Justice Hugo L. Black once told me that he thought all government departments and agencies should be abolished every five or ten years. Black was a senator from Alabama for ten years and a Supreme Court justice for thirty-four, and he knew just about everything there was to know about how government works. His startling idea—and I think he was serious—was his way of dealing with the encrustations of bureaucracy.
Reading Philip K. Howard’s book, I suddenly recalled Justice Black’s remark. Not that their concerns are the same, just the sweeping character of their responses. Howard is worried about what he deems the excessively legalized American society. He begins his book as follows:
“Sometimes I wonder how it came to this,” a teacher in Wyoming told me, “where teachers no longer have authority to run the classroom and parents are afraid to go on field trips for fear of being sued.” Thomas Jefferson might have the same question. How did the land of freedom become a legal minefield? Americans tiptoe through law all day long, avoiding any acts that might offend someone or erupt into a legal claim. Legal fears constantly divert us from doing what we think is right.
Howard argues his case with horror stories. A five-year-old girl in kindergarten in St. Petersburg, Florida, goes on a tear, throwing books and pencils on the floor and ripping papers off the bulletin board—in her classroom and in the principal’s office, where she is steered. No teacher stops her, because everyone is bound by a rule against touching children. Eventually they call the police, who take the child away in handcuffs.
Absurd? Yes. But Howard says the rule against touching children, apparently adopted in fear of accusations of pedophilia, is now nearly universal. His daughter’s college roommate, teaching beginning swimmers in Harlem, had to ask the children for permission before holding them up in the water: ask every time.
Josh Kaplowitz, a college graduate in the Teach for America program, put his hand on the back of a seventh-grade student who was misbehaving to usher him out of the classroom. He was sued for $20 million—and criminally indicted. The criminal charge was eventually dropped, but the school settled the civil lawsuit by paying $90,000, Howard says.
A 2004 survey cited by Howard found that 78 percent of middle school and high school teachers have been accused by their students of lawlessness or violating their rights. Broward County, Florida, Howard says, prohibited children from running in playgrounds after settling 189 playground lawsuits in five years.
Then there is the much-lamented case of the $54 million trousers. A lawyer in Washington sued a dry cleaner for that amount for allegedly losing a pair of his pants. The case and the plaintiff were much mocked in newspaper stories. But I do not remember reading what Howard tells …
'Life Without Lawyers': An Exchange May 14, 2009