On December 12, Adam Goldstein, writing for the Huffington Post, took a stab at the judiciary’s belief that it should give deference to the educational decisions of school administrators. (Read article here) While I fully support his belief that when administrators make mistakes, these mistakes should not be overlooked by the courts, I find his take on what judicial deference means to be misleading and his belief that such deference should stop to be flawed.

While it is certainly true that one definition for deference is submission, this is not its only definition, nor is it the one the court intends through the use of this word. Deference has a secondary definition of giving respect to another person. It is this secondary definition which best seems to fit how courts have applied deference to school administrative decision.

Goldstein states in his article

it is time to end this bizarre practice that assumes judges who are competent to decide whether a man lives of dies for his crimes are incompetent to decide whether a school administrator crossed a line in a strip search.

I have never read a case where a judge implied that they were incompetent to decide an education issue. Rather, when judges use the term “deference,” they seem to be using it to state that the decision made was a sound one based on the administrator’s training and experience and, therefore, that the judge is not going to overrule it.

Goldstein also states that his reason for writing this article was

because schools, including colleges, and graduate programs, are still whining for ‘substantial deference’ for their wrongdoing, and judges are often far too often willing to give it to them.

At this point in his article, it would have served Goldstein well to point to examples of decisions where judges too willingly (and wrongfully) gave school administrators substantial deference but he disappointingly leaves this statement as a bald accusation, bereft of any support.

Instead, Goldstein goes on to cite four cases where administrators have made egregious errors in judgment, cases such as the Penn State/Sandusky debacle where administrative complacency appears to have allowed a monster to continue to victimize young boys. While the administrators in the cases mentioned certainly do not deserve deference for their decisions, neither have they been granted any. Of the four incidents mentioned by Goldstein, three have not been to trial, and the fourth decision, where a court supported a school‘s decision to discipline a cheerleader for not cheering for a basketball player who sexually assaulted her, did not even mention deference for school administrator decisions.

What Goldstein also fails to mention is that education is not the only area of the law where judges believe in respecting the professional judgment of the individuals entrusted with running our public institutions. Another well documented area of administrative deference is for prison administrators. Both of these facilities involve the housing of unique individuals possessing unique concerns. Despite Mr. Goldstein’s tirade, the fact is that these individuals’ decisions deserve our respect. Where they are flawed though, respect should not translate into the other type of deference, “a yielding of judgement.”

Gregory Branch is a teacher, former school administrator, and attorney. His practice focuses on assisting families of special education children secure their educational rights. He can be reached at gregorybranch@edrightsadvocate.com.