Classroom and Courtroom: The Escalating Costs of School Legal Fees by Kaye Compton |
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The newest course to be added to the standard school curriculum of reading, writing and arithmetic is Litigation 101. Rumors and threats of legal action, cases settled out of court, and those taken to court are an enormous drain on time and money. Money spent on legal fees could potentially be spent on hiring more teachers, providing better student services, and other more pleasant possibilities This paper will examine the legal history of the Greene County School System from1997 to 1999. During this time period, the school board dismissed one superintendent, hired two others, and became embroiled in complex, costly legal imbroglios. The aftermath of seemingly simple changes in personnel alerted local residents to the incredible cost of litigation.
Data Analysis
System Enrollment System Budget
Greene County 12,761 $72,517,211.72
Barnes County 10,068 $58,555,611.38
Carnes County 5,799 $28,740,190.24
This information comparing adjacent counties was obtained from the state Department of Education Financial Analysis Report for the year ending June 30, 1998.
Review of Literature
In Proliferating Politics and Prostituting Professionalism (1978), Herbert Smith examined the elements that adversely affect education, including the need to operate in an increasingly bureaucratic government. School litigation cases were especially cited for their demoralizing and wasteful effect on education. The legal atmosphere has not improved. An example of a prep book for lawsuits is What to Do before (and after) You say, "You’re Fired!", by Edward R, Lilly. Published in 1988, it provides school executives with due process information concerning termination of school personnel, including teachers. It outlines the usual reasons for termination, ranging from reduction in workforce to wrongdoing on the job, and explains the burden of proof resting on the employer. Certain reform acts will ease this burden.
In 1992, a seminar workbook So Now You’ve Been Sued: Strategies That Win, Defending Civil Rights Suits against Your School District was published. Chapters include a summary of the Civil Rights Act of 1991, Preparing Expert Witnesses, Child Abuse and Neglect Cases, Special Education Litigation, Liability and Insurance Issues, Due Process under the IDEA, Dealing with the Press, and Defending against Whistleblower Cases. Obviously suing school districts has become so popular that one needs a guidebook to determine how to maximize profitability.
The Secret Clause
The overall budget mentioned for these systems includes embedded lawyer fees. A public school is not allowed to spend money for services that are not rendered. This means that legal fees cannot be a line item in the budget if the amount of these expenditures is not known (1). A system may have an agreement with a legal consultant that a certain number of hours are billed at a reduced rate and, after that, the normal fee.
However, nothing in the system budget mentions legal fees. Expenditures in the budget increased slightly over $4 million dollars form the 1997 school year to the 1998 school year. This includes the time of the firing of the superintendent. Possibly, not all of the increase was due to an increase in legal expenses, but the coincidence is intriguing.
How Public is Public?
My major sources of information for this paper were to be board minutes, newspaper articles, and cases on file at the courthouse. None of these places are open on the weekend and all close at 5:00 P. M. on the weekdays. Such scheduling does not make for easy access for the public. In addition to the time constraints, there was a certain amount of stone-walling at the Greene County board office. Executive board meeting minutes are not available to the public, but regular meeting minutes are. When I asked to see the regular meeting minutes, I was told that there would be no helpful information there. I was then given several names in the state office that I was assured could give me the data that would suit my needs. I was somewhat dubious about the accuracy of these statements and their intent.
The School Law Suit Routine
Research into civil suits against the Greene County school system generated some surprising findings. The majority of the cases against Greene County schools were workmen’s compensation and garnishment of wages. In a three year period there were only three personnel cases, a far cry from the rash of court cases I anticipated. An interview with a school law professor clarified the relative lack of cases going to trial. Settling out of court has become an accepted practice in most school systems. There are several reasons for this. One is that settling out of court is less time consuming and less expensive. Also, systems prefer spending the money rather than risking adverse publicity, which can arise from lengthy litigation. Loopholes abound. If the case is not airtight, if the homework has not been done exceptionally well, the courts may rule against the school system. For school systems, most legal firms advise that it is more expedient to settle, allowing the insurance company to help finance legal fees and settlement amounts. Of course, if the school district acquiesces too often, then premiums escalate (2).
The Case for the Case
So what happened with the superintendent and the school board? As previously mentioned, executive session board minutes are sealed, so what exactly transpired may never be known, unless memoirs are written. However, some details can be found in the local newspaper. There had been friction within the board since two new members were seated in January of 1997. In virtually all reported decisions two of the standing members of the board voted for the superintendent’s proposals and the two new members voted against them. The fifth vote became the deciding vote and it shifted from side to side. Interestingly, this vote belonged to the chairperson. The general public was unhappy about the continuing controversy surrounding board decisions and a recall of the two new members who voted against the superintendent’s proposals was contemplated. However, the board remained intact.
On March 10, 1998, a citizen made a 45 minute talk during a board meeting against a facility identified as Teen Plus. Like the school board, Teen Plus operated as part of a collaborative interested in improving community opportunities for the Greene County youth. The citizen opposed the facility and the information he claimed it dispensed. After the regular meeting, the board went into executive session and voted immediately to remove themselves from the collaborative. The superintendent commented that on nearly every issue for the last year, the stand had been that more time was needed to examine the facts. Suddenly, a 45 minute talk provided enough information to make a far-reaching conclusion about the continued association with Teen Plus, an organization supposedly interested in the well-being of the students of Greene County. He protested the quick decision. The subsequent discussion lasted more than four hours (3).
On March 16, the board met again and suspended the superintendent with pay. The same day there was a protest at the high school adjacent to the central office. Students walked out to the football stadium and had an impromptu rally. Feelings ran quite high because the superintendent’s daughter was a junior at the school. The cause celebre, the superintendent himself, even made an appearance. Some students in their enthusiasm marched over to the central office where the local television station was on hand to film whatever students could think up to say. Most students were back in class in about an hour, but several other walkouts/protests occurred over the next few days and the cameras were always present. One clever principal turned the occasion of a huge walkout into a fire drill and had the students back in class before the television crew arrived.
Obviously, the protests were being orchestrated by adults.The actual time out of class does not begin to account for the mental distractions that were occurring even when the students were in class. As a teacher of English at the high school I felt these acutely because his daughter was in one of my British Lit classes.
On Sunday, March 22, there was a rally on the lawn of the courthouse (4). Supporters of the superintendent wrapped themselves in the flag and quoted the Bible, to give credence to their stand. During the spring break on April 14, 1998, the board called a session that lasted for over five hours. At that time the board fired the superintendent citing, "philosophical differences" (5). He continued to be employed by the system until June 1999 at a salary of $110,000 a year. Although in the terms of the agreement he was called a "consultant", he was not allowed in any school. An interim superintendent was hired the same month who served through October of 1998. A new superintendent was on the payroll beginning in August, but did not arrive in Greene County full time until October. Because the new superintendent was completing his move from another state during August and September, a consultant was hired (6). The interim was paid a daily rate of $400 and the base salary of the new superintendent was $111,000 which is a daily rate of $462.50. When I asked about salaries for any consultants hired during this period I was told that none was hired. Just another brick in the wall.
Who Hears Whom
The chaos surrounding the firing of the superintendent created a difficult procedural situation. Due process ensured certain procedures to the released superintendent, such as a public hearing with witnesses (7). Most of the personnel matters proceed with the administration gathering and presenting evidence to the board, while the employee presents the defense. The board then makes a determination of what action, if any, should be taken (8).
In this case the board members needed to act more like a board of directors investigating a CEO. They were obliged to present a case that the superintendent should be disciplined and took the position that he should defend himself against the allegations of impropriety (9). But the school board also must decide the legitimacy of firing an employee. Thus, the school board was in the odd position of serving as the prosecution, judge, and jury. There was no public hearing; there was a settlement instead.
The community voiced their opinions in the paper, where letters to the editor abounded. Contributions to the "Buzz", a local, anonymous column composed of comments by residents, overflowed. Although community interest in the schools reached new levels of concern, for the personnel the time was fraught with concern. Because the board obviously did not mind dismissing someone over "philosophical differences", teachers tended to doubt their rights to voice an opinion. "Freedom of speech" did not necessarily apply to the employees of the system. The school administrators had a particularly fine line to walk. Even elementary students were pulled from classes by some parents to participate in protests against the firing. Running a school became very stressful. For the remainder of the year it was a struggle to get students to focus on academic issues rather than external events.
Stress, distractions, adults behaving badly, high emotions, and four superintendents salaries; all for one case that did not darken the doors of the courthouse. What could have been accomplished academically and professionally if all this time and energy had been channeled differently? In the case of the four superintendents, Shakespeare was right, "All are punished."
For a few months Greene County shelled out $1,300 a day for the salary of three superintendents, two of which were not working there. This does not include the elusive consultant. Weekly tribunals, principal’s meetings, juvenile court appearances, emergency meetings with the superintendent all tax the physical limits of the school administration. Five hour board meetings, constant media attention (usually negative), extensive documentation create a defensive mode that is counterproductive to the well being of the system. Wonderful things may be happening in the classroom, but none of the bevy of superintendents is available. They are all in meetings with lawyers.