Who's Who in Public Schools

In order to understand how legal principles apply to a high-school educational setting, we need to understand the precise nature of the teacher-student relationship, and the respective roles thereof. Civil law, particularly tort and contract, is essentially about the rights, duties, obligations and remedies of individual and corporate citizens as against other individual and corporate citizens, whether by mutual agreement (as in contract) or implication (as in tort). By contrast, criminal law and other statutory schemes involve the rights and obligations of citizens as against the state (i.e., the government, of both the U.S. and the several states) and vice-versa.

Even though the public schools are government entities, and school officials including teachers are therefore agents of the state, they do not represent or carry government authority in the same sense that police departments and regulatory agencies do, at least not in terms of the teacher-student relationship and the role of the student within the system. The government does control and oversee things like teacher certification, employment and collective bargaining agreements with the teachers and administrators and their respective unions, standardized testing, and to some degree, curriculum and assessment. In other words, the state has authority over the schools and the teachers, but the teachers do not seem to have that same authority as agents of the state over the students. Where parents can demand and receive things for their children like higher grades, reduced or abrogated punishment for misconduct, academic program changes, places on athletic or cheerleading teams, and the like; where teachers can essentially be compelled to change or ignore their own rules and standards in individual cases, they cannot be said to have inherent governmental authority.

Where is the disconnect? Why does the schools' authority as derived from the state and local governments that create them not extend to the teacher-student relationship? If adolescents are subject to the criminal laws and to the authority of police officers, why are they not subject to school rules, academic standards, and the authority of teachers in the same way? The principal reason, as suggested above, is that parents do not see teachers as authority figures in the same sense as police officers, or even workers at the Department of Motor Vehicles. While I don't mean to suggest that the schools do or should have the same function as the police, they both provide essential public services, and more importantly they are both charged with seeing to it that citizens behave in a certain way. The police must ensure that citizens obey the law (although it is the citizens' responsibility to know the law); teachers must ensure that students meet academic standards. We don't want to empower citizens to take the penal law into their own hands, or determine for themselves what the law is; why, then, do we want to empower students and parents to take academic and disciplinary standards into their own hands?

The problem, as I see it, is a fundamental misunderstanding of two critical elements:

(1.) What is the nature of the "service" which a teacher, as a public servant, provides?
(2.) What are the duties and obligations of students with respect to their teachers?

Without launching into a lengthy philosophical examination of precisely what it means to "teach," the service which a teacher provides is, or at least it should be, to provide students with instruction in the knowledge and skills which they will need to be successful in higher education and in subsequent employment. This obviously cannot occur without the participation of the students, and there needs to be a means of measuring not only whether or not the instruction is adequate, but if the students are responding and performing appropriately. The former is for the state and local educational authorities to determine; the latter is for the teachers to determine. At least, that is how it should be.

However, in the current environment the parents and students have essentially taken it upon themselves to determine both. The stereotypical paradigm has become: Every parent thinks his child is a straight-A student, and if some teacher does not give her an A, or if the child doesn't "like" that class, then that teacher must be doing something wrong and the school had darned well better do something about it. Which in most cases, it does.

In what other context do we endow private citizens with such authority to not only challenge but essentially determine for themselves the rules, regulations and determinations of a government entity? The courts have certainly not found that individual parents and students have any such authority; see, e.g., Blau v. Ft. Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005) ("While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child."), citing Leebaert v. Harrington, 332 F.3d 134, 142 (2d Cir. 2003) (The fundamental right to control the upbringing and education of one's child does not include "the right to tell public schools what to teach or what not to teach him or her."); Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 533 (1st Cir. 1995) (parents' fundamental right to control a child's education does not include the right to control curriculum at their child's public school). Why do the schools give it to them anyway?

The point is that teachers cannot effectively provide the public service for which they are employed unless they can exercise the public authority with which they are vested as agents of the state. In taking away that authority, parents, administrators and educrats have essentially altered the fundamental nature of the "service" provided by teachers. I don't think I need to repeat, again, what that is.

If teachers are not considered authority figures in the public sense, then the relationship between the teacher and student (and, peripherally, the parent on one side and school administration on the other) must be examined in a private/civil law context. The most practical analogue seems to be the employer-employee relationship. Since the ultimate purpose of schooling is to prepare students for an adult life of employment (and/or entrepreneurship), it makes the most sense to place the student in the role of employee. If I'm the teacher, I'm the boss; I make the rules, you the student work for me, and if you want to be "paid" (i.e., receive a high or passing grade), you need to show up for work on time, do the job, follow the rules and procedures, produce the product, do it well, and if you're not doing it well take steps to improve. I as the teacher have the authority and expertise to evaluate your work, yet I am also subject to the laws and regulations governing my business (i.e., academic standards handed down by the state and by school administrators).

An education is a commodity, and a very valuable one at that, more valuable even than a salary (a salary can be taken away; an education, once you receive it, cannot), but like any other commodity of any value it must be earned, worked for or exchanged for something else of value. If I'm the teacher, I have something you need, in the form of the knowledge and expertise to master the subject and the authority to evaluate your performance in the form of a grade. I have an obligation to provide you with this valuable commodity, as well as the tools and instruction with which you can obtain it. Yet you, the student, have an obligation to me as well; if I owe you this commodity, you owe me your best effort and best behavior. In this way it is much like a contractual arrangement; the student's obligation to do his work and follow the rules is consideration in exchange for the teacher's services.

The prevailing paradigm, however, is nothing like this. In the eyes of many parents, they and their children are the employers, the teachers are the employees, the parents' tax dollars fully comprise their duties and obligations (i.e., consideration), thus the teacher has no authority and is entirely subject to the parents' and children's whims and demands. Alternatively, and somewhat more disturbingly, the scenario is rather like that of a bailment; i.e., the parent is the customer, the teacher is the businessperson/employee, and the student is the commodity. It is analogous to the relationship of a car owner and a mechanic; the parent is the owner, I'm the mechanic, and the student is the car.

Consider this scenario in the context of what I discussed previously about expectations. If a customer brings his car in for service or repairs, and the mechanic discovers a problem of which the owner was not aware, or if the car develops a new problem after being serviced, it's certainly not the car's fault. Even if the customer does not maintain the engine properly or drives the vehicle harshly, he will still blame the mechanic if anything goes wrong. The customer typically doesn't know or understand much about automotive repair or the function of the internal-combustion engine, yet while the customer expects the mechanic to have that expertise, he will always be suspicious of the mechanic's diagnosis.

Whether auto mechanics are fundamentally as trustworthy as teachers, or more or less so, is not the point. While it is horrifying to think of children, particularly those of high school age, as property or as commodities, this is how many parents view their children in the context of their relationships with teachers and their role in school. While it may make some degree of sense for very young children in an elementary school setting, it makes no sense at all on the high school level. We cannot keep telling teenagers to "be themselves" and assert their independence and autonomy as human beings, then act as if they have no role in the determination of their own academic success (or failure). Adolescents, while not fully-developed psychologically, should nonetheless be mature enough to make reasonable, intelligent choices, and if they're not then they must learn, by being held accountable when their choices are wrong.

My parents, who grew up in the '40s, respected the authority of the schools and my teachers. The burden was on me to do well in school. Today's parents, who grew up in the '60s and '70s, learned through the dual trauma of Vietnam and Watergate to disrespect and distrust government authority and embrace self-determination (it wasn't called the "Me Generation" for nothing). It will take a very courageous stand by school administrators and teachers as a whole, or perhaps even in one place, to put an end to the self-esteem movement in schools and take back the authority which they need to truly and effectively educate our youth.