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Join Common Good’s online forum: Risk and Legal Fear in Schools

We entrust our children to teachers and principals with the expectation that they will be both educated and protected from harm. When, inevitably, incidents happen—especially when those incidents are tragic and well-publicized—communities often press for stricter rules and procedures. But are all of the rules and procedures wise? Do they truly make schools and children safer and better? One school, for example, suspended a six-year-old for "pointing his finger like a gun and saying 'pow,'" while another suspended two boys for playing cops and robbers.

To shield themselves from legal exposure, schools have attempted to eliminate every conceivable risk—no tire swings, no dodgeball, no monkey bars. Field trips require complex liability waivers. Every activity requires paperwork—documentation, permissions, waivers. Our schools must be safe, but are some of the steps taken to protect against every possible lawsuit and risk doing more harm than good?

Common Good is hosting an online forum to address this question, with experts on education, parenting, and the law, including:

  • Lenore Skenazy, author and founder of Free Range Kids
  • Frederick Hess, Director of Education Policy Studies at the American Enterprise Institute
  • Nancy McDermott, writer and former chair of the advisory board for Park Slope Parents
  • Walter Olson, senior fellow at the Cato Institute
  • Megan Rosker, teacher and founder of Let Children Play

These experts have already started talking about how to address risk and legal fear in schools.

Add your ideas to the conversation here.

Find out what our panelists think and contribute your comments and questions below.

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Costs much greater than benefits

A tragic train accident in 2008, caused by a distracted engineer, led to the deaths of 25 people. In response, as George Will writes in the Washington Post, Congress approved a requirement that train companies install a system to protect against human error. Sounds good, but there's a catch--the new system is cripplingly expensive:

So far, railroads have spent more than $2.7 billion on a system estimated to cost $10 billion to $14 billion — plus perhaps $1 billion in annual maintenance. PTC has not been installed, partly because it is not sufficiently developed. CSX Corp., which includes railroads among its assets, says the railroad industry is the nation’s most capital-intensive — and the $11 billion combined capital investments of all U.S. railroads in 2010 were approximately equal to the cost of PTC. The 2015 mandate will not be met.

The Federal Railroad Administration estimates that were PTC to be installed on thousands of locomotives and tens of thousands of miles of track, it would prevent perhaps 2 percent of the approximately 2,000 collisions and derailments, preventing seven deaths and 22 injuries annually. But because a dollar spent on X cannot be spent on Y, the PTC mandate must mean the sacrifice of other investments crucial to railroad safety (and efficiency).

As Philip Howard has written, "Every public dollar involves a moral choice." Requiring railroads to spend billions on a technology with limited usefulness means they have billions less to spend on more effective safety measures.

Read the rest of George Will's piece here.

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Kindergartener may get detention for lego gun the size of a match

By Lenore Skenazy

It's like there's a News Goose out there laying golden eggs of wacky web fodder.  And the Goose's name? ZERO TOLERANCE.

All it needs is a steady diet of school administrators with Lego-size minds. And apparently there are plenty!

So here's the story. This time the kid is 6. The place is Massachusetts. He plays with this toy's toy on the bus ride to school and another kid yells about the "gun." Next thing you know, the school sends home a letter to reassure parents that THERE WAS NO GUN ON THE BUS. (Even though they reacted as if THERE WAS A GUN ON THE BUS.)

And here's a picture I cribbed from WCVB Boston of the terrifying instrument of death:

notagun


The boy who yelled about the gun on the bus was also made to apologize.

There is one silver (goose?) lining: The school committee is going to discuss its Zero Tolerance laws when it meets next month. But God only knows how many children will not be scarred by toys that are not guns by then.

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

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Save the drowning man? But we’re not certified yet!

By Lenore Skenazy

I love the Scouts (got two of my own) and appreciate the old motto: Be Prepared.

BUT -- there's preparation that's safe and sane, and then there's super-stratospheric safety that goes so beyond what's necessary that the end result is red tape. And how safe is it to be wrapped up in tape?

Guess. (This is a letter I got over at Free-Range Kids last week):

Dear Lenore,

Last year our daughter decided that she wanted to join the Girl Scouts.  My wife signed up to be an assistant.  Over the next few months we discovered what a strange and dysfunctional organization the Girl Scouts had become. 

You see, in order to have a camp fire on the Girl Scout campgrounds, you need to have someone who is “fire certified.”  My wife was all eager to earn this certification so that the girls could have a good time.  So she had to attend a two-hour class where she learned all about fire safety and how to properly build a campfire. 

You’d think that would enough, but you would be wrong.  She then had to attend another two-hour class on a Saturday.  Certified yet?  Of course not.  Now she had to attend a weekend camping trip where the parents could practice their skills and finally become certified.

This is where it gets absurd.  A bunch of parents go off on a camping trip where they are presented with rules that treat them as though they are children.  They still can’t have a camp fire! And if they have to go to the bathroom, they need to go with a buddy. Yes, even if it’s the middle of the night, you’ve got to wake somebody up. (Sanity prevailed and they all agreed to break this rule.)

Then, as they were sitting in a small group and talking, my wife hears a muffled cry.  After a minute or two she figures out that someone is crying for help.  The group rushes down to the lake where they can see that an elderly man has fallen out of his fishing boat and is unable to climb back in.  He's hanging onto the side of his boat, his legs submerged in the cold lake water.  He is minutes away from drowning.

When my wife and her group got to the lake, they encountered another group of moms who had arrived first.  Were they rushing out to save this man?  Of course not.  They were debating amongst themselves over who was “water certified” to help him!

Water certified?  Fortunately, they finally threw caution to the wind and my wife and some other parents got a boat out and rescued the man.  When the ambulance arrived, the EMTs estimated that he had been about five minutes' away from not being able to hold on any longer.  It’s so sad to me that these women were more worried about who was certified to help this man, than they the fact he was minutes away from drowning.

But at least my wife is now certified to start a campfire.  It only took two classes and a weekend trip. --  Brad, the Dad

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

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Second-grader suspended for pretending pencil is a gun

By Lenore Skenazy

To understand our undoing as a nation all you need to do is examine a single form filled out by a second grade teacher on May 3, 2013: The Suffolk Public Schools Discliplinary Referral Notice to Parents/Guardians:

On that date, under the section "DESCRIPTION OF INCIDENT," the teacher wrote, "Christopher pointed his pencil at another student as if it was a gun and made shooting sounds. I told him to stop and he did."

Now, you might THINK that that final sentence meant she told him to stop and he did. As in, "Okay kids, now let's get back to our math lesson." But in fact, the next part of the form is labeled, "THIS SECTION MUST BE FILLED OUT" and so it was, detailing all the post-pencil-pointing "ACTION TAKEN." Apparently the admins:

  1. Held a conference with the student.
  2. Met with his mother.

    And

  3. Suspended the boy for two days.

That'll teach him to point a pencil!

Of course, this was all the result of Zero Tolerance, the school rules that are often interpreted with such bizarre literalness it's as if the principals have willed themselves into a kind of administrative autism. In this case, the school's policy is against "weapons or anything that resembles a weapon." If there's any difference between a pencil and a gun, well, the principal couldn't see it.

But what's even more disturbing -- and that's saying a lot -- is that the administration actually assumed its students were just as delusional.
Bethanne Bradshaw, a spokesperson for Suffolk Public Schools, told a Fox reporter that, when accompanied by verbal "gun noises" (or at least the universal stand-in for real gun noise -- the word, "Bang!"), "Some children would consider it threatening,  who are scared about shootings in schools or shootings in the community....They think about drive-by shootings and murders."

They do? Then here's a tip: Instead of reinforcing their hysteria by reacting as if they're in real danger, try saying something soothing instead, like, "Look, hon, it's just a pencil." (Or something satisfying like, "FOR GOD'S SAKE, IT'S JUST A PENCIL!")

But since it seems more likely that the kids were not ACTUALLY scared of being shot by a #2 Ticonderoga, then let's retire the, "Oh, the poor, rattled children!" rationale. If no one feels threatened, why overreact? And why teach kids to overreact, too?

Because that's what we've been trained to do. Safetyland -- excuse me, America -- is so obsessed with safety that we demand it even when we're already extremely safe. We want super-safety -- the kind you get when you make middle-aged moms take off their shoes before getting to the gate. Yes, we are 99.99999% sure you're not a shoe bomber, but just in case.

At school: Yes, we are 99.999999999999999999999% sure your pencil is not a gun, but just in case.

And in the courts: Yes, we are 99.999999999999999999999999999999999999999% convinced that a simple, "Put down that pencil" would have been the appropriate response. Case adjourned.

Until that sane day, we must remain very afraid.

Of hysteria in the schools.

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

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Make It Simple

A crisis of complexity is wreaking havoc on business, government and finance--and there is a pressing need to simplify society. That's the central message of the new book Simple, written by Alan Siegel and Irene Etzkorn.

"Simple" book cover

In 1980, the authors point out, the typical credit card contract was about a page and a half. Now it's 31 pages. Other practical examples of how complexity and lack of clarity waste money and time abound:

  • One study found that landline phone customers spent more than $2 billion a year for unauthorized charges largely because the bills were so confusing most customers didn't even know they were being overcharged.
  • Because of the complexity of insurance contracts, one survey found, as many as one-half of policyholders are misinformed about their coverage.

  • The U.S. Constitution, written in the 1790s and the basis of the entire American government, is 0.1 percent of the length of the current income tax code, which runs 14,000 pages. Figuring out the ins and outs of the tax code costs American taxpayers billions.

In a world where there are over 425,000 iPhone apps, 241 selections on the Cheesecake Factory's dinner menu, and 454 lotions at Sephora, complexity is an issue that touches every aspect of modern life.

"One of the great misconceptions  about the complexity," writes Siegel and Irene, "is the belief that the people who made things so complicated--the bureaucrats, the technocrats, the lawyers--are the only ones who can get us out of this mess." They continue: "It's time for us to demand--of, if in leadership positions, to develop and put into effect--new ways of borrowing money, of paying taxes, of accessing government, of purchasing products, of communicating." This can be done, they argue, by transforming the way we do business and reinvent everyday practices and processes plagued by complexity.

Philip K. Howard, Common Good chair, recently hosted an event in New York featuring Siegel and Etzhorn and a discussion of the book. Howard pointed out that simplifying government, law and regulation is the central mission of Common Good's agenda--which is key to reinvigorating America's economy and reducing federal budget deficits.

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Health Court Reform Proposal Gains Key Support

Common Good distributed the following press release earlier today:

New York, NY – May 1, 2013 – Momentum for the creation of specialized health courts continues to build, as the nation faces rising health care costs without addressing the avoidable waste caused by unreliable medical justice, which fuels billions of dollars in unnecessary “defensive medicine” annually. Two new proposals from widely respected groups add to the growing calls for health courts. These proposals come in the wake of the first U.S. presidential race in which both major-party candidates endorsed health courts.

  • The Brookings Institution issued on April 29th a report titled “Bending the Curve: Person-Centered Health Care Reform: A Framework for Improving Care and Slowing Health Care Cost Growth.” The authors of the report, which was funded by the Robert Wood Johnson Foundation and the Irene Diamond Fund, include some of the most distinguished names in health care and budget management from both major political parties; among them are two former Secretaries of Health and Human Services, two former Directors of the Office of Management and Budget, a former Senate Majority Leader and a former Chairman of the Council of Economic Advisors.

    In a section titled “Encourage States to Develop More Efficient Medical Liability Systems”, the report states: “Since most tort law and related regulations are under state jurisdiction, reforms to foster a more effective medical liability system will likely require state action. To encourage state liability reform, we recommend that the federal government provide states with technical assistance and grant funding to test innovative reform models, and to include such liability reforms in state-based reform initiatives. These state-level reforms should focus on well-supported models such as:

    • ‘Safe harbor’ or ‘rebuttable presumption’ laws that establish legal protections for providers who achieve high quality and safety performance using valid measures.
    • Reforms that modify the existing judicial process for resolving tort claims with lower-cost and more predictable alternatives. These include a ‘patient compensation system’ that enables most claims to be settled through a standardized administrative process with predictable awards based on the adverse outcome involved, and Health Courts in which independent experts with clinical expertise would adjudicate liability claims.”
  • A new deficit-reduction plan was proposed on April 19th by Erskine Bowles and Alan Simpson, who chaired the National Commission on Fiscal Responsibility and Reform and now chair the Moment of Truth Project. The plan – “A Bipartisan Path Forward to Securing America’s Future” – states, in a section titled “Enact Medicare Malpractice Reform ($20 billion through 2023)”, “The current medical malpractice system adds substantially to the cost of health care, including by increasing the cost of defensive medicine...,” and recommends implementing eight reforms, including “applying a health court model to malpractice claims in the Federal Claims Court.”

These calls for health courts are the latest in a series of bipartisan calls for their implementation. In last year’s presidential race, Republican candidate Mitt Romney advocated the creation of specialized health courts in an op-ed in USA Today. President Obama had previously endorsed the creation of special health courts in a letter to Congressional leaders released by The White House on March 2, 2010.

The National Commission on Fiscal Responsibility and Reform endorsed the creation of specialized health courts, and three other bipartisan commissions have endorsed health courts: the Committee for a Responsible Federal Budget (at the New America Foundation); the Debt Reduction Task Force of the Bipartisan Policy Center; and Esquire magazine’s Commission to Balance the Federal Budget.

The concept of health courts has been championed by Common Good – the nonpartisan government reform coalition – working in conjunction with experts at the Harvard School of Public Health. Under Common Good’s model, health courts would have judges dedicated full-time to resolving health care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at restoring reliability to medical justice. Special courts have long been used in American justice in areas of complexity where reliability requires judges, who can make consistent rulings from case to case, rather than juries, which have no authority to set predictable precedents. In the early republic, America had special admiralty courts. Today, there are special courts for tax disputes, family law, workers’ comp, vaccine liability and a wide range of other specialized areas.

The public sees the need for reliable health care justice – and for health courts in particular. A nationwide poll conducted in 2012 by Clarus Research Group revealed that 66 percent of voters support the idea of creating health courts to decide medical claims. The health court concept has also been endorsed by virtually every legitimate health care constituency, including medical societies, patient safety organizations and consumer groups like AARP.

“Except for opposition from the trial lawyers who benefit from the current system of unreliable justice, health courts would be implemented and the public would avoid spending billions of dollars unnecessarily,” said Philip K. Howard, Founder and Chair of Common Good. “The only question now is: How much longer does the public want to pay for that unnecessary waste?”

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Should Teens Not Cross the Street Alone? $90 Million Lawsuit on the Line

By Lenore Skenazy

A 13-year-old gets hit by a car while crossing the street to get to her school bus stop. She dies. Who is to blame?

crosswalk

Believe it or not, the school board--to the tune of $90 million. That was the decision of a Prince George County, MD, jury. What did the board do wrong? According to this story in U.S. News:

“The school board was negligent,” said John Costello, the lawyer for the family. “They had adopted a policy to provide for safe transportation. The policy was they were going to pick up Ashley on her own side of the street. They never did. They forced her to cross the street. She got killed crossing the street.”

“If she didn’t have to cross the street …  she’d be graduating this year,” her mother said. “She’d be going to prom this year.”

So if the school board was $90 million wrong for not putting a bus stop on the girl’s side of the street, does that mean every school bus should go up and then back down each street, to make sure no child ever has to cross? Otherwise are they all “negligent”?

Of course not. The jury is treating a tragic and rare event as if it were predictable or even common.  But it’s not. We know it’s not. Milllions of children around the world cross the street every day and , thank God, the vast majority of them are safe.

But when school boards start worrying that $90 million says they better not let any student cross the street EVER, well, let’s see what happens next. Will there be no more school buses, because the liability is too great? Or maybe we’ll see twice the number of daily buses--one for each side of the street? Or--here’s what I’m most afraid of--will students up to and including age 13 be required to have an adult accompany them when they cross the street?

What a simple and cheap solution that would be for the school districts and bus companies. All it would cost is a child’s autonomy and an adult’s ability to get to work on time. Already there are districts that forbid kids to ride their bikes to school, or walk home alone until a certain age, even if the parents and child both believe the kid is ready. The reason for these helicopter rules is liability. Better not to let kids do anything on their own than to face a grief-crazed jury.

It’s natural to want to blame someone when a child dies. But here’s a novel thought: Instead of blaming the very notion of expecting a 13-year-old to cross a street…why not blame the driver of the car that hit her?

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

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Unsafe in any crib?

By Lenore Skenazy

Maybe no one should ever make – or buy, or use – a crib again. In 2010, the federal government recalled about 2 million cribs. This week, the Consumer Product Safety Commission warned consumers to stop using 73,000 more – specifically, drop-side cribs made by a company called PT Domusindo Perdana and sold at J.C. Penney’s.

Were these cribs spontaneously exploding? Whittled from endangered Baobab trees? Rolling over?

In fact, the Commission had received reports of three “incidents” wherein the drop side rails “malfunctioned or detached.” These resulted in how many injuries?

Zero.

Now, many folks might consider a product with a negligible number of complaints and a spotless injury record to be “safe.” After all, if you’re a company and you make 73,000 of a rather big-ticket item and you know it’s headed for the uber-scrutinized child market, you probably tested it for safety more than a few times yourself.

But the CPSC is tasked to look for danger. And if to a hammer everything looks like a nail, to the danger-seeking CPSC every crib seems to look like a Corvair.

Nonetheless, there’s a difference between protecting the public and obsessing over minute dangers. When zero injuries is not safe enough, what is?

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

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Ban dodgeball—it’s too violent

By Lenore Skenazy

In the first place God made idiots. This was for practice. Then he made School Boards. - Mark Twain

 

Heroin. Grenades. Wild jackals. Dodgeball.

None of these are allowed in the Windham, N.H. public schools.

Well, at least I assume the first three aren’t allowed. But dodgeball is definitely out, ever since last week, when the local school board voted 4 to 1 to ban dodgeball and nine other “human target” games (does that include tag?) from the curriculum.

The vote came after a parent complained of his child being bullied during the game. Predictably, that led to the formation of a committee to study the issue. And also perhaps predictably, given our outlandish level of anxiety when it comes to kids, the conclusion was that the games are too potentially traumatizing. Out they went.

But as a clearheaded student explained to the local paper, in dodgeball, the object is to win, and that involves hitting kids will balls. That’s not bullying, that’s playing.

And as the sole board member who voted against the ban also noted:

"We have rules that are set in place to deal with bullying," he said. "We don't need to ban an entire round of games just to enforce those rules."

And also let us note that the Windham students were not even playing with the rather intimidating red bouncy balls of days past. Now the balls are foam.

Foam!

Evidently even that's too much of a menace for our fragile kids to handle.

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

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