Five Common Legal Misconceptions in Education

From the Marshall Memo #454

“Principals and other educators often have perceptions about key issues in school law that are remarkably wrong,” says legal expert Perry Zirkel (Lehigh University) in this helpful article in Principal Leadership. “When that is the case, they help reinforce those prevailing perceptions by sharing them with teachers, parents, and other administrators and by contributing to misguided practices and policies.”

• Myth #1: There has been an explosion of education litigation. In fact, school litigation peaked in the late 1970s and early 1980s and has gradually declined since (with an upward tick of special-education cases in federal courts in the first decade of the 21^st century). In terms of decisions, says Zirkel, the trend has been in favor of school defendants.

• Myth #2: Educators should fear being held liable for negligence. Actually, in only 11 percent of cases did student plaintiffs win at least partial damages, and individual educators were not held liable in any of them (institutions were). Of course, school personnel need to be alert to issues of student safety, including in science labs, but fear of liability should not be the primary motivation.

• Myth #3: Student rights are ascendant. In fact, since the Tinker case of 1969 (students’ right to wear black armbands in school to protest the Vietnam war), there has been a shift toward more district-favorable decisions in First Amendment cases. Similarly, says Zirkel, “The belief, whether held by students or school personnel, that teachers cannot touch students, including but not limited to reasonably intervening to stop student bullying, is lore, now law.” 

• Myth #4: Bad teachers can’t be removed because of tenure. In fact, when school leaders evaluate and dismiss incompetent teachers, courts have upheld their actions in the majority of cases. The same has been true when school boards have taken action against superintendents. The problem, says Zirkel, is that school administrators are not exercising their legal authority. 

• Myth #5: Educators can’t take strong disciplinary action against misbehaving students, especially if they have special needs. In fact, courts have been “extremely deferential” to school districts on discipline of general-education students, says Zirkel, and with special-needs students, the federal law does not generally apply to suspensions of up to ten days. In cases where a student’s misconduct is linked to a disability, recent litigation has generally favored the school district. Professional recommendations should not be confused with legal requirements, says Zirkel.

“Lore v. Law: Prevailing Beliefs and Objective Knowledge” by Perry Zirkel in Principal Leadership, October 2012 (Vol. 13, #2, p. 50-54), http://www.nassp.org/pl