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Is Law Undermining Public Education? Philip K. Howard
Common Good and AEI-Brookings Joint Center for Regulatory Policy, November 5, 2003 Learn more about the forum.
Read the briefing book "The Effects of Law on Public Education" compiled for
the forum.
TRANSCRIPT: There are only two things I would like to say about Common Good which
I think might be pertinent to those of you who haven't participated in these forums
before. One is that we're aggressively bipartisan. I think we're the only board
in America that has both Newt Gingrich and George McGovern as members. And secondly,
that we have quite a radical mission, which is to restore the foundation of reliable
law in America. Our basic point is that when law is not known or is not trusted,
people lose their freedom. They begin to go through the day looking over their
shoulder instead of doing what they think is right. And when law does not draw
the line on who can sue for what so there's uncertainty there, then law becomes
a weapon for self-interested people to bully everyone else around them.
Our point is that this has changed the fabric of American culture. It's reflected
all around us. I mean, just the warning labels are probably the funniest example.
There's a contest every year for the silliest warning labels. One winner a few
years ago was on a baby stroller: "Caution. Remove baby before folding stroller."
This is a statement by someone who really does not trust the American system
of law.
This is our fourth forum that we've done with the AEI-Brookings Joint Center.
The first three were on the effects of law on health care, and at the end of these
forums we have reached pretty much a consensus among leading thinkers in health
care, and we're not talking about just medical professionals and health plans,
but the leading patient safety experts in the country, and also some of the leading
consumer groups in the country, that we need an entirely new system of medical
justice, and that the goal of that system isn't to protect one group or another,
but to be reliable, reliable for patients who are injured by mistakes, and reliable
for doctors who are unfairly accused of error when there's an adverse income when
they did nothing wrong.
So we're now exploring the contours of a special health court, and one bill has
already been introduced in the Senate to fund pilot projects for special health
courts.
This forum today is the first forum on which we focused on the effects of law
on education. I think most of us don't normally think of education as a legal
issue. We assume that, well, the law is the law, and people instead think of education
in terms of goals. How do we improve the performance of schools? And we pass rules
and laws to mandate nationwide testing and to improve teacher credentialing and
the like, and we've been passing these laws and rules now for several decades,
trying to improve education, and keep wondering why it seems so hard to improve,
notwithstanding all of these efforts.
What we would like to do today is explore with these experts, not so much the
goals of education, but the techniques by which we manage schools. I guess the
basic principle--let me just say I'm normally reticent to express my point of
view.
But I think just to try to get this kicked off, I'll give it a try anyway, and
I'd like to state a couple of propositions that I believe to be correct. First
is, education is a human enterprise. What do all great teachers have in common?
In my experience, nothing. it's a unique package of love, humor, care. Of course
they all try to be good teachers in their own way, but they all are the product
of themselves and their own way of communicating with the students. We all remember
the teachers who were important in our lives, and I think there's no question
but that when you get teachers like that you understand why teaching is a great
profession, perhaps the greatest profession, because it teaches people not only
to learn to read and to write, it also teaches them values and how to be an adult,
and how to be yourself.
And so teaching, the human aspect of education is, I believe, by far the most
important aspect of education.
Law is not unimportant. We have seen in the last 40 or 50 years the importance
of law in changing goals and in setting goals where there had been abuses, for
example, with discrimination and segregation, when schools were not taking care
of disabled children. But when law goes from being a goal-setting mechanism to
a technique for daily management, what it achieves, I believe, is to suffocate
the human element needed to educate children, and it does this for a couple of
reasons.
Law, unlike typical management techniques in a business, is rigid. It is, after
all, the law. So if rules have the force of law, as they do in schools, they have
an impact that's different than simply, do the right thing, make sure you make
sense of the situation. The impact is that people will look, when they go into
work in the morning, first to the law. There's a great sociologist, Robert K.
Merton, who once said that if you focus upon A, you will always be neglecting
B.
Well, one aspect of using law as a management tool for schools is that instead
of thinking about how to interest the children, telling a joke, making an exception,
teachers--and you'll see this in the materials that are in the book that have
been compiled--teachers focus on their predicament in trying to comply with the
law. So it diverts teachers from doing what they do best, which is to be themselves
and to focus on the children.
When law isn't clear, which happens for a number of reasons, but obviously happens
when there are too many rules, so that people don't know what they are, it has
another effect, which is that people worry about doing anything.
I have a friend who started a charter school in the Bronx, and one of the people
he hired was a football player from Duke, a huge guy who's teaching the 7th grade.
Well, there's a fight that emerged among the 7th graders. They were pummeling
each other. He wouldn't break it up, because he was afraid that there might be
a rule against breaking up fights because he had heard something about touching
children. Well, that's the point Richard Arum makes in his book. That's absurd.
But when you're uncertain what the law is, and it's law out there lurking to get
you, people stop doing what they know is right. They become disconnected from
their common sense.
So the effect of organizing schools by rules and more rules is akin to creating
a kind of robot suit, in which every teacher who has an affinity of different
emotions available to them, and perceptions that they can use to run the classroom,
has to fit himself or herself into this robot suit, and all they're allowed to
do all day long are the moves of the robot, which are the moves of the rules,
and so they kind of lurch around trying to comply with the rules, and then we
wonder why it's not effective in teaching children.
There's another kind of law as well, which goes by the name now days of due process
or legal process, and we all know what that is. If there's a dispute, then let
there be a hearing. What's wrong with that? If you did the right thing, can't
you prove that when you did was right and fair? It sounds like a fantastic provision
to ensure fairness in schools.
But giving any angry person the unilateral power to drag someone into a legal
hearing is not cost free. It's not a neutral process. It requires scores, sometimes
hundreds of hours by that person, thousands, tens of thousands, sometimes hundreds
of thousands of dollars in legal fees, and it wrings people out emotionally. Again,
all you have to do is look at the materials, the public agenda focus groups. People
are terrified. They hate it, being grilled, how can you prove that who threw the
pencil first, or that grade was justified, or so-and-so shouldn't have made, as
a recent case alleged, the cheerleading squad? How do you prove who's an effective
teacher and who isn't?
Most of these things are not provable or not readily provable. They're matters
of judgment. They're matters of judgment. They can certainly be second guessed.
But in a legal hearing where it is just the one angry person against the establishment,
what it does is it gives enormous power to the person who threatens the use of
law. So the effect is--you've got a robot in the classroom--the effect is to allow
one angry person to effectively lasso the robot and drag them out of the classroom
to answer for what are typically, not always, but typically reasonable judgments.
We've tolerated this because we think of due process. Due process originally
came up when the state's taking away property. The government can't do that without
due process of law. As the victim against the state--and public schools are a
good thing and they're a state organization. But when you're running a school,
it's not the victim against the state. It's the victim against the state against
29 other children in the classroom. You let the one child misbehave, as Richard
Arum has demonstrated, the 29 other children won't learn or won't learn as well.
That's the reason due process is an inappropriate technique, in my view, for resolving
fairness in areas of discipline, teacher confidence, or the other areas that are
so important to maintain an educational institution.
Then there's an indirect ripple from due process, which is you're so desperate
not to be dragged into the hearings, that you begin passing more and more rules
to prove that you're right. That's where zero tolerance comes from. It's the only
reason we have these zero tolerance, you know, so the kid with the plastic squirt
gun gets suspended or whatever. The reason we have them is because they can prove
that the principal or the teacher was right. If we actually let people use their
judgment, you wouldn't need those rules, or indeed many of the rules that are
passed. So it becomes a kind of, due process is a kind of growth hormone for bureaucracy.
Every time something happens bad you pass a new rule so you can prove that you
were right.
Now, my conclusion, obviously, is that the use of law as an organizational mechanism
for schools is killing the ability to create a healthy and vital educational environment,
and the effects are all around us. As Bob said, you can't put your arm around
a crying child. Many schools, or some schools have banned recess. Playgrounds
are so boring that no child over the age of 4 would want to go in them, seesaws
have disappeared, leading in part to a crisis in childhood obesity because we
don't have a culture of physical fitness. JFK, when he created the President's
Council on Youth Fitness 40 years ago, what did they do? They funded jungle gyms
and athletic equipment in playgrounds, all of which have been ripped out because
of legal fear.
The alternatives is something that we need to discuss with all of you, and it's
certainly not letting teachers and principals do whatever they want because there's
so much distrust in this society that as a proposal would never go anywhere. But
there are other forms of accountability than legal proceedings and rules. There
are other forms of second guessing than legal proceedings. You could have oversight
by parent-teacher committees or the like, all of which need to be explored.
But the one point I'd like to leave you with as we start the program this morning
is that there is this tendency which we have to fight to think of law as the Ten
Commandments. Law is the law. And what I'm suggesting this morning is that maybe
that's the problem. It's the problem not only for teachers every day, worrying
about what the law is, it's also the problem for reformers. We think about how
to fix the schools, but we never question the underlying frame of reference by
which we try to fix the schools, what the mechanism is. Call it law and people
will freeze. But law is not a holy institution. It's a human institution. The
test of law, a great Justice of the Supreme Court, Benjamin Cardozo, once said,
is how it works, and that's what this distinguished gathering is going to start
exploring here today.
So thank you very much, and look forward to the rest of the proceedings. | |
