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Judges Should Stop Giving Deference to School Officials

It is time to end this bizarre practice that assumes judges who are competent to decide whether a man lives or dies for his crimes are incompetent to decide whether a school administrator crossed a line in a strip-search.
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In November, Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals gave a speech where he lamented that courts were no longer giving substantial deference to the decisions of educators because, in his words, judges "don't have any systematic knowledge of the education process."

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.

Judge Posner is wrong, and it is time to end this bizarre practice that assumes judges who are competent to decide whether a man lives or dies for his crimes are incompetent to decide whether a school administrator crossed a line in a strip-search.

The Supreme Court's Hazelwood v. Kuhlmeier case is often cited to support the idea that judges must bow to the decisions of educators. In the language of Justice White's majority opinion, "[t]he education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local officials, and not of federal judges."

This oft-parroted phrase is utterly meaningless rhetorical drivel. Of course education is primarily the responsibility of educators and parents. That doesn't mean judges are incompetent to ensure that the education students receive respects their basic civil rights.

You could take Justice White's language and apply it to virtually any case that comes before any judge, all the time, anywhere. Judges could cease to second-guess whether insurance companies should pay injured parties because insurance is primarily the responsibility of insurance companies. Courts could shrug at whistle-blowers disclosing wrongdoing on Wall Street because arranging stock deals is primarily the responsibility of the companies who issue stock. (Of course, judges having been in the education system for two decades ought to give them some bearings as to what might be normative.)

The fact that White wrote this decades after Brown vs. Board of Education desegregated our schools makes the idea that judges don't, at times, know better than school officials all the more laughable.

Lost in both Justice White's vacuous sentence and Judge Posner's speech is the fact that professional educators follow policies created by elected school board members. Even if we were to believe that educators possessed some magic knowledge that empowers them to violate civil rights in an educationally sound way that judges shouldn't disturb, surely it is not the case that a judge isn't competent to second-guess a politician. If so, we need to immediately release Gov. Blagojevich.

In Judge Posner's speech, he lamented, "When I was a kid, the notion that children had rights against schools was unknown." With respect, Judge Posner was 15 when the Supreme Court ended segregation in schools. I think, perhaps, the concept of civil rights in schools was not quite unknown. Nor do we wish to return to an era when such rights were unknown.

So why am I telling you this now? Because schools, including colleges and graduate programs, are still whining for "substantial deference" for their wrongdoing, and judges are all too often willing to give it to them.

Tell the alleged victims of Jerry Sandusky how Penn State is entitled to substantial deference to its decision not to tell the police. Tell the parents of Robert Champion, hazed to death at Florida A&M with still no explanation, that the school is entitled to handle his death any old way it likes. Tell the Texas cheerleader forced to cheer for the basketball player who assaulted her. Or the Pennsylvania students who had their high school spying on them via the webcams in school-issued laptops.

Educators are not perfect. And while education may be primarily the responsibility of educators, it is primarily the responsibility of judges to ensure the rights of young people are not violated in the process of education.

For too long, judges have abdicated that responsibility, and that endangers our well-being as a nation. Because, in the words of Earl Warren, writing for the majority in Brown:

Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship.

It is the primary responsibility of all lawyers, including judges, to maintain the foundation of our democratic society.

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