Title: Paralyzing Fear? Avoiding Distorted Assessments of the Effect of Law on Education
Abstract: I believe people are well intentioned. But I have great respect for the corrosive influence of bias, systematic distortion of thought, the power of rationalization, [and] the guises of self interest . . . . MICHAEL CRICHTON, STATE OF FEAR 571 (2004) Within the past three years, media reports on how fear of is adversely affecting the operations of American public schools have proliferated. For example, after a NEWSWEEK cover story about fear of lawsuits among teachers, coaches, ministers, and physicians,1 EDUCATION WEEK, the national newspaper for K-12 school officials, ran three successive articles chronicling how public education was being undermined by educators' trepidation about and the burdens of legal compliance.2 The cited source for these media accounts was an organization with the euphonious name Good. This self-styled bipartisan organization, headed by attorney and author Phillip K. Howard, has prominently propagated the view that fear of is undermining the operation of American public schools.3 The homepage of Common Good's elaborate website announces its seemingly unassailable mission of restoring common sense to American with a particular focus on two sectors, schools and health care.4 The website's Schools pages contain regularly updated media items and research studies, all ostensibly documenting the of in education and the organization's campaign for reform.5 This article examines this contention, placing it in the broader context of the ongoing polemic surrounding the effects and the incidence of in general and in the education sector in particular. More specifically, the successive sections of the article review 1) the background of the related legal movement; 2) the nature of the organization and its founder; 3) the nature, quality, and effects of proffered research; and 4) the nature, extent, and direction of more balanced relevant research. This examination reveals that Common Good provides a partial and partisan picture of the effect of law on education, a view which in turn promotes one-sided and simplistic solutions for a complex set of educational problems. To the extent that Common Good's work has identified anxiety among educators about legal obligations and legal consequences, the solutions for such difficulties more appropriately include increasing educators' legal knowledge, adopting educator-lawyer collaboration in the creation of preventive legal strategies, and formulating specific and feasible approaches for reducing over-legalization in carefully selected areas. I. BACKGROUND Although Common Good's advocacy initiatives date back only to its founding in 2002, the organization emerged out of a longer history of selfproclaimed litigation reform or tort reform campaigns waged within and beyond the school sector.6 For example, in 1988, then U.S. Secretary of Education William Bennett publicly decried the excessive legalization of education,7 a theme then echoed by General Counsel to the U.S. Department of Education Wendell Wilkie, who repeated the refrain about the explosion of education and added: Many of the decisions [the judges] issued limited educators' ability to make judgment calls about the day-to-day operation of the schools.8 During the same year, the American Tort Reform Association (ATRA) sponsored survey studies by the National School Boards Association Council of School Attorneys and the National Association of Secondary School Principals (NASSP) that purportedly supported ATRA's agenda for legislative reforms to protect school districts from liability.9 These surveys appeared as the insurance industry was attempting to justify skyrocketing premiums by asserting the questionable claim of a crisis in school district liability.10 A decade later, ATRA stimulated another push poll addressed to the members of the NASSP and the National Association of Elementary School Principals. …
Publication Year: 2006
Publication Date: 2006-10-01
Language: en
Type: article
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Cited By Count: 20
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