How the Lawyers Took Over Education

1. How the Lawyers Took Over Education Jim Walsh

2. Personal Reflections • I attended Catholic school for 13 years—first grade through first year of college. • Very little law applies to Catholic schools. • U.S. Constitution does not apply. • Catholic school is an institution based on TRUST—not law. • We have learned that there are pros and cons to trust-based institutions.

3. Public Education: The Early, Early Days • In colonial days, private schooling was the norm. • Thomas Jefferson called for a system of public schooling for 20 young boys who could not afford private schooling. • He advocated this plan by saying that it would enable them to “rake from the rubbish” 20 promising scholars.

4. Education, Morality and Religion • From the beginning in America, education was considered a moral enterprise, designed to inculcate virtue as well as academic achievement. • In the early days a “moral enterprise” was also a religious enterprise. • Public schools were overtly Christian and Protestant. So was America.

5. Horace Mann • In the 19th Century, public education became compulsory. • The emphasis on morality continued. Horace Mann called for school board members to be “sentinels” who should ensure that every teacher is “clothed in garments of virtue.”

6. Diversity • In the late 19th and early 20th Centuries, America got considerably more diverse. • Some groups (most notably, Catholics) set up their own system of education. • But many others crowded into public schools.

7. And Now…. • Diversity has continued to increase exponentially. • The leadership of Texas public schools continues to be overwhelmingly mainstream Christian in religion, and conservative in values. • But the population is very diverse in religion and values.

8. The Law Comes to the Party • The first school law case I read: West Virginia State Board of Education v. Barnette (1943). • Court rules that school cannot require Jehovah’s Witnesses to recite the Pledge of Allegiance. • The message: Freedom of speech and of religion will sometimes trump widely held values.

9. School Prayer • In 1962, the Supreme Court struck down a state law requiring the recitation of a prayer written by the NY Board of Regents. • In 1963, the Court struck down a Pennsylvania practice of reading from the Bible and reciting the Lord’s Prayer over the P.A. • The message: public school is not a Protestant Christian institution to which others are invited.

10. Religious Values: Moral Values • These cases made it clear that the Constitution prohibits public schools from promoting religious practices and beliefs. • They do not prohibit public schools from promoting moral values and the beliefs and habits that underlie those values.

11. Down With Trust: Up With Law • Tinker v. Des Moines—kids acquire 1st Amendment rights in school. • New Jersey v. T.L.O.—kids acquire 4th Amendment rights in school. • Goss v. Lopez—kids acquire the right to due process, 14th Amendment rights in school. • The notion that educators can be trusted to do the right thing slowly erodes.

12. Here Comes the Judge • When relationships are based on law rather than trust, the legal profession is playing on its home court. • There were no “school lawyers” in the 1950s. • Now we have the Council of School Attorneys, the School Law Section of the State Bar and numerous conferences and publications aimed at school lawyers.

13. Special Ed • Our special ed laws epitomize the movement from trust-based education to law-based education. • Every aspect of special education is constrained by legal requirements, process and paperwork. • Schools are held accountable through a legal system of dispute resolution.

14. What We Need is Balance • A system that is based entirely on trust will facilitate abuse of that trust. It will work well for some, but not for all. • A system that is based entirely on law will lead to paralysis, conflict, and resources spent on legal disputes rather than education. • We need a sensible balance.

15. Balance: A Good Example • We used to have a trust-based system of protecting kids from educators who would sexually abuse them. • It didn’t work so well. • We’ve put some sensible laws in place. • Problems persist, but we have made progress.

16. The Big Challenge • How do we maintain the notion that education is a MORAL enterprise without making it a RELIGIOUS enterprise? • My modest suggestions for this are on the next slide!

17. What the Courts Have Not Said • Not a single court case has struck down a school district’s efforts to inculcate positive values, healthy habits and strong character for students. Not one. • Schools CAN cultivate virtue. • Virtue is a MORAL term—not a religious one.

18. What About Policy? What do you think of this? “The following major ethical principles form a philosophical judgment and define the moral duties and virtues implicit in ethical behavior. The District is committed to the principles of:” See Next Slide!!

19. 10 Principles Honesty Integrity Promise keeping Loyalty Fairness Caring/concern for others Respect for others Law abidance/civic duty Pursuit of excellence Accountability Leander ISD Policy AE Local

20. It Starts With You • But if you want to cultivate virtue in the kids, you have to demonstrate it yourself. • You should be “CLOTHED IN GARMENTS OF VIRTUE.” • Horace Mann was right.

21. Contact Jim Walsh Walsh, Anderson, Gallegos, Green and Treviño, P.C. P.O. Box 2156 Austin, Texas 78768 Phone: (512) 454-6864 Fax: (512) 467-9318 Email: jwalsh@wabsa.com Web: www.WalshAnderson.com Twitter: http://twitter.com/JWalshtxlawdawg

22. The information in this handout was created by Walsh, Anderson, Gallegos, Green and Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.