Law, Trends in

The typical publication in school law, whether an article or a book, examines one or more topics for a relatively contemporaneous period or without a comprehensive and systematic trends analysis. The purpose of this entry is to help fill the gap by providing a compact longitudinal overview of the trends in school law. Inasmuch as the expansive school law literature provides the microlevel textual details, the focus of this overview will be on two key dimensions, or variables—volume and outcomes—of the education litigation.

The overall trend for these two dimensions, which is different from a prevailing perception among many educators and other segments of the public, is that court decisions in the context of K–12 education are on a gradual downswing rather than an explosive upswing and that the school defendants have won the majority of the published, final decisions, even in the turbulent 1970s and continuing to the present time.

Volume refers here to the frequency of published case law, which is the only available database for such overall purposes. Contrary to a common perception of a continuing “explosion” in education litigation, various empirical analyses have reached the opposite conclusion—the overall volume of published case law reached a high point in the 1970s and has gradually but rather steadily decreased since then. The major exception within this total downward trend is the special education segment, which has risen relatively dramatically since the end of the 1970s in terms of both published hearing/review officer and published court decisions. Yet, contrary to Richard Arum's 2003 characterization of the courts' hostility toward school authority, his own data show a steady and steep decline in the frequency of student discipline cases in regular education since the 1970s.

Outcomes refers here to who won these published decisions—the plaintiff or suing party or the defendant school authority. Again contrary to the common conception, the school authorities won the majority of the decisions overall in both the 1970s and the more modern era. Although the proverbial pendulum from the earlier to the later period did not swing for the overall published case law, it did do so for student cases. More specifically, there was a statistically significant shift in the outcomes of student-initiated court decisions from the mid-1970s to the mid-1990s. Within the student-initiated category, however, the outcomes of the special education decisions, both at the hearing/review officer as well as the court level, remained relatively stable, modestly favoring school districts, at least for the time period 1989 to 2000.