Public Agenda

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How Litigation, Due Process and Other Regulatory Requirements Are Affecting Public Education

Jean Johnson and Ann Duffett

A pilot study from Public Agenda for Common Good


For health care providers, litigation is a front-and-center issue. Hospitals, drug makers, and associations that represent doctors and other medical professionals have called loudly and repeatedly for relief. The American College of Obstetricians and Gynecologists, as just one example, has labeled 13 states as “Red Alert” zones. The organization says that the cost of malpractice insurance and the likelihood of being sued now “threatens the availability of physicians to deliver babies” in these states.

But is litigation—and the adaptations made by individuals and institutions to avoid it—as urgent a problem for professionals in other fields? In this paper, Public Agenda takes an exploratory look at how litigation, due process and other regulatory requirements are affecting public education and the professionals who work in it.



An Honorable History

In many ways, litigation in public education has an exceptionally honorable history. Lawsuits were instrumental in ending segregation and extending public education to children with disabilities. There are significant lawsuits now in the courts addressing a variety of issues ranging from equality of school funding to vouchers and school choice to whether schools should ask children to pledge allegiance to “one nation under God.”

But can there be too much of a good thing? Are there too many lawsuits over matters that could be resolved in a different way? How does litigation—and the regulations, procedures and policies connected to it—affect professionals working in schools today? In this paper, Public Agenda reports on the results of a small-scale pilot study looking at the views of teachers, principals and superintendents, plus a small number of central office administrators, on this topic. The pilot was conducted for Common Good, a bipartisan organization whose mission is to call attention to America’s lawsuit culture. Public Agenda is a nonprofit, nonpartisan research organization that examines public thinking about a wide range of social and political issues. Public Agenda itself takes no position on the role of litigation in education or other areas of American life. Common Good gave Public Agenda complete freedom to use our own judgment and expertise in conducting and reporting this research.

The purpose of this small-scale study is to raise questions, stimulate discussion and provide hypotheses for further research—not to suggest definitive conclusions. To conduct the study, Public Agenda reviewed its existing storehouse of research on public education, including hundreds of focus groups and dozens of national surveys of teachers, parents, students, principals and superintendents completed over the last decade. We rely particularly on a small number of questions about litigation and due process included in nationwide surveys of public school teachers, principals and superintendents conducted by Public Agenda. The primary source of material for this paper comes from three focus groups conducted by Public Agenda and devoted exclusively to this topic: one with superintendents from school districts across the state of Illinois, one with principals and central office administrators in suburban New York City, and another with classroom teachers, also from a school district in a suburb of New York.


Limitations of the Research

The concerns captured in the following pages are often compelling, but it is vital to underscore the limitations of this research. Public Agenda has not conducted a full-fledged study in this area. Instead, we are reporting on a small number of national survey findings combined with a small number of focus groups.

Some of the most intriguing and perhaps troubling observations in this paper come from the focus groups. Although focus groups are useful tools for observing how people talk about issues and for generating hypotheses for further research, they are not reliable predictors of how many people hold a particular viewpoint. What’s more, this particular project includes only three focus groups confined to two geographic locations. It is easily possible that focus groups conducted in other parts of the country or in different kinds of school districts could produce different results.

That said, the concerns and patterns of thinking described here emerged strongly and repeatedly, and they came from a number of different individuals. In many cases, they echo findings from large-scale national studies, and where possible, we cite survey findings to confirm—or at least buttress—the observations we report below.

These are among the most important:

Observation No. 1: For many teachers and principals, the possibility of being sued or being accused of physical or sexual abuse of a student is ever present in their minds. Many say they completely avoid touching students or being alone with them to avoid this hazard.

Observation No. 2: For many principals and superintendents, avoiding lawsuits and fulfilling regulatory and due process requirements is a time-consuming and often frustrating part of the job. Special education, discipline and sexual harassment, and staff issues seemed to be the most problematic areas.

Observation No. 3: According to many teachers and school leaders, litigation and due process requirements often give unreasonable people a way “to get their way” even when their demands are unwarranted. School leaders appeared divided over whether agreeing to an unjust settlement is preferable to going to battle in the courts.

Observation No. 4: Litigation and the threat of litigation often take a personal toll on professionals in education. An unwarranted charge and/or the prospect of dealing with litigation can create enormous anxiety and anguish, sometimes enough to derail a career.

Observation No. 5: Despite their concerns, many educators say protecting children from physical or sexual abuse is a higher priority than reducing the threat of litigation. Many appear to believe that lawsuits and procedures are the price we pay for protecting children.

Observation No. 6: For many educators, the ramifications of the “legalization” of education are distasteful and sometimes disturbing. Still, at the current time, most appear to want modifications, not sweeping change. In fact, many appear somewhat ambivalent about just how much change they would like to see. Special education is an exception. This is one area where superintendents and principals at least are crying out for relief.


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In this pilot study, many teachers and school administrators reported that the possibility of being sued or accused of abuse is ever present in their minds.

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In this pilot study, many teachers and school administrators reported that the possibility of being sued or accused of abuse is ever present in their minds.

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