I stumbled across some pro-"tort reform" pablum from George Will - a pretty standard, "I read a book, accepted its allegations without question, and here's what it said"-type analysis typical of far too many columnists coming up on a deadline. The column opens with the usual array of anecdotes that's supposed to scream out for "reform":
Called to a Florida school that could not cope, police led the disorderly student away in handcuffs, all 40 pounds of her 5-year-old self. In a Solomonic compromise, schools in Broward County, Fla., banned running at recess. Long Beach, N.J., removed signs warning swimmers about riptides, although the oblivious tides continued. The warning label on a five-inch fishing lure with a three-pronged hook says "Harmful if swallowed"; the label on a letter opener says "Safety goggle recommended."This sounds like pretty standard tort-reform propaganda - take anecdotes from around the nation (and, in the case of "funky warning labels" actually the world), strip them of context, provide no dates, and pretend that they're typical. It's what I've characterized as Readers Digest reasoning, as it's the "biased sample" approach many of that publication's columns have historically taken to convincing its audience of some great wrong that must be righted. I'll get to the school example later, as Will references a couple of others in his next paragraph.
In a Solomonic compromise, schools in Broward County, Fla., banned running at recess - Apparently in 2005, Broward County posted signs around playground equipment stating "no running" but according to Safety Director Jerry Graziose, the Broward County official who ordered the signs, the issue was that "It's too tight around the equipment to be running."
Had Will done his homework, he would be pointing out that the rule was short-lived, and Broward County's published rules do not have anything even slightly resembling a "no running at recess" rule for any grade level. (See, e.g., the 2007-2008 Playground Handbook (PDF).1) But you know, that would involve checking the school district's website or picking up a phone and calling them - way too much work.
Long Beach, N.J., removed signs warning swimmers about riptides - This was apparently recommended by their lawyer in 2004, based upon the theory that they did not have to warn of natural dangers and that providing an inadequate warning could create liability where none otherwise existed. There's no indication I can find that there was ever any actual litigation over the adequacy or inadequacies of the warnings. I can find no indication that this is a trend, or that it got much of any notice outside of the community of pro-tort reform propagandists.
The warning label on a five-inch fishing lure with a three-pronged hook says "Harmful if swallowed"; the label on a letter opener says "Safety goggle recommended" - So what? Most likely, the guy assigned to making warning labels was sitting at a desk in China, had no clue about western law, and ended up writing a silly label - or copied one from another product because it was easy, or because he didn't understand enough English to compose his own (the author of the label didn't know enough English to pluralize "goggles"). If the suggestion is that lawyers made those labels necessary, quite the contrary - had the manufacturer consulted a lawyer, it would have been told that they were not.
The fishing lure story appears to date back to 2004, when a story about it first appeared on a pro-tort reform propaganda website. Outside of pro-tort reform websites and credulous columns like Will's, I can't actually find evidence that these labels exist. They probably did exist at one time, but they're anomalies.
No official at the Florida school would put a restraining arm around the misbehaving child lest he or she be sued, as a young member of Teach for America was, for $20 million (the school settled for $90,000), because the teacher put a hand on the back of a turbulent seventh-grader to direct him to leave the classroom. Another teacher's career was ruined by accusations arising from her having positioned a child's fingers on a flute.The first anecdote is true, dating back to 2006 - it may be that under the school's policies, no teacher could touch the child and thus nobody would do so. But that's not because of the law - it's because of rules imposed by school administrators. The first issue is legislative - when legislatures wish, they can authorize corporal punishment in schools, to the point of severe beatings, with none of the teachers or staff involved needing to be in any fear of being disciplined or sued. The second problem is that, when addressing this type of issue, school administrators tend to be lazy cowards. They implement policies that make it less likely that they will have to make decisions or deal with angry parents, then they blame fear of litigation for their own fecklessness. But one way or another, Will's again referring to a years-old example, an exceptional anecdote that in no way represents either common practice or a trend.
The "flute" story, I suspect to be fiction - or so far divorced from the facts as to amount to fiction. No details are provided, no names, no locations, so it's impossible to even attempt verification.
The remaining story, that of the Teach for America corps member who was sued for allegedly striking a student, caught my eye. Will is again going back quite a few years, to 2001. The TFA member, Joshua Kaplowitz, gives his version of events from his second grade classroom here:
The afternoon of June 13 started with the usual mixture of disorder and disrespect. This time, a boy named Raynard, a particularly difficult child, whom I had seen punch other students and throw things in the past, was repeating over and over, “I got to go to the bathroom. I need some water.” The rest of the class tittered as I told him in my sternest teacher voice that we would be having a class bathroom break once everyone was quiet and in his seat.He ended up being charged with misdemeanor assault, and the school settled the lawsuit filed over the incident. A part of me wants to sympathize with Mr. Kaplowitz, but a larger part of me can't get past the self-serving, self-justifying tone of his essay. It's what psychologists call "external locus of responsibility" - everything that goes wrong is somebody else's fault - but his bad attitude toward teaching, his colleagues, his sponsoring organization, and his students oozes out of every word.2 Could that have influenced the decision to settle?
“I got to go to the bathroom. I need some water.”
Frustrated, I led him to the classroom door with my hand on the small of his back. I nudged him into the hall and closed the door. He would probably spend the remainder of the day roaming the halls with the rest of the troublemakers at Emery, but at least he would be out of sight, so I could get the rest of my class under control. I had given up on teaching for the rest of the day; my class was slated to watch a movie with Ms. Perkins’s first-graders across the hall.
Once Raynard left, I guided my students through a characteristically raucous bathroom break and filed them into Ms. Perkins’s room, where they lapsed into a rare TV-induced calm.
After 15 minutes, the school security guard appeared at the door and beckoned for me. My stomach hit the floor, as I guessed what this meant: yet another corporal-punishment charge. But this time was different. Chaos reigned in the main entranceway as police officers swarmed into the building. Raynard’s mother, I was told, had been in school for a meeting to place her son in a class for emotionally disturbed children. Raynard had told her that I had violently shoved him in the chest out the door of my classroom, injuring his head and back. His mother had dialed 911 and summoned the cops and the fire department. The police hustled me into the principal’s office, where I sat in bewilderment and desperately denied I had hurt Raynard in any way.
What sort of witness testimony might have come up in a civil suit against Mr. Kaplowitz. Calling to the witness stand, Mr. Nick Ehrmann, a fellow TFA corps member who taught in a nearby classroom. Yes, things were difficult at the school:
We all faced incredible challenges throughout our first year - administrative turnover, lack of school discipline, and the resulting transfer of power to disruptive students who exploited this vacuum of administrative accountability. My classroom was frequently a stage for fistfights and tears. The difficulties that Josh describes were painfully real, and we all experienced them in similar degrees.Despite the difficulties, which include frequent, false accusations of corporal punishment against teachers, and which appear quite extraordinary, Mr. Ehrmann found ways to work with his students and parents. Back to Mr. Ehrmann:
So why was Room 308, just two doors down, the scene of almost constant chaos?Cross-examination, Mr. Kaplowitz?
I can’t pretend to know what happened inside those four walls. But I did witness moments that Josh does not mention in his article. I did witness Josh argue with and interrupt our principal during one of our first faculty meetings of the year. I did witness Josh berate a lone student in the hallway, his anger clearly uncontrolled. I did witness Josh place his hands upon this student’s shoulders and shove him against the wall while yelling in his face. Good intentions should not be an excuse for bad decisions.
Nick’s creativity is evidenced by the dramatic license with which he describes a hallway incident I omitted from my article - far more exciting in his retelling than in reality.That's it? "Dramatic license"? The implication that there's more to the story? But no explanation of how Mr. Ehrmann's statement is inaccurate, misleading, or mischaracterizes a flagrant violation of the school's rules against corporal punishment?
Are you beginning to sense why the case settled?
Yet even as the lawsuit dragged on and the legal cloud over me caused me to lose a job opportunity I really wanted, I refused to entertain Raynard’s mother’s offers to settle the case by my paying her $200,000 - a demand that ultimately diminished to $40,000. The school system had no such scruples; it settled the mother’s tort claim in October 2002 for $75,000 (plus $15,000 from the teachers’ union’s insurance company—chump change compared with the cost of defending the litigation).George Will says that translates into the case settling for $90K. But it sounds like, despite his scruples, Mr. Kaplowitz may have chipped in an additional $40K.
That was a long digression from Will's editorial, but it is illustrative of the problem. To hold the Kaplowitz story up as an example of a trend, or something that makes tort reform necessary, is absurd. Faced with unsympathetic facts, school administrators and teachers who were aware of Mr. Kapolowitz's difficulties with his classroom and students, and at least one known incident of inappropriate, angry physical contact with a student, it wasn't a good case to take to trial. And like every one of the stories in Will's parade of horribles, it occurred many years ago.
The sad part is, this is what you routinely get from tort reform advocates, and those like Will who choose to repeat their claims without care, thought, or investigation. If there's such a compelling case to be made for tort reform, why is it so hard to find a "tort reform advocate" who will approach the subject with so much as a whit of honesty?3
1. Note to Broward County: "Helmit" is not an acceptable alternative spelling of "helmet".
2. The biggest problems Mr. Kaplowitz faced in the classroom appear to be that he was completely aware of what teaching actually involves, had no classroom management skills, and was placed in a "sink or swim" environment. His story's old, but it probably merits a more thorough and sympathetic examination in a future post.
3. Will's editorial continues with more "horribles", some of which are, well, judge for yourself:
In Indiana, a boy did what boys do: He went down a slide headfirst -- and broke his femur. The school district was sued for inadequate supervision. Because of fears of such liabilities, playgrounds all over America have been stripped of the equipment that made them fun.So... how exactly can you break your leg by going down a slide head-first? Do you suspect that, if the story has any relation to the truth, Will's again leaving out some crucial facts and context? And where, exactly, can I find school playgrounds where they've removed the slides?