Legal Ease: School Law Notes/'There-oughta-be-a-law-itis' is infecting our schools

In its final days, the court handed down two important rulings for public schools: the “Bong Hits 4 Jesus” case, officially known as Morse v. Frederick, and the student diversity decision, Parents Involved in Community Schools v. Seattle School District.

These decisions have been widely reported. But one thing they had in common got less attention: In both cases, at least some of the justices acknowledged the problems of the increasing amount of litigation involving legal second-guessing of public schools.

In Morse, Justice Stephen Breyer’s separate opinion disagreed with the court’s ruling on the free speech issue but also criticized the dissenting justices. He warned that ruling against the school board in the way they proposed “would risk significant interference with reasonable school efforts to maintain discipline.”

Justice Clarence Thomas went further, questioning the whole idea of student free speech rights in school.

The somewhat “ad hoc” standard the courts apply in these cases, he also warned, is one that is “continually developed through litigation against local schools and their administrators.” He expressed concern about “judicial oversight of the day-to-day affairs of public schools” and said judgment calls about discipline should be made by school boards, not courts.

One doesn’t have to agree with his overall conclusion (no other justice did) to concede that he made some good points about some of the realities of the law and education.

In the diversity case, Justice Breyer’s dissent about the sophisticated Seattle and Louis­ville student assignment programs concluded that the “long history of [the districts’] efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation.”

The court should honor this “modest request,” he wrote. The bottom line here is that lawsuits second-guessing educators resulted in a dramatic change in the legal landscape for schools struggling to do what society has asked of them -- and made the job that much harder.

When lamenting lawsuits, it’s worth remembering that there’s truth to the idea that part of the reason America has so many lawsuits is that Americans have so many rights. But the increasingly nasty tone of our civic discourse plays out in schools and courts, too.

Witness the intensely legalistic nature of special education, for example, or the constitutional crises we’ve seen over the right to bring cell phones to school, the right to sit at the cafeteria table of one’s choosing, the right to create outrageously false online profiles of educators, and even the right to have the image of Tigger on one’s socks.

“There-oughta-be-a-law-itis” in education isn’t limited to the courts: It afflicts the legislative and executive branches, too. Like in the judiciary, this has both good and bad aspects.

The sympathetic view is that government officials and lawmakers are paying so much attention to education because they recognize that nothing is more important to our prosperity than strong public schools.

In our global, information-based economy and our increasingly have/have-not society, the stakes have never been higher. Achievement gaps have gone on for too long. The law is how We the People try to realize our collective aspirations for all children.

But politics being politics, federal and state leaders constantly seem tempted to play school board -- especially when there are headlines to be had.

This temptation grows as the federal and state governments contribute more education funding, bringing power-of-the-purse-string realities to bear. And these officials are subject to the same criticism sometimes leveled at school boards: that the issues they choose to pursue might have less to do with what they really should be doing than with what they feel capable of doing.

The end result is that when it comes to education, Tip O’Neill’s maxim that “All politics is local” is being turned on its head: No politics is local -- or at least exclusively local.

That’s where today’s school boards have yet another critical role to play. When the hyper-legalization of public education means local communities end up with less and less voice in their schools on the really important questions, community engagement suffers. That has real implications for public support of schools. And that, in turn, has real implications for children.

School boards can help forcefully remind their communities, lawmakers, policymakers, and opinion leaders of these realities. And they can actively support vigorous advocacy -- both legislative and legal -- to increase their collective voice.