Professor Bernard James, "Restorative Justice Liability: School Discipline Reform and Right to Safe Schools" -- University of Memphis Law Review (forthcoming)

Professor Bernard James's article, "Restorative Justice Liability: School Discipline Reform and Right to Safe Schools" (SSRN), will be published in the University of Memphis Law Review. The article considers the relationship between school discipline reform and student rights.

Abstract of "Restorative Justice Liability: School Discipline Reform and Right to Safe Schools"

This article considers the relationship between school discipline reform and student rights. Traditionally student claims against school officials for injuries sustained on campus confront a tangible constraint in the form of a presumption that second-guessing education policy sits uncomfortably outside the judicial role. Under the current wave of school discipline reform, judicial review previously considered perfunctory is becoming more rigorous. Courts are finding educators liable in student injury cases, disregarding judicial deference and traditional immunities. In this changing legal environment, educators unwittingly find themselves holding the sharp end of the stick as they take up the task of revising school discipline policies around elements of restorative justice. Court decisions over the last decade suggest that school-based restorative justice policies take on variations of "excessive tolerance," in which discipline outcomes function under the weight of an expectation to keep students in school, emphasizing forbearance and minimal sanctions. A review of cases, studies, and scholarship connects school-based restorative justice outcomes to the most important evidence of the changing judicial attitude: criminal and civil liability against educators who fail to protect students. This article argues that school disciplinary policies characterized by (a) minimal sanction severity for serious offences, (b) apathy to the probability of recurrence, and (c) disinterest for collaborative assessments, are associated with an increased risk of campus disorder and violence for which educators are culpable.