In the official trailer for “The Bounty Hunter,” the classic 1950s American western film, a narrator introduces the protagonist, Jim Kipp, as a “manhunter” — “neither outlaw nor officer of the law, [yet] more feared than either” — who pursues ne’er-do-wells who have escaped the clutches of traditional law enforcement. The film burnishes the mythology of the Western frontier as one replete with vigilante cowboys and a rough-hewn style of justice. Judging from recent events, you’d think some of our elected leaders were still living out their Wild West fantasies, and that the typical American educator were a renegade scofflaw who must, come hell or high water, be brought to justice.
Increasingly, lawmakers are seeking to subject educators to fines, and even jail time, for conduct they find objectionable. In February, Texas Gov. Greg Abbott issued a directive making it clear that the state’s teachers and other licensed school professionals will face prosecution for failing to report to child protection authorities any adult (including parents) whom they suspect to be assisting transgender students with their gender transition. That same month, adding fuel to a resurgence in school “book bans” (see Kim, 2022), Iowa Republicans introduced a bill that makes it an aggravated misdemeanor (or a felony, for a repeat offender) for a public school librarian to spread “material the person knows or reasonably should know, is obscene or harmful to minors.”
And that’s just on the criminal side. Numerous bills now pending in state legislatures would make it easier for members of the public to sue educators in civil court for speaking to students about topics lawmakers want to keep away from children — if they win, they can receive monetary damages (“bounties,” if you will). For example, a Florida bill (dubbed the “Don’t Say Gay” bill), passed in March, allows parents to sue schools for engaging students in conversation or lessons related to sexual orientation or gender identity. In Oklahoma, a legislator has introduced a bill allowing a parent to sue teachers and public schools when they “promote positions in opposition to closely held religious beliefs of the student.” The bill sets educator fines at “a minimum of $10,000, per incident, per individual.” A similar bill would allow parents to sue Oklahoma teachers for “at least $10,000” for teaching “critical race theory.” Additional “bounty-hunter” bills are pending in other states.
Third-party legal enforcement: Recent and historical precedent
These bills are clearly modeled after S.B. 8, a Texas anti-abortion law, which permits citizens to sue (and receive “not less than $10,000” per abortion) those who perform or induce an abortion or “aid and abet” a woman in obtaining one.
Since long before S.B. 8, however, laws that enlist private citizens to enforce governmental policies have been part of the American legal landscape. Since the 18th century, “sureties” (i.e., bail bondspeople and their agents) have been empowered to take extraordinary measures — including breaking into and entering individuals’ homes — to pursue and apprehend bail skippers (Fisher, 2009). And as noted in the Washington Post (Kindy & Crites, 2022), a particularly unjust application of third-party law enforcement occurred when states offered bounties to ordinary citizens to confine and turn in fugitive slaves and empowered private militias, including the Ku Klux Klan, to intimidate and assault free Black citizens.
Bounty hunter-style laws exist for financial transgressions as well. The Dodd-Frank Wall Street reform legislation, signed by President Barack Obama in 2010, expanded the rights of whistleblowers to receive multi-million dollar “bounties” for reporting suspected securities law violations committed by their employers to the Securities Exchange Commission (Vega, 2012). And under the federal False Claims Act and state laws modeled after it, private citizens have had the right to file actions against anyone whom they believe has defrauded the government; in doing so they assume, in essence, the role of “a bounty hunter or private attorney general” (Rodriguez, 2018). In the education sphere, citizens often file such actions against entities, including for-profit colleges and K-12 providers, that they believe are fraudulently receiving government funding.
The rationale behind bounty hunter-style laws is clear: The government believes that it is ill-equipped to enforce certain laws on its own, that private citizens are well-equipped and motivated to do so, or both. The potential benefits of such a system are easy to discern, especially when these laws are directed at eradicating pernicious problems (say, consumer fraud or environmental pollution). But what counts as pernicious is in the eye of the beholder. In education, most of the calls for third-party legal enforcement, these days, are aimed at removing discussion related to race, religion, or LGBTQ+ issues from the classroom.
In education, most of the calls for third-party legal enforcement, these days, are aimed at removing discussion related to race, religion, or LGBTQ+ issues from the classroom.
These bounty hunter-style laws may allow private citizens to act in a manner that would be unlawful, even unconstitutional, if done by the government directly. (Think of the bondsperson breaking into a home in the dead of night, or a citizen punishing his neighbor for exercising her right to medical care.) True, in egregious situations, one might seek to hold the government accountable for private parties’ actions by arguing that they are, in effect, state actors. But, historically, courts have found making such a determination to be “slippery and troublesome” (Thornton v. Kroger Co., D.N.M., 2022). And some of these laws appear to be specifically designed to protect government officials from accountability. For example, S.B. 8 precludes state actors from engaging in the actions it empowers citizens to take — if anything goes wrong, it’s the bounty-hunting citizen who will be held responsible. There’s no penalty for the governmental agency or official that empowered the bounty hunter in the first place.
Are fears of rampant litigation and prosecution overblown?
What is the impact of the threat of legal liability or prosecution on educators? Clearly, it’s not negligible. Some opine that school-related lawsuits cost taxpayers millions every year, “in some cases ruining teachers’ lives” (Brooks, 2020). In one survey (albeit now 15 years old), 82% of teachers and 77% of principals said that the legal climate has changed the way they work, leading some teachers to make decisions influenced by their desire to avoid legal challenges (Hopkins, 2006). These data are consistent with educators’ more recent reactions to the anti-critical race theory movement, during which “the mere specter of legal battles” causes worry about public reactions to lessons involving race (Zou & Kao, 2021).
On the other hand, there’s reason to remain calm. First, the threat of legal action is not new; for decades, educators and other school officials have been subject to lawsuits for reasons ranging from personal injury to sexual misconduct. And there’s no sign that courts are suddenly being inundated with new lawsuits. Nor is there evidence that educators are being criminally prosecuted in larger numbers and for a wider array of offenses than non-educators. Of course, this doesn’t mean there isn’t a stream of proposals to prosecute school officials for acting or failing to act appropriately in certain situations. (See the earlier Iowa and Texas examples; see also Farbish, 2011, on a proposal to hold educators criminally liable for failing to stop school cyberbullying.)
Courts may not be flooded with such cases, but teaching will be stifled. Jails may not be filled, but teachers will be chilled.
Educators may also derive some comfort from the fact that, even when they are sued, they may be protected by a legal doctrine known as “qualified immunity,” under which the goal to hold public officials accountable for misdeeds is tempered by the desire to shield public employees from the constant threat of litigation, so long as they acted in a reasonable manner. (However, this doctrine has come under scrutiny recently, especially when it is used to protect police officers who’ve been accused of gross, racially motivated misconduct.)
Finally, not all the wrongheaded proposals to penalize educators will become law, and many that do will face legal challenges. Some already have: In March, the American Civil Liberties Union sued Gov. Abbott and other officials in state court, arguing that their attempts to treat gender transition as a form of child abuse violates Texas administrative and constitutional laws. And anti-critical race theory laws, including those enacted in Oklahoma and New Hampshire, are being challenged in court as violations of state and federal guarantees of free speech, due process, and equal protection.
Indeed, the biggest worry arising from the recent push to punish educators through the law probably isn’t that they’ll be sued or prosecuted, but that they will alter their behavior to avoid that possibility. Courts may not be flooded with such cases, but teaching will be stifled. Jails may not be filled, but teachers will be chilled. If enough teachers feel muzzled or constrained, then the impact on public education as a whole will be significant, especially at a time of potentially massive educator shortages.
To the extent we see more “Wanted” posters featuring educators in the future, it likely will not be because teachers are being hunted as criminals, but because they are wanted — literally — to fill empty classrooms.
References
Brooks, C. (2020, January 23). Historically speaking: How lawsuits against schools are tying the hands of teachers. The Morning Call.
Farbish, S. (2011). Sending the principal to the warden’s office: Holding school officials criminally liable for failing to report cyberbullying. Cardozo Journal of Law and Gender, 18: 109, 139.
Fisher, R.B. (2009). The history of American bounty hunting as a study in stunted legal growth, New York University Review of Legal and Social Change, 33, 199, 201-203.
Hopkins, G. (2006). Has the threat of lawsuits changed our schools? Education World.
Kim, R. (2022). Banning books: Unlawful censorship, or within a school’s discretion? Phi Delta Kappan, 102 (7), 62-64.
Kindy, K. & Crites, A. (2022, February 22). The Texas abortion ban created a ‘vigilante’ loophole. Both parties are rushing to take advantage. The Washington Post.
Rodriguez, G.E. (2018). The qui tam environmentalist: Holding polluters accountable through the False Claims Act. Alabama Civil Rights & Civil Liberties Law Review, 9, 473, 488-489.
Vega, M.A. (2012). Beyond incentives: Making corporate whistleblowing moral in the new era of Dodd-Frank Act “bounty hunting.” Connecticut Law Review, 45, 483.
Zou, I. & Kao, J. (2021, August 3). Texas teachers say GOP’s new social studies law will hinder how an entire generation understands race, history and current events. Texas Tribune.
This article appears in the May 2022 issue of Kappan, Vol. 103, No. 8, pp. 64-65.
ABOUT THE AUTHOR
Robert Kim
Robert Kim is the executive director of the Education Law Center, based in Newark, NJ. His most recent book is Education and the Law, 6th ed.
