GOV. Mary Fallin has signed a bill to deter frivolous lawsuits. Unfortunately, its protections apply only to very narrowly tailored circumstances.
Under House Bill 2160, if a school district sues a student or the child's parents and loses, the district will be required to pay the family's court costs. This law shouldn't be necessary, but recent events suggest otherwise.
After lawmakers approved scholarships for some students with special needs to attend private schools, the Jenks and Union school districts sued. A legal challenge was expected; that districts would sue parents of scholarship recipients was not.
Because the scholarship amounts are capped at 97.5 percent of the student's per-pupil cost, the law actually increases total per-pupil funding at schools losing students to private competitors thanks to the remaining 2.5 percent. When private tuition is less than the maximum award, the total difference stays with public schools. In fiscal year 2012, students with special needs qualified for $1,095,805 in scholarships; only $969,166 was required, leaving an extra $126,639 with public schools.
Basically, Jenks and Union claimed damages when the scholarship law actually improved their fiscal bottom lines and sued parents instead of the state. The state Supreme Court tossed the lawsuit, ruling the districts didn't have standing to sue and declaring “the parents are clearly not the proper parties” to be sued. In other words, Jenks and Union had no reason to sue and sued the wrong people. You don't get much more frivolous than that. The schools' actions were widely seen as designed to financially harm families who already face enormous challenges. HB 2160 may protect those families from similar abuses in the future.
However, out-of-control school administrators aren't the sole source of frivolous lawsuits. If a “loser pays” law is good policy in this instance, it should be good policy in similar cases involving undeniably frivolous litigation. A “loser pays” law, particularly if it includes mandatory sanctions for participating attorneys, could benefit all — including public schools routinely facing these lawsuits.
Carrollton (Texas) Creekview High had to defend a Title IX lawsuit filed by the mother of a former cheerleader who didn't make the current year's squad. The Fifth Circuit Court of Appeals not only knocked that one down, but declared the lawsuit “a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.”
A 2010 report by California Citizens Against Lawsuit Abuse found 12 California school districts spent $98.7 million fighting litigation in just three fiscal years. The group said that sum would cover 1,530 teachers' salaries.
Outside education, the National Federation of Independent Business says small businesses are often targeted by sketchy lawsuits because settlement is usually cheaper than a courtroom battle. NFIB notes small-business settlements are often less than $5,000, but those smaller payoffs total $35.6 billion annually.
Not all lawsuits are frivolous. Not every person who files an unsuccessful lawsuit is a huckster. Vague laws often require litigation to obtain legal clarity. But in cases where the courts find a lawsuit is clearly without merit, a carefully designed “loser pays” law could cause plaintiffs and their lawyers to think twice before pursuing them.
Parents of children with special needs shouldn't face harassment lawsuits. Neither should any other Oklahoman.