Flunking Out of School? Get a Lawyer

Teachers, be wary of whom you fail.

Some parents have slapped lawsuits on teachers, saying their kids deserved better marks and should be allowed to graduate from high school despite their grades.

Arizona English teacher Elizabeth Joice got a letter from a lawyer representing one of the students she failed. The letter asked her to take "whatever action is necessary" for the student to graduate or else the family would sue. Joice said the student plagiarized work, failed a paper and did not attend makeup sessions, among other things. School officials caved and the student was able to retake a test five hours before graduation and receive her diploma.

The family's lawyer, Stan Massad, wrote to Joice and claimed the teacher failed to produce a syllabus indicating how she arrived at her grades and said there was a question of subjective grading. He also said Joice assured the student she would graduate. Joice refuted the claims.

In January, 15-year-old Ohio resident Elizabeth Smith and her mother sued the Revere School District and 11 teachers over her failing grades. The suit, which sought $6 million, said the school’s grading practices punished the girl for her frequent lateness and absences even though she had excuses. That case has since been dismissed.

And in Kansas, several school officials resigned in April after biology teacher Christine Pelton gave 28 of her 118 students a grade of zero for a project she said students plagiarized. The school board later reduced the students' penalties and directed Pelton to change the project's weight of the total semester grade. Pelton resigned a day later.

Some parents thought the students were not given enough information about plagiarism and said Pelton was inexperienced. But Pelton said she asked parents and students to sign a syllabus in which she laid out the definition of plagiarism and the penalty.

In a day and age when litigation appears to be the most effective way to get what you want, the question is whether teachers should alter their methods to keep lawyers at bay.

"It used to be said that the squeaky wheel gets the grease. Unfortunately, now it's the parents with the lawyer" who get the second chance, said Walter Olson, senior fellow at the Manhattan Institute and author of The Litigation Explosion. "It's no way to run a schoolhouse and it's a terrible lesson in itself to teach kids."

Apart from the cases where some parents have legal weight behind their lawsuits, such as cases where a child's disabilities are dismissed by a teacher as poor work ethic, there is no excuse for parents litigating a way for their kids to make the grade, experts said.

"The climate is just so completely different than what it was a generation ago," Olson said. "Every threat winds up making people afraid and pre-emptively, causing teachers to feel a little more at arms length and they have to do things in a little more rulebook kind of way."

David Griffith, spokesman for the National Association of State Boards of Education, said it's not surprising that teachers are coming under the gun around graduation time, but that the issue of parents suing teachers for this type of activity has not yet reached a national scale.

"There's always going to be someone who would look at the lawsuit as a last result," Griffith said. But "you would hope parents would be involved in the students' education well before that … teachers don't take any joy in failing the students."

The No Child Left Behind education law President Bush signed in January included a teacher liability section to help ensure teachers, principals and other school professionals are able to undertake "reasonable actions to maintain order and discipline in the classroom." The law also maintains teachers are protected from most lawsuits if they were acting within their responsibilities.

Some experts say these lawsuits are a result of bad public policy.

"A good first step towards reducing classroom litigation would be to reform the laws that directly encourage it," said Marie Gryphon, an education policy analyst at the conservative Cato Institute in Washington.

Gryphon said the Individuals with Disabilities in Education Act (IDEA), for example, encourages and empowers parents to sue schools in order to obtain educational options for kids with special needs. IDEA mandates that states provide an appropriate education to students with disabilities and requires the federal government to provide 40 percent of the funding.

"If the present climate is too litigious, our lawmakers deserve much of the blame," Gryphon said.