Last month, federal appeals-court judge Richard Posner told a gathering of education lawyers that the judiciary should exhibit greater restraint before overriding the management decisions of school administrators:
We certainly have no experience running schools. The experts are the school administrators. They know a lot more about it than judges. It seems to me judges ought to be very cautious before they try to displace the authority of the school administrators.
In an article newly published in The Huffington Post, the SPLC’s Adam Goldstein explains why this approach is dangerously misguided.
Much of what Judge Posner told the education lawyers is, in fact, consistent with sound First Amendment principles. He devoted a good bit of his speech to, quite correctly, denouncing the phenomenon of “hurt feelings” lawsuits by thin-skinned plaintiffs who cannot abide being exposed to uncomfortable ideas — which is the origin of much of the community pressure that induces schools to censor unnecessarily. Where he erred is in extrapolating from that point to the broader conclusion that courts need not be “second guessing” school administrators at all — which, as Adam points out, could just as easily apply to “second guessing” an insurance company’s “expert” decision to violate a coverage agreement, or “second guessing” a stockbroker’s “expert” decision to defraud his customers.
Adam’s well-supported article needs no reinforcing, but a few points bear special emphasis.
First, the idea that administrators are owed extra-strength deference presumes that their decisions are, in fact, the product of thoughtfully applied expertise. But we know that the converse often is true. Disciplinary actions frequently are the result of one-size-fits-all policies that leave “zero tolerance” for individualized discretion, resulting in the absurd outcomes that provoke lawsuits. And these policies increasingly are purchased off-the-shelf from self-appointed “curriculum experts,” so that even the school board has applied no expertise — it has abdicated its policy-development role to the lowest bidder.
Second, the revelations of the past year have conclusively demonstrated what happens when school and college administrators become convinced that they can do no wrong.
Atlanta School Superintendent Beverly Hall and her lieutenants clearly believed that they were entitled to special deference to their expertise, and that their decisions would not be “second guessed” by outside meddlers. And that is why they ran wild, damaging the futures of countless young people in a still-unfolding standardized testing cheating scandal in which whistle-blowers were bullied and threatened into silence. Are these the education experts whose decisions should be impervious to judicial scrutiny?
Gary Schultz plainly believed that he and his fellow Penn State administrators were exempt from “second guessing” — even by the grand jury that he is charged with misleading. And that is why Schultz is a criminal defendant and no longer Penn State’s vice president for business and finance, and why child sex abuse that prosecutors say he knew of in 2002 went unreported to police and inadequately investigated. Are these the sage administrators whose judgment is so superior to that of a Harvard-educated jurist as to be unreviewable?
Along with Texas Gov. (and presidential candidate) Rick Perry, Judge Posner is the second “conservative” in recent weeks to call publicly for greater judicial deference to the decisions of local school officials.
What these conservatives overlook is that judges do not initiate court cases. Families do. And most families resort to the courts only where the normal dispute-resolution process, through school district channels, has failed them.
When we say that judges should defer to school administrators, let’s be clear what we are really saying. We are saying that judges should side with the government against families. We are saying that, when parents disagree with the way their children are being educated or disciplined, the courts should start with a heavy presumption that the parents are wrong.
That may be some sort of ideology, but it most certainly is not recognizable as “conservatism.”