Pro-student Court Rulings Decline, Researchers Show

Many think students have more rights than courts have granted

Federal and state appellate courts have become less favorable to student claims in school discipline cases even as perceptions about students’ legal entitlements have expanded, according to new research published in the fall issue of Education Next. The number of favorable rulings for students in school discipline cases has dropped from 41 percent to 19 percent over the period from 1968 to 2007, report education researcher Richard Arum and research fellow Doreet Preiss of New York University. However, the overall number of discipline cases brought to court has continued to increase in recent years. Despite the trend in pro-school case rulings, the probability of facing a pro-student decision has not significantly diminished.

Arum and Preiss find that many students now expect formal due process protections not only for major disciplinary actions but for minor day-to-day disciplines, as well. According to findings from a national survey of educators and students undertaken by the researchers, 62 percent of public school students believe that, if faced with long-term suspension or expulsion, they are legally entitled to at least one of the following: a formal disciplinary hearing, opportunity to be represented by legal counsel, opportunity to confront and cross-examine witnesses bringing the charges, or opportunity to call witnesses to provide alternative versions of the incident. Approximately one-third percent of public school students believe that they are legally entitled to some form of formal due process protection when they have their grades lowered for disciplinary reasons, are suspended from extracurricular activities, or face in-school suspension.

In addition, expectations about what is required of teachers and administrators regarding student due process protections often reflect an inaccurate understanding of the law, note Arum and Preiss. For example, when asked about lowering student grades for disciplinary reasons, approximately half of public school teachers and administrators believed it was prohibited. Among those who did think it permissible, 32 percent believed that students subject to such disciplinary sanctions were entitled to formal due process protections. In fact higher courts have ordinarily not required such formal protections except in cases of long-term suspension or expulsion.

The institutionalization of student due process protections, however, goes well beyond appellate case law, having been enshrined in extensive state statutes and administrative regulations. Over the last few decades, the law has come to permeate school practices by highlighting codified disciplinary procedures. While discipline policies vary across schools, districts, and states, the scale, scope, and level of complexity of the legal regulations affecting day-to-day school practices appear quite formidable. Generally speaking, then, educators and students have developed a set of legal understandings that assumes a broad and expansive definition of student legal entitlements.

Ironically, the survey findings show that increased perceptions of student legal entitlements correlate with decreased reports of the fairness of school discipline. The survey’s findings also reveal that students in schools with predominantly white students were nearly twice as likely as those in schools with predominantly nonwhite students to report having pursued a formal legal remedy for a perceived rights violation.

The substance of the cases brought before the courts has changed over time. Since 1993, weapons and violence cases have increased to become nearly 40 percent of all K–12 public school discipline cases. Cases involving alcohol and drugs rose to a peak in the 1990s, coinciding with the nation’s “War on Drugs” while the number of cases involving protest and freedom of expression peaked in the mid-1970s (though they are again on the rise). In recent years, school discipline cases have increasingly involved student disability. From 2003 to 2007, 18 percent of cases included discussion of student disability status. Arum and Preiss specifically focused on appellate-level court cases because they define case law, generate media coverage, influence public perceptions, and can be tracked over time as an empirical indicator of the broad parameters of court climate toward school discipline.

With the increase in the number of discipline cases brought to court and the fact that these cases can include personal liability claims, even the threat of a lawsuit can cause considerable professional anxiety for teachers and administrators. Interestingly, Arum and Preiss found that many more public school teachers and administrators are threatened with lawsuits over school-related matters than are actually sued. Among the survey participants, 15 percent of teachers and 55 percent of administrators have been threatened with a legal suit (for administrators with more than 15 years of experience, the number rises to 73 percent). Only 14 percent of administrators, however, have had actual experience with being sued.

For their research, Arum and Preiss collaborated with the School Rights Project in conducting a national telephone survey of 600 high school teachers and administrators and site-based surveys of 5,490 students and 368 educators. The site-based work, which included in-depth interviews and ethnographic fieldwork, examined 24 high schools with varying legal environments in New York, North Carolina, and California. Arum and Preiss chose to focus their research on appellate-level court cases because of the significant role they play in defining case law, generating media coverage, and influencing public perceptions.

Read “Law and Disorder in the Classroom”

Richard Arum is professor of sociology and education at NewYork University. Doreet Preiss is a research fellow and doctoral candidate at New York University. Arum’s and Preiss’s research will appear in the forthcoming book From Schoolhouse to Courthouse: The Judiciary's Role in American Education by Joshua Dunn and Martin R. West (Brookings Institution Press and Thomas B. Fordham Institute, 2009).