COMMENTARY

Principals: An Antidote to Educational Malpractice

By David Schimmel, Matthew Militello, and Suzanne Eckes

“You’ll hear from my lawyer,” or “I’m going to sue you!”

Statements like these are made regularly in schools around the country. Though they often are hollow threats, they nevertheless can have a paralyzing effect on educators. This is because a vast majority of teachers (85 percent, according to our research) have not taken any course on school law. As a result, most are uninformed or misinformed about their rights and responsibilities and those of their students. Allowing such a lack of knowledge to exist and failing to do anything about it is a form of educational malpractice, in our view. We believe most schools are guilty of such malpractice, even though a solution lies within schools themselves—the school principal.

Although teaching law is not in their job description, principals already are the chief law teachers in their schools. This is because most principals frequently give legal advice—in staff meetings, in informal conversations, and in the way they develop, interpret, and enforce school rules. While this advice is often appropriate, there are many times when it is confusing, misleading, incomplete, or even incorrect. Such advice (or lack of advice) often leads to two types of mistakes by teachers: 1) failing to take disciplinary action when they should, and 2) unintentionally violating students’ rights when they should not.

Legal Illiteracy’s Results. First, the failure to act is often the result of oversimplified administrative warnings. In a national survey of secondary school principals that two of us conducted with our colleague H. Jake Eberwein and the National Association of Secondary School Principals in 2007, we found that the frequent legal advice principals give to teachers is “Don’t touch students.” Because of this and many other “thou shalt nots,” teachers view law as a source of anxiety and fear. Thus, a 3rd grade teacher reported that he does not break up fights among his students because he’s afraid that, if he does, and a student is injured, he could be sued and held liable for the injury.

"Although teaching law is not in their job description, principals already are the chief law teachers in their schools."

This widespread belief among teachers that any touching of students involves inherent legal dangers persists despite the fact that it is always legal and appropriate for teachers to use reasonable force to protect their students and themselves. Additionally, there are state and federal laws that protect teachers from being held liable in these situations.

Second, most teachers are not aware that they function as agents of the government and are therefore restrained by the Bill of Rights. As a result, teachers may unintentionally violate students’ constitutional rights when they order them to stand for the Pledge of Allegiance, search their backpacks for possible contraband without reasonable suspicion, or prohibit them from distributing “controversial” political or religious pamphlets to classmates.

Teachers’ lack of awareness of students’ rights can cause friction, frustration, and possible litigation. A high school principal illustrated this problem when she explained that one of her teachers had recently sent a student to her office to be suspended for refusing to take off an “offensive” T-shirt that said the president was an “international terrorist.” Since the principal knew the student had a First Amendment right to wear the shirt because it had caused no disruption, she refused to suspend him. As a result, the teacher felt embarrassed and unsupported by her principal. However, if the principal had “supported” her teacher and suspended the student, there might have been a conflict with the parents and a possible lawsuit—which the school likely would have lost.

In sum, legally illiterate teachers may fail to take appropriate action: ignoring misbehavior, permitting disruptions, or rescinding discipline because of meritless threats by parents or students. In addition, when teachers are unaware of how the Bill of Rights protects students, they may unintentionally violate students’ rights regarding free speech, due process, or search and seizure. The negative consequences are often compounded by the fact that teachers receive much of their legal advice from other teachers who are similarly uninformed or misinformed.

Benefits of Legal Literacy. If principals teach the basic principles of school law as a ...

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David Schimmel is a lawyer and professor emeritus of education at the University of Massachusetts Amherst, and an adjunct lecturer at the Harvard Graduate School of Education. Matthew Militello is an assistant professor of education at North Carolina State University, in Raleigh, N.C., and a former secondary school teacher and principal. Suzanne Eckes is a lawyer and an associate professor of education at Indiana University Bloomington, as well as a former secondary school teacher. They are the co-authors of Principals Teaching the Law: 10 Legal Lessons Your Teachers Must Know (Corwin, 2010).