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How Courts And Congress Wrecked School Discipline Stuart Taylor, Jr
National Journal, November 15, 2003 Taylor writes:
First came Tinker v. Des Moines School District, in 1969, in which the Supreme
Court upheld public school students' First Amendment rights to wear black armbands
at school to protest the Vietnam War. The justices understandably saw the suspension
of these students as an overreaction. But the justices displayed their grandiosity
when they suggested that telling students to do their protesting elsewhere would
make the schools "enclaves of totalitarianism."
Then came Goss v. Lopez, in 1975, which ruled in favor of (among others) students
suspended for a few days for brawling in a school lunchroom and for attacking
a police officer in a school auditorium, in Columbus, Ohio. All public school
students have constitutional rights not to be suspended even for a single day
without notice and a due process hearing, the justices held.
However reasonable Tinker might seem on its facts, and however informal might
be the due process hearings demanded by Goss, the consequences have been far more
profound than allowing some sartorial protests and requiring some hearings. They
have inspired hundreds of lawsuits attacking schools' authority over hair length,
grades, dances, student-body elections, school newspapers, alcohol, drugs, violence,
and weapons. And even though subsequent Supreme Court decisions sought to set
limits to students' litigiousness -- by upholding corporal punishment, for example--
the genie was out of the bottle.
Taylor relies extensively on arguments made by Richard Arum, CG Education Advisory
Boad Member and author of Judging School Discipline: The Crisis of Moral Authority. He explains how "legal uncertainty" and "complex due process" requirements
are a consequence of these judicial decisions. Students feel empowered against
school authorities, and teachers and principals worry about legal challenges to
needed discipline. They also spend a lot of time documenting their adherence to
proper procedures, even when infractions are minor.
Zero tolerance rules were supposed to solve the discipline crisis, but have only
"made matters worse by further undermining school officials' discretion to use
their common sense."
And Congress, too, shares the blame: IDEA (Individuals with Disabilities Education
Act) requirements, in particular, have made it "impossible to expel, and extremely
difficult to discipline, any student diagnosed as having 'serious emotional disturbance'
-- a concept broad enough to include just about any chronically disruptive child."
Concluding, Taylor says:
But it will not be easy to undo the damage. In a dissenting opinion, Justice
Hugo Black warned that Tinker would subject "all the public schools in the country
to the whims and caprices of their loudest-mouthed, but maybe not their brightest,
students." At the time, it appeared to many that the great civil libertarian had
become an old fuddy-duddy. Now he seems more like a prophet.
Stuart Taylor writes a regular column for The National Journal, available to subscribers through http://nationaljournal.com/. | |
