a defensive teaching mode. By that, they mean that their decisions are motivated by a desire to avoid legal challenges. A new Harris Interactive poll of 800 public school teachers and principals nationwide found that more than three-quarters of those surveyed — 82 percent of teachers and 77 percent of principals — agree that a fear of lawsuits has created this defensive teaching phenomenon. Nearly two-thirds — 62 percent — of principals said that they have been threatened with a legal challenge by parents, according to the poll released on March 30. And nearly 8 in 10 teachers — 78 percent — say students are quick to remind them that they have rights or that their parents can sue. “This overhanging threat of law in schools is like the anaconda in a chandelier — it’s sort of looking down on you, posed to strike,” said Nancy Udell, general counsel and policy director for Common Good, a bipartisan coalition seeking to overhaul America’s lawsuit culture. According to Udell, 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.” Udell said that while 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. She said that since 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, who recently defended a New Jersey school district and a coach accused of verbally abusing a student, said the fear of lawsuits is more pronounced than ever in schools. The case involved a high school student who sued her basketball coach, Daniel Hussong, for telling her to lose 10 pounds, which, she claimed, eventually caused her an eating disorder. On March 25, a Mercer County Superior Court jury awarded the girl, Jennifer Besler, $3 million, which was later reduced to $1.5 million. On April 9, a judge threw out the entire award, saying the girl had not proven any permanent damages from the coach’s yelling. Besler v. Bd. of Educ. of West Windsor-Plainsboro Regional School Dist., No. MER-L-000236-98. Despite the school’s eventual victory, Moore said the trial itself caused enough damage. “The effect that being a defendant in a lawsuit [has] for a teacher or an educator can’t be underestimated. It’s very intimidating,” said Moore, a partner at Gebhardt & Kiefer in Clinton, N.J. “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.” Attorney Linda Wong, who represented Besler in the suit, said her case highlights the need to keep educators — including teachers, administrators and coaches — in check. Wong, of Wong Fleming in Princeton, N.J., said the notion that “teachers should be able to do whatever they want” is unfair to kids and opens doors to potential abuse. “Coaches and teachers have an impact on students like in this case — there were serious psychological and physical traumas that this particular plaintiff developed,” said Wong. “By vacating the award — that sends a message that this guy got away with it.” (Still standing in the case is part of the verdict requiring the school board to pay $100,000 to the girl’s father for barring him from speaking at a board hearing.) Moore, who said Hussong did nothing wrong and had a good rapport with his players, believes Besler sued her coach because she was angry over losing her starting position on the basketball team. Attorney Kevin Little, who represents a California student suing over a bad grade, said that “unfortunately, the law does not go far enough” in protecting students from unfair teaching practices. “I’ve seen all too many incidents where teachers have essentially engaged in arbitrary or capricious grading as a way of tracking students or labeling students,” said Little, of the Law Offices of Kevin Little in Fresno, Calif. “Hopefully, this [case] will have a chilling effect on a lot of the outlandish practices that we see.” 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 San Joaquin 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, a professor at Lehigh University in Bethlehem, Pa., who has tracked school lawsuits from the 1940s, said the belief that schools are under attack from the courts is false. “There’s a myth that education litigation has exploded in terms of frequency and volume, and that the pendulum in terms of who’s winning is in favor of the people suing the school districts,” he said. Zirkel, who conducted a random sample of school lawsuits filed from the 1940s through 2000, said the number of cases peaked in the 1970s, but dropped at a consistent rate since then (though he did not have total figures available). He also found in reviewing cases over the same time period that the courts consistently sided with schools. “If you look at the ultimate outcomes of these frivolous suits, school districts consistently win them,” Zirkel said. Two U.S. Supreme Court decisions highlight this pro-school stance, he said. In the 1985 N.J. v. T.L.O. case, the high court upheld a principal’s right to search a girl’s purse for drugs without a warrant; the court found that schools need only a “reasonable suspicion” to do so. And the 1988 case Hazelwood School District v. Huhlmeier upheld a principal’s right to censor the school newspaper. Udell of Common Good agrees with Zirkel that the courts favor schools. But even if schools win most of the time, she said, 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.”

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