An ounce of prevention . . .
By Perry A. Zirkel (1)
From: National School Board Association, "Updating" Newsletter
The value of the ancient adage "an ounce of prevention is worth a pound of cure" has not
been lost in the field of law.
California attorney Louis Brown, acknowledged as the father of preventive. law, began
spreading the word as far-back as 1950. Brown explained that the primary purpose of preventive
law is to minimize the risk of litigation. The intended result is to reduce the considerable costs -
human as well as financial - of defending lawsuits.
Benefits of preventive law
Brown applied lessons learned from the medical profession when he suggested that it is
better to focus on legal hygiene, including the early detection of legal risks, than to have to deal
with legal crises and "autopsies" that occur respectively before and after lawsuits.
School systems are confronting substantial and sometimes staggering litigation . A
preventive approach merits a closer look by board members and administrators to discover how it
can be applied to public education.
For example, a recent survey conducted by North Texas State University in cooperation
with the Texas Association of School Boards revealed that the average cost of attorney's fees in
1982-83 was $81,000 for Texas school systems with enrollments of over 10,000 students. That
average expenditure excludes court costs, case settlements, and liability insurance. A preventive
law approach might free much of that money to be spent on instruction and program support.
Preventive law, which borrows from experience in the medicine and accounting fields,
has proven useful in the commercial world. Initial applications concentrated on the legal areas of
transaction planning such as contracts, incorporations, wills, and trusts.
Individual clients have benefitted from the periodic legal checkup, a systematic process
that includes data collection, analysis, recommendations, and follow up, that is geared to
avoiding litigation. Corporate clients have benefitted from a parallel procedure: the legal audit.
Comparable to a fiscal audit, a legal audit uses an outside specialist and a systematic
checklist to review legal vulnerability that results in recommendations to the corporate board. As
corporate attorney Robert Shafton has suggested, planning and consultation should be the focus -
not reacting and litigation.
Thus far, the recognition, much less the application, of preventive law has been belated
and brief in the education field. Notably, the Education Commission of the States has advocated
and applied preventive law for identifying emerging legal issues in public education on the state
level. In addition, a few state education departments have developed and used audit instruments
to assess compliance with special legal requirements.
For example, in Pennsylvania a checklist instrument is used for internal and external
review of vocational-technical schools in relation to federal civil rights legislation and
regulations. Also, some state school boards associations, including those in Pennsylvania and
Texas, provide assistance to local school boards for the review of local board. policies to ensure
compliance with law.
Still, instruments and implementation plans supporting preventive law are in the infant
Believing that preventive law techniques from the commercial world are adaptable to the
educational as well as business functions of local school systems, attorney William Bednar, who
represents several Texas school. systems, has proposed that "preventive law concepts would have
great and immediate utility in many areas of the school practice if we would only pause, think,
and utilize them." He recently asked: "Can we develop checklists and procedures for
determining the legal health of our clients?"
Educators and attorneys have begun to respond to Bednar's challenge. For example,
attorney Asa Reaves, a former principal and currently on the staff of the Association of
California School Administrators, and Seattle-based attorney John Terry are working in
California and in the state of Washington to compile a legal audit instrument for public school
systems based on state statutes, regulations, and court cases. Their instrument will serve as a
comprehensive mechanism for evaluating and improving local school board policies in relation
to applicable state law.
On a related front, a checklist based on the seemingly bewildering and certainly
burgeoning array of federal court decisions concerning the narrower area of the public school
curriculum currently is being developed. (2) To organize the project, the holdings of more than
160 court decisions have been distilled into operational items in seven areas:
- •teaching methods and coverage
- •library and instructional materials
- •special education
- •bilingual education
- •sex, health, and physical education
- •religious instruction
- •achievement and psychological testing.
Within each of these areas, items comprise a checklist of "yes" or "no" questions targeted
to local policy and practice. The instrument also provides the:
- •estimated vulnerability to successful suits;
- •approximate assessment of compliance costs;
- •relevant sources of federal law;
- •related case citations.
A validation study and pilot testing of the instrument will be done before it is
Not a cure
A preventive approach to the legal problems of school systems won't be a quick fix or a
cure-all. As principal Robert Carr explained humorously in Principal magazine (September
1983), the way to reduce or eliminate potential liability is to remove doors and furniture;
discontinue lunch and recess programs; and drop science, reading, and sex education from the
But the scope of the problem shouldn't deter school leaders from the challenge of
preventive law. The potential savings from a circumspect and sustained program of preventive
law, when combined with prudent overall planning and daily operations, can be substantial -
leaving more resources for education rather than litigation.
1. Perry A. Zirkel is University Professor of Education at Lehigh University, Bethlehem,
2. By the author.