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COURT VIEW

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.

Commercial applications

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.

Educational applications

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 stage.

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?"

Emerging ideas

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 disseminated.

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 curriculum.

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, Pa.

2. By the author.