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IN DEPTH: Consent Decrees Undermine Freedom & Accountability in Public Education
Public schools are dynamic, ever-changing institutions; consent decrees are inflexible and difficult to change. It's not a good marriage.
Lawsuits against public schools sometimes end with a consent decree--a binding, legal agreement between plaintiffs and a school district specifying how the problem in question will be remedied. New York City's public schools have signed two new consent decrees in 2004 alone, and have previously signed major decrees covering the provision of special education, the due process rights of students facing suspension, the sale of non-nutritious foods, and much more.
These consent decrees add to an already onerous burden of law and procedural requirements faced by educators, who sometimes struggle to find the time to teach and who work with the constant fear of being sued. What's more, consent decrees can undermine the very accountability that lawsuits seek. Educators are held accountable not for their effectiveness, but for their adherence to proper procedure; and they are accountable not to parents and the tax-paying public, but to judges and plaintiff's attorneys.
A consent decree can even harm the very students it was intended to help, especially when the decree outlives the injustice it sought to remedy. Take, for example, New York City's bilingual education program.
A recent article in The New York Times told of angry Latino parents who say the bilingual education system has "consigned their children to a linguistic ghetto." It's "almost impossible" to get a student out of the bilingual track and into mainstream classes, they say, and to make matters worse, some Latino children are being "shunted" into bilingual education, even if they have been "born in the United States and previously educated in English."
Bilingual education was created to help Latino children. Thirty years ago, a lawsuit filed by the Puerto Rican Legal Defense Fund resulted in a consent decree "requiring that New York City offer bilingual education." But like so many consent decrees, what was intended to be a helping hand has turned into an iron fist.
"For years," the Times article notes, "bilingual education coasted along on its perception as a virtual civil right for Hispanics. Maybe such a reputation was deserved 30 years ago ... But as innovation hardened into orthodoxy, and as a sort of employment niche grew for bilingual educators and bureaucrats, the idealistic veneer began to wear away."
Consent decrees are often complex and voluminous, imposing onerous procedural requirements, and intensifying a legal fear already hanging over the everyday decisions of teachers and principals. The terms of the decrees often go far beyond the demands of the federal laws on which they are based, and dictate exactly how schools must comply, regardless of budgetary constraints or other considerations.
Worse still, many consent decrees are unchanging and inflexible. They can remain in effect long after a violation has been corrected, and may be changed only with the approval of plaintiffs' attorneys and a judge.
Public schools, on the other hand, are vibrant, changing and challenging institutions. Educators must think on their feet, be flexible, be creative. But to do that, educators need exactly what consent decrees take away: freedom to do their jobs effectively, to make everyday decisions without worrying about burdensome procedural requirements.
Bilingual education is far from the only program controlled by a consent decree. As mentioned, in 2004 alone, the New York City Schools entered into two new consent decrees. Marc Epstein, Dean of Students at the city's Jamaica High School, asks:
"Do [these decrees] make our schools better, safer, and more efficient? Mostly they establish permanent boards of inquisition, add to paperwork--and give activists a license to meddle. Perhaps worst, each is a 'sword of Damocles' hanging over administrators heads, intimidating them from taking any initiative that might result in a lawsuit. ...
The 'pushout' consent decree at Franklin K. Lane HS has ensured that guidance counselors citywide will not longer hint that a 19- or 20- year old with no hope of getting a diploma should consider alternatives like the GED or Job Corps for fear of a lawsuit."
Instead, these students are left in the public schools to terrorize other students struggling to learn and graduate.
The budget of New York City's schools is "riddled with judicially created sacred cows," say Ross Sandler and David Schoenbrod, New York Law School professors who wrote a book on consent decrees, Democracy by Decree: What Happens When Courts Run Government.
"The largest one mandates the operation of special education--and the $2.7 billion-a-year special-ed budget dwarfs that of every other city department except police and social services. ...
The 1982 consent order from the Boe case controls the suspension of students from public high schools. The combined effect of state regulations and Boe is to impose the equivalent of an expensive formal trial whenever the city seeks to suspend a child from high school.
The 1996 Handberry order compels the city to provide education services, including special education, for youths between the ages of 16 and 21 years of age without a diploma who are incarcerated at Rikers Island.
The 1999 Morales consent decree compels city officials to ferret out sales of non-nutritious food like candy and soda during the school day."
All these consent decrees were created to hold schools accountable for often serious violations. But the irony is that they have made educators less accountable. How can educators be held accountable for the failures of programs they cannot change? Replace them, and others will have the same failures. And how, ask Sandler and Schoenbrod, can voters pass judgment on the Mayor, the Chancellor and others, when the courts "direct city programs without oversight or accountability?"
Principals and teachers should run schools, not judges. The courts do have a vital role in protecting the fundamental rights of all Americans, including students. But all these consent decrees burden schools with procedural requirements that take too much time from teaching and learning; they intensify a fear of being sued that is already too pervasive; and they establish inflexible and often complex rules in an environment that demands flexibility, and needs no more complexity than inherently exists.
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Sources:
"Latino Parents Decry Bilingual Programs," Samuel G. Freedman, The New York Times, July 14, 2004.
"Beyond Satire," Marc Epstein, New York Post, June 28, 2004.
"Schools in Handcuffs: How Courts (Mis)rule NYC," Ross Sandler and David Schoenbrod, March 14, 2003.
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