Paralyzing Fear? Avoiding Distorted Assessments of the Effect of Law on Education

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 litigation 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 litigation and the burdens of legal compliance.2 The cited source for these media accounts was an organization with the euphonious name "Common Good. " This self-styled "bipartisan organization," headed by attorney and author Phillip K. Howard, has prominently propagated the view that fear of litigation 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 law" 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 crisis of legalization 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 litigation 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 reform 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 litigation 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. …