L is for lawsuit

Angry that little Johnny flunked, increasing numbers of parents are suing teachers.

By Janelle Brown
Published July 12, 2002 7:10PM (EDT)

One of the students in Elizabeth Joice's senior English class at Sunrise Mountain High School in Peoria, Ariz., was flirting with failure. In fact, it was much more than a dalliance -- she was flunking. The student, whose name Joice wishes to keep private, had plagiarized a test, skipped classes, failed assignments and even missed a make-up session that might have allowed her to raise her grade. Joice had been sending notices to the girl's parents since April, warning them about the failing grade; and both the girl and her parents had met with assorted district administrators, counselors and Joice herself. But it was all to no avail: It was almost graduation, the girl had blown too many tests, and she wasn't going to walk.

Imagine Joice's surprise then, when on May 22, just one day before senior graduation, she received a letter from a lawyer representing the girl's family. The family felt that the teacher had graded unfairly, the letter said; they believed that their daughter hadn't been given enough of a chance, and unless Joice took "whatever action is necessary to correct this situation" they were going to file a lawsuit.

The girl graduated with her class the next day, igniting a local battle that has yet to be settled. Parents and students are furious that the girl (whose name has been withheld from the media) was given what they believe to be an unfair boost. Teachers are livid at the school district, which forced Joice to retest the student at the last minute. The Arizona state bar is investigating the ethics of the girl's lawyer. And the Peoria school district is defending its decision by claiming that the teacher hadn't applied appropriate grading procedures.

Welcome to high school in America, 2002, where grades are a niggling annoyance that can be swept aside by a well-placed threat, and where teachers and administrators only have authority as long as they don't displease parents. Bad grades, discipline problems, shocking attendance records: Offenses that in the past warranted school action as strong as suspension, dismissal from school or refusal to grant a diploma are easily blocked or reversed -- as long as Dad's got a good lawyer.

The struggle for classroom control comes in an increasingly intimidating school environment where teachers are commanded -- by parents, administrators and the government -- to usher students through a gantlet of tests to graduation without displeasing litigious families or failing to meet performance standards that bring schools added funding or, at the very least, ensure their survival for another year.

Says John Mitchell, deputy director of the American Federation of Teachers, "Teachers are under incredible pressure right now from two places: from policymakers to raise standards and teach to those higher standards. Then on the other side you have parents giving pressure to teachers not to hold kids up to the high standards. Teachers are between a rock and a hard place ... It's an area ripe for lawsuits."

Indeed, the number of threats and lawsuits against teachers and schools -- many of which fail to grab the attention of national media -- has risen dramatically over the last decade, forcing schools to spend limited funds on lawyers and insurance, and teachers to spend more time protecting themselves from potential litigation; and, in the process, instituting defense strategies that are changing education in the country's public schools -- and not for the better. As classroom creativity is curbed by the fear of lawsuits, kids lose the benefits of their teachers' inspiration and replace it with a different kind of lesson: that anything is possible if you have money or a capacity to complain.

Up until the moment when Elizabeth Joice received the letter from lawyer Stan Massad, her struggle with the failing senior was fairly typical. The warnings, the second chances -- it was standard fare until May 22, the day before graduation and the day after a final meeting with the student's parents.

The letter that Massad sent Joice represented the nadir in her long history of parent-teacher relations. The girl had been "scarred for life" by the flunking grade, the letter claimed. "Since hearing this devastating news, the student has been very sick, unable to sleep or eat and she has been forced to seek medical attention." The letter went on to threaten Joice with a lawsuit and its attendant personal discomforts: "Of course, all information regarding your background, your employment records, all of your class records, past and present, dealings with this and other students become relevant, should litigation be necessary," it said.

After she received the letter, Joice immediately sent it to the Sunshine Mountain High School principal and the school district. She also composed her own defiant response: "The student would be a very capable student if she would apply herself, study and get her assignments in on time," she wrote. "Instead of being scarred for life, perhaps she will learn these lessons now, rather than when she is in college or in the work force. I think your clients would be better off investing their money in summer school tuition for the student rather than wasting their money on attorney fees, litigating a case with little likelihood of success."

On the morning of May 23, however, Joice was informed by the school district that she needed to give the student a second chance. "I was told 'You better decide what you are going to do, because that girl is going to walk tonight,'" Joice recalls. Just hours before graduation, Joice was instructed to give the student a second shot at a multiple-choice test she had already flunked once. The girl squeaked by, and was allowed to graduate.

Jack Erb, superintendent of the Peoria School District, swears that the district's decision had nothing to do with the threat of a lawsuit, and claims that he didn't see the lawyer's letter until after they had decided to retest the student. "It isn't an issue; people threaten us all the time and most the time they don't follow through with it," he says. He posits that the decision to retest the student was based on a quirk in Joice's curriculum and grading system.

But after outraged parents and teachers from across the state sent furious letters to the local papers, complaining that the student shouldn't have been granted special privileges, the district finally offered a general apology for its "lack of clear and appropriately enforced internal guidelines regarding grading and curriculum standards." It said nothing about the legal threats, however. (The lawyer, in turn, is now being investigated by the state board of Arizona as to whether his veiled threats to Joice were ethical.)

Regardless of whether the district ultimately caved because it feared a lawsuit, the entire affair draws into relief the conflict currently taking place in classrooms across the country. Higher standards linked to higher stakes for schools have caused educators to be more rigorous. Concerned parents, facing tougher college entrance requirements for their kids, panic when their children falter, often blaming the teachers and schools for their children's failures. The result, of late, is lawsuits, or, most often, threats of lawsuits.

An astounding 25 percent of all secondary schools were involved with lawsuits of all sorts -- from accidental injuries to discipline squabbles -- between 1997 and 1999, according to a 1999 survey by the American Tort Reform Association -- a huge increase over the decade before. While some of these lawsuits were no doubt justifiable, there is no shortage of egregious litigation: Legal expert Walter Olson's site Overlawyered.com, which chronicles legal ugliness in schools in order to point out the frivolous nature of American litigiousness, lists dozens of overzealous-parent lawsuits similar to threats in Peoria.

There was the lawsuit, for example, filed by 15-year-old Elizabeth Smith in Bath Township, Ohio, who sued her school district and 11 teachers in 2000 for $6 million, claiming that her grades were unfair. The school had lowered her grades because of frequent absences and tardiness, which the Smith family blamed on "chronic tonsillitis" and the fact that she stayed home to put her siblings on the school bus. Meanwhile, in Riverside, Calif., a football player sued his former high school teachers at Murrieta Valley High School for giving him grades that were too high: He claimed that his education suffered because they cut him too much slack so that he could play football.

School discipline is another area where teachers and parents struggle for the upper hand. Lacey Renfro, a high school student in Tennessee, sued the cheerleading coach after she was suspended from a game for disciplinary reasons; Justin Swindler in Pennsylvania sued because he was expelled for soliciting a hit man via his Web site to kill his English teacher; and a father in Tennessee sued two teachers after they confiscated his son's yo-yo on a school trip where toys had been expressly forbidden.

Olson, a senior fellow at the Manhattan Institute, explains that, in the past, most schoolyard litigation grew out of incidents in which kids were barred from sports teams, or fell on the playground, or felt that they were discriminated against under the Individuals with Disabilities Education Act. It is rare that a simple grading squabble, such as the one in Peoria, will make it all the way to a court case -- in part because of a 1978 Supreme Court ruling that held that courts shouldn't second-guess a school on academic decisions (those grading squabbles that do make it all the way to lawsuits are usually under the purview of the Disabilities Act -- i.e.: "My kid was disabled and deserved special treatment.")

This doesn't mean that parents still don't threaten lawsuits over grades, however. Olson increasingly hears from school administrators who have received legal threats because of grading complaints and discipline issues. Few of these cases, he says, emerge in the media. "My guess is that the sort of strong-arming seen in the [Peoria] case is not in fact all that rare, but that the great majority of disputes never result in formal court filings and never result in publicity because neither side seeks it," he explains.

Pressure exerted behind the scenes tends to be more insidious than the interaction involved in public lawsuits, which, because they are argued in the open, lack some of the more vicious personal threats and allegations. In Washington D.C., for example, a teacher at the competitive Wilson Senior High School recently discovered that in at least 11 cases, student grades had been raised without the teacher's knowledge, apparently by an administrator who had felt pressured to help the students graduate (although no one has confessed to the act). Teachers who had flunked their students were appalled to see those same students walking across the stage at graduation.

One of those students had been in the Spanish class of teacher Anexora Skvirsky, who had given her a generous D -- and was promptly threatened by the student's father. Although she held her ground against the parent at the time, a year later someone in the administration apparently did not. Although Svirsky has been teaching for 19 years, she says it's only been in the last few years that she's witnessed such "an incredible advocacy" on the part of parents. Although she's never received a legal threat, parents regularly try to get her fired by complaining to the principal.

"It is hellish," she says. "So many times I've had stomachaches, headaches, insomnia, because a parent would call and try to intimidate me or complain about me to the principal with a letter."

Skvirsky places the guilt for the 11 anonymous grade changes squarely on the shoulders of the school's administrators, who she says regularly cave to powerful parents who "move mountains by just complaining." This, say teacher advocacy groups, is becoming a common occurrence, particularly in schools with rigorous academics and demanding parents.

"I'm afraid Peoria is not an anomaly; it's not commonplace but it's not unusual for teachers to be told to change grades," says Mitchell of the American Federation of Teachers. "In most cases the teacher refuses to do it and the administrator does it over their protestations."

But this is not a totally new phenomenon, either. According to Kathleen Lyons, spokesperson for the National Education Foundation, the occasional case in which unhappy parents threatened teachers with lawsuits and retribution if grades weren't raised has always existed. The difference now is that behavior of the last resort has become almost routine.

"There have always been some parents who want a special deal for their child," Lyons says. "There's nothing new there, except that a higher-stakes educational environment and the high stakes of standardized testing has led to high stress. Parents now know it does make a difference how your kids do in school.

"I think there's a lot more riding on it," she adds, "and that does tend to bring out the worst in people: When the stakes are high, you find transgressions."

One solution is to completely standardize education -- testing, grading and discipline -- so that there is no wiggle room in the system for outraged parents and their lawyers. But that resolution already has prompted other kinds of parent lawsuits -- in California and Texas -- that claim that the system is too rigid, and discriminates against their children's special needs.

Worse, total standardization can extinguish all creativity from the classroom. In Peoria, where the school district has reacted to the controversy by writing a new series of standardized rules for the classroom, Joice worries that teachers are ultimately going to become automatons. "We may not be able to be as creative with the units we use, which will be a travesty because every teacher has a specialty and if we can't share that with our students, if it's all black and white, then that's sad," she says. "If that's the case, why they don't just put computers out in the classroom as teachers?"

Even in districts that haven't bowed to pressure with standardized grading, the fear of lawsuits and parental retribution has undermined school programs and teachers' daily routines. Twenty percent of the respondents to the American Tort Reform Association survey, for example, reported spending five to 10 hours a week in meetings or documenting every little action they took with a student, in case of future litigation.

"It takes a lot of time to document everything: You have to document conversations, what you did, what the kids said in class," says Joice. "It will take more effort on the part of teachers if they want to stand up and say what happened."

Besides the simple question of time, lawsuits also come at a high cost for school districts and teachers: even a frivolous lawsuit over a grading dispute, which might be thrown out after just one hearing, can cost $10,000 in lawyers fees. School districts do have liability insurance, of course, as do teachers (some professional teachers organizations, such as the Texas State Teacher's Association, lure members with the promise of $6 million in liability insurance for those moments when "people are reacting with emotion rather than reason"). But that costs money, too.

"Lawsuits have become a great cost for school districts," says Julie Underwood, general counsel for the National School Boards Association. "The entire sub-specialty of education law didn't exist 25 years ago, and now it's a big, recognized sub-specialty. You can't keep track of the number of times that someone comes in to a principal's office and says, 'If you don't do this, I'll sue you.' It's just so commonplace." In fact, she says, all principals now have to undergo education-law classes before they can receive certification.

Finally, the students risk both the quality of their education and their faith in the system. Kids with lackluster achievement records who nevertheless head off to college with satisfactory grades thanks to Mom's strong-arm tactics are probably not going to make it far in higher education. Their classmates, who actually worked hard for their grades, will probably be demoralized too.

"It undermines the hard work of other kids in the classroom, when they see standards change for one student. It erodes the standards, when we really want students to know that standards are meaningful. And for students involved, it really cheats them of a meaningful experience," says Mitchell. "Sometimes failure is the best teacher a student could have."

This story has been corrected since it was first published.

Janelle Brown

Janelle Brown is a contributing writer for Salon.

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