The last words I heard, before the sharp click on the other end of the phone, were “I’m going to sue you.”
Although I’ve heard those words many times during my career as a school administrator, they still evoke feelings of trepidation and concern. Trepidation for yet another lawsuit and concern for the many wasted hours and dollars that will be spent on a frivolous lawsuit. As state and federal legislation continues to place greater academic expectations and unfunded mandates on public schools, we cannot afford to waste a single minute or another dollar to fight unwarranted litigation.
I’ve been in public education for more than 30 years and have watched our society became more litigious every year. I’ve heard parents shout “I’m calling my lawyer” when their children blatantly violated school policy and when new redistricting plans were introduced to balance student enrollments. And, of course, I’ve heard district employees utter the infamous threat when their pay increments were withheld despite documented poor performance.
In an age of immediate gratification, “I’m calling my lawyer” has become a mantra designed to calm and validate the person making the threat while intimidating the person at the receiving end of the comment. I’ve even been threatened with a lawsuit for closing (and for not closing) schools on a snow day. Fortunately most of these threats die a quick death upon the advice of an attorney who rationally advises the case has no merit. But what about the other cases — and the other lawyers who feel there’s nothing to lose and perhaps a substantial monetary win to gain?
By the very nature of our business, public education is, without a doubt, vulnerable to legal attacks: Title VII, Title IX, claims under the Conscientious Employee Protection Act, allegations of employee/student misconduct, bullying, discrimination, etc. The fear of being sued has forced public school teachers and administrators across the country to re-evaluate what they do and modify traditional curricular activities and co-curricular programs. It’s simply easier and certainly less expensive to modify or eliminate programs than to have to deal with the worry of lengthy litigation.
When our district’s legal expenses topped $500,000 during the 2003-2004 school year, Freehold Regional High School District administrators and board of education members agreed something had to be done. The number of lawsuits, the amount of administrative/staff time preparing for and appearing in the courtroom and subsequent expenses were unacceptable. These lawsuits were taking public money and valuable time away from our students. Thus began the development of a pro-active action plan that resulted in a significant reduction of new litigation and lowered our legal expenses by almost 40 percent after three years.
The first thing and probably the smartest thing we did was hire a school board attorney on a retainer arrangement to attend all board meetings and be on-call for questions and emergencies. Because our attorney is a partner in a large firm, we are able to receive legal advice and assistance even when our particular attorney is not available. Additionally, an attorney on retainer can aggressively respond to a potential claim at its initial stage and help to resolve the issue before it escalates into a lawsuit.
Previously the school district employed several law firms on an as-needed basis. One firm handled general legal issues, another firm dealt with personnel matters and negotiations, and a third was brought in for special cases. Having different attorneys and separate law firms assume responsibility for different types of issues prevented a thorough familiarity with the school district and often resulted in an inordinate amount of time reviewing district policies and procedures. There was a definite lack of continuity. Furthermore, by not having an attorney on retainer, we tended to wait until situations exploded and we were in the midst of a legal battle.
The attorney met with district administrators and board members to assiduously review the district’s settled and pending lawsuits and their impact on the district budget. As a group, we reviewed the key issues surrounding each claim and preventive steps that could have minimized or eliminated the litigation.
An immediate offshoot of these meetings was a review and revision of the district’s existing school policies and procedures. By examining each district policy we searched for loopholes that could weaken our legal position during litigation. We established a formal protocol of specific procedures to follow when investigating or dealing with existing or potential problems. This pro-active measure is instrumental in helping school administrators to deal with potential problems before they escalate into serious situations and litigation.
To minimize frivolous litigation against school districts, we have to understand what motivates people to sue in the first place. The most common motivators include one or more of these factors: failure to communicate; lack of understanding or knowledge; passion and emotions; stubbornness and pride; and greed.
The importance of a solid communications plan with networks connecting staff, parents, students and the community at large cannot be understated. Press releases explaining revised district policies were published in local newspapers and the school district newsletter. They also were posted on the school district website and included in the faculty manual and the student-parent handbook. We also introduced the Superintendent’s Message, a monthly video posted on the website to discuss pertinent topics and policy updates. We knew that the more access the public had to our policies, the better our chances for compliance.
The student-parent handbook was expanded to include both district policy and disciplinary consequences for violations. We inserted a form at the beginning of each handbook requiring both the student and parent to sign and return the form indicating they received and reviewed the handbook. Having student and parent signatures verifying acknowledgement of the district’s discipline code has played a pivotal role in reducing parent accusations of unknown policies or prejudicial treatment of their children. We experienced an immediate drop in disciplinary-related lawsuits once lawyers and/or judges learned the student and parent had signed a student-parent handbook acknowledgement form.
Student issues often escalate into expensive lawsuits because students and parents perceive teachers and administrators as being unreachable or insensitive. As emotions rise, so do the number of lawsuits. Professional development should include sensitivity training and procedures to deal with student issues in a timely and effective manner. Communication and empathy from teachers and administrators plays a significant role in minimizing potential lawsuits. Experience has shown that when a principal responds immediately to an unfortunate student injury by calling the parent, visiting the hospital and conducting follow-up visits to the home, parents are less likely to find fault with the school district and pursue legal action.
Developing a more pro-active role in the academic and disciplinary support process, I initiated a superintendent’s disciplinary hearing for students who had serious behavior and/or attendance problems. By holding these hearings (comprised of the superintendent, student, parents, principal and appropriate teacher), we are able to address three things: (1) the unacceptability of the problem behavior; (2) the cause of the behavior; and (3) appropriate measures to remedy the problem. Each hearing concludes with the student signing a contract specifying expected behavior goals and specific graduated consequences for noncompliance. Rather than simply suspend a student for disciplinary violations, we have found that the coordinated effort and interest of administrators, staff and parents to work with the student to improve school performance is a positive motivator in reducing negative behavior.
These hearings also have helped reduce the number of student disciplinary problems. They enable school administrators to deal with minor problems before they escalate and become litigious.
Another cost-effective measure undertaken by the district was to revise the student expulsion hearing process. Previously, the entire board sat on student expulsion hearings at the conclusion of the public board meeting (often after midnight). Tension, coupled with fatigue, resulted in heated discussions and subsequent lawsuits.
Today a board expulsion committee (composed of three school board members, the superintendent, an assistant superintendent and the principal) meets with students and parents after school. Improved communication between school officials and parents and the dissemination of district policies have significantly reduced legal costs for both the district and parents by eliminating the need for an attorney to be present at the hearings.
Legal challenges by parents and students have definitely affected the way teachers interact with students. Rather than face the threat of time-consuming, frivolous litigation, teachers often cave to parental demands. Too often teachers find the time and expense needed to defend grading an essay paper with a D compared to a C-minus is simply not worth it.
Additionally, many teachers avoid dealing with students in a one-on-one situation for fear it makes them vulnerable to accusations of inappropriate conduct. While colleges and universities prepare young teachers to teach their academic subject, these training programs fail to prepare them for essential non-academic issues, such as appropriate interactions with students and parents. Leaving nothing to chance, I personally conduct an annual workshop to ensure that our young teachers (some only four years older than many of our students) are familiar with school district policies and expectations and understand the fine line between acceptable and unacceptable behavior and communication between teachers and students. As an administrator, I have learned to take nothing for granted.
While it is important to establish procedures to investigate allegations, it is equally imperative that staff members be familiar with the proper procedures for investigating a potential problem or dealing with an existing matter. A small annual investment of time to review school district protocol with staff can result in large savings against charges of procedural inconsistencies.
Evaluating teacher performance is another area where administrators have become increasingly more cautious over the years. Internal challenges from staff often become more disruptive to the school environment and pose a greater threat of time and money than those from students and parents. Staff evaluations and corrective action plans often raise challenges from teachers. Once we were sued for changing an administrator’s title, even though the salary and responsibilities remained the same.
Other legal challenges by staff included an administrator who claimed he should not have to conduct certain building-level administrative duties such as cafeteria duty and a staff member who felt he should not have to return parent phone calls within 24 hours.
School administrators across the country find themselves engaged similarly in costly lawsuits over staffing issues that could have been avoided by the implementation of pro-active district strategies.
Our school district’s creation of a professional relations committee composed of central-office administrators (including the superintendent) and representatives of the teachers’ association (including the association president) has proven to be highly effective in opening professional dialogue. The meetings provide a forum for staff and administration to discuss issues of concern on such matters as the need for procedural consistency among our six high schools, discipline procedures, the increasing use of technology and old policies that may need revamping. The meetings enable staff to review district procedures — for example, new grading programs, computer use policies and student testing procedures — and offer possible recommendations to strengthen and improve the policies or at least understand why the procedure exists.
A major outcome of these meetings has been an increase in staff requests for in-service training opportunities. This pro-active approach to open and honest dialogue with staff representatives has played a significant role in reducing contract violations and formal grievances that result in expensive legal fees.
Challenges from teachers can be greatly minimized by following four basic tenets: Maintain open communications; treat all staff fairly and respectfully; be consistent in policy and procedure; and maintain proper and thorough documentation.
The American legal system makes it easy to file a lawsuit regardless of the merit of the case. What we need is legislation that protects school districts from having to use public funds to fight frivolous lawsuits. The number of frivolous lawsuits would drop dramatically if the person filing the lawsuit was made responsible for the court costs, the district’s attorney fees and substitute teacher costs if the plaintiff was unsuccessful.
Unfortunately, public schools always will be vulnerable to legal challenges by students, parents and staff. We can’t eliminate all lawsuits, but we can and must make policy changes to minimize the filing of frivolous suits, in turn allowing educators to spend more time in the classroom and less time in the courtroom.
James Wasser is superintendent of the Freehold Regional High School District, 11 Pine St., Englishtown, NJ 07726. E-mail: email@example.com
10 Steps for Minimizing Litigation
1. Hire an attorney on retainer to be present at all board of education meetings and to be available for questions as they arise.
2. Encourage a united front among school board members and the superintendent.
3. Ensure board policies and procedures are in place and up-to-date.
4. Incorporate preventive measures into daily practices.
5. Familiarize staff, students, parents and community members with school district policies and practices.
6. Be clear about expectations of students and staff.
7. Be consistent in adhering to policy and procedures.
8. Treat people fairly and consistently.
9. Always maintain thorough documentation.
10. Strengthen communications among board, administration, staff, students and the community.
— James Wasser