July 22, 2017

Post-Election Hostile School Environment: Protecting Students from Bullying and Harassment

post election school climate

Schools, including K-12 schools, colleges, and universities, have a responsibility to protect their students from harm. Harm includes the inability to benefit fully from education as a result of being in a hostile school environment. The politically motivated rhetoric and actions seen in schools during and after the presidential campaign can create a hostile school environment for which schools can be held responsible.

Many of the attorneys who seek Education Management Consulting, LLC’s expert witness services are involved in litigation over the actions of students toward classmates. In these cases, attorneys want to know whether the school administration responded appropriately and reasonably under the circumstances. Each state has a law that requires schools’ governing bodies to develop and implement policies ensuring that students’ educational environment is free from hostility and is conducive to learning. When campaign rhetoric and the election results spark hateful harassment, intimidation, or bullying, resulting in a hostile school environment, schools must follow state law and respond according to the policies put forth by boards of education, colleges, or universities.

When a group of eighth-grade students intimidate a Latino student by saying, “You have to go back to Mexico now,” and, “You won’t be able to come back to school because there will be a wall to keep you out of our country,” the school needs to address this behavior. The student in this scenario refused to go to school after this occurred on three separate occasions. It can be argued that if the school knew or should have known about the harassment and failed to intervene to end the behavior, resulting in a hostile school environment, there may be an argument that the school breached the professional standard of care and may be liable for damages.

According to a survey by the Southern Poverty Law Center, there were almost 900 incidents of “hateful harassment” nationwide in the 10 days following the presidential election. Schools were the most common venue for these incidents, a result the center called “not surprising, given how prevalent bullying is in our nation’s schools.” The findings correlate with those of a previous study conducted by the center, which reported that the campaign’s scorching words had a “profoundly negative impact” on students. In the earlier study, more than half of teachers said they had seen an increase in harassment, intimidation, and bullying of students whose race, religion, or nationality was the target of political rhetoric resulting in a hostile school environment for all students.

This kind of behavior, when it occurs in schools, colleges, and universities, constitutes harassment (and, under certain policies, intimidation and bullying). Yet 4 out of 10 teachers who responded to the Southern Poverty Law Center’s post-election survey didn’t think their school had a real plan of action for dealing with bias and hate incidents. Some teachers interviewed by CNN said their schools could benefit from better resources and training for teachers, administrators, and staff.

No federal law directly addresses bullying in schools, however bullying in certain instances can overlap with discriminatory harassment based on protected classes. When intimidating, harassing and bullying behavior occurs, there may be a breach of federal civil rights or antidiscrimination laws or state laws against discrimination. No matter what label is used (e.g., harassment, intimidation or bullying), a school that fails to respond appropriately to harassment of students based on race, color, national origin, sex, age, disability, or religion may be violating one or more civil rights laws enforced by the Department of Education and the Department of Justice.

Determining the Professional Standard of Care in Cases Involving Harassment, Intimidation and Bullying

When Education Management Consulting, LLC reviews a case involving a hostile school environment and student harassment, our staff, after determining the issues surrounding a complaint, identifies the standard of professional care. The standard is identified in federal and state statutes, regulations, and advisories to administrators, as well as the policies of the board of education. Next, we review all testimony, reports, and other available information to identify the incident(s) that may have occurred, to whom they were reported, how the school responded, and in the opinion of our education expert witness, whether the school acted appropriately and reasonably and within the professional standard of care under the circumstance. The school may not have been informed of the harassing behavior, and in that case, would not have an obligation to supervise students any differently. If the administration, however, has knowledge of the harassing behavior, the school, through its administration and/or other employees, is responsible for supervising students differently to end the harmful behavior.

A plaintiff’s attorney will need to show that the school had policies to address harassment, that the administration had knowledge or should have had knowledge that harassment occurred, and that ignoring that information caused the harassment to continue or worsen. Additionally, the plaintiff’s attorney will need to show that the harassment was responsible for the creation of a hostile school environment to the extent that the student failed to benefit fully from his or her education.

A defendant’s attorney will need to show that the school had policies to address harassment, that staff was adequately informed and trained regarding the policies, that there was no knowledge of the alleged harassment nor should the school have known of it, and that the plaintiff did not experience a hostile learning environment and continued to benefit from their education.

School Duty Regarding Harassment, Intimidation, Bullying and School Climate

Anyone can report harassing conduct to a school official. When a school receives a complaint, it must take certain steps to investigate and resolve the situation while implementing school policies and procedures. These include:

  • Taking immediate and appropriate action to investigate or otherwise determine what happened
  • Ensuring that an inquiry is prompt, thorough, and impartial
  • Interviewing the targeted students, offending students, and witnesses, and maintaining documentation of the investigation
  • Communicating with the targeted students regarding the steps taken to end harassment
  • Checking with the targeted students to ensure that the harassment has ceased
  • Reporting any criminal conduct to the authorities
  • Implementing the school’s code of conduct and discipline for the offenders

When an investigation reveals that harassment has occurred, a school should take steps reasonably calculated to end the harassment, eliminate any hostile school environment, prevent harassment from recurring, and prevent retaliation against the targeted student(s) or complainant(s). In addition, schools should be proactive and ensure that students, parents, staff, and the community are trained and receive information on the prevention of harassment, intimidation and bullying motivated by political rhetoric and based on race, national origin, color, sex, age, disability, and religion.

Successfully Resolving Harassment Complaints to Avoid a Hostile School Environment

Appropriate responses will depend on the facts of each case. Following a complaint or observation of inappropriate harassing or intimidating behavior, school officials must conduct an “environmental scan” to determine what occurred, who was involved in what occurred, when and where it occurred, and what could have been done differently to avoid the behavior. Once an investigation is completed, the school should continue to monitor the situation, respond to harassment, and take reasonable steps when crafting remedies in order to prevent a hostile school environment. The remedies should include responses intended to minimize burdens on students who were targets of the harassment. Possible responses include:

  • Develop, revise, and publicize the school’s policy prohibiting harassment and discrimination; Grievance procedures for students to file harassment complaints; Contact information for the Title IX and Title VI coordinators
  • Implement training for staff and administration on identifying and addressing harassment
  • Implement training for students on identifying and reporting harassment
  • Provide monitors or additional adult supervision in areas where harassment occurs
  • Determine consequences and services, such as counseling, for harassers, including whether or not discipline is appropriate
  • Limit interactions between harassers and their targets
  • Provide the harassed student an additional opportunity to obtain an educational benefit that was denied (e.g., retaking a test or class)
  • Provide services to a student who was denied a benefit (e.g., academic support services, counseling)

Schools Should Be Diligent, Watchful, and Responsive to Avoid a Hostile School Environment

What motivates students or gives them the impression that they can inappropriately express their bias, anger, or feelings about a classmate can come from various sources, including what is heard through the media, what is heard in the home, and political attitudes and expressions from candidates. Freedom of expression is cherished, but where it enters the light of harassing, intimidating, or bullying behavior that insults or demeans any student or group of students or severely or pervasively causes physical or emotional harm to the student, the school has a responsibility to intervene to end the behavior. If one student tells another student of Middle Eastern national origin, “Get out of this country. You are going to be kicked out. We don’t want you here,” this likely rises to the level of prohibited harassment, intimidation, or bullying. When a school administrator, teacher, or staff member observes such behavior or receives a report of such behavior, the school must immediately apply its policy, conduct an investigation, effectively discipline the offending student(s) according to the student code of conduct, provide support services to the victim(s), and implement other programs and services to inform students of school policy and the consequences of violating it. In the wake of the election, every school should assess the climate within its own walls and develop approaches that provide learning experiences for the students and not a forum for hate.

If a school district or board of education has an appropriate policy; has effectively communicated the policy to its staff and students; provided additional staff and student training programs that cover divergent political views, tolerance, and acceptance; and, acts immediately upon a report of harassment, intimidation, and bullying related to the fallout from the election, the school will have a better chance of defending itself after an incident occurs. On the other hand, if a student brings a lawsuit against the school and can demonstrate that he or she was intimidated because of national origin and that the school was lax in the implementation of its policy, the plaintiff’s attorney will likely have a better chance to prevail.

It is likely that the post-election hostile school environment and climate will continue to embolden some students to harass and intimidate classmates based on their ethnicity, gender identity, sexual orientation, religion, or national origin. No doubt, many schools will be more active in responding to incidents. Before such behavior enters the realm of litigation, schools may be able to respond in a way that not only will protect students from the harm of a hostile school environment, but educates students about acceptance, tolerance, and community.

Student Sports Injury and School Liability

Sports Injury Liability

Nationwide, 7.6 million students participate in interscholastic athletics, according to U.S. News and World Report. Keeping them safe is critically important to avoid school liability and sports injury lawsuits. And when sports injury occurs, schools may be found responsible if they failed to take reasonable precautions and supervision of students in order to prevent sports injury. Parents send their children to school with the implicit expectation that schools will do whatever is necessary to keep them safe whether in the classroom or on the football field.

Although there is inherent risk in athletic competition, parents rightly expect that coaches will take reasonable and proactive measures to protect student athletes from harm. In the vast majority of cases, coaches do exercise prudent judgment and care. Sometimes, though, coaches are careless or deliberately indifferent, thereby jeopardizing the health and safety of the athletes under their care. Many states have very strict immunity laws protecting schools and coaches for acts of negligence. However, a careful analysis of the actions and inactions taken by coaches that caused injury to an athlete can be introduced by a plaintiff in order to overcome immunity claims by schools.  

 

Policies and Training of Coaching Staff are Key to Preventing Athletic Injury

As expert witnesses, we have encountered many cases in which students suffered physical or emotional sports injuries during their involvement in school athletics. Examples include instances of bullying, hazing, and sexual harassment on buses to and from interscholastic events while coaches were not paying attention. Other examples involve inappropriate behavior, physical assaults, fights, and initiation of younger team players while the coach was in his office with the door closed. Often, such behavior is excused as “boys being boys” or “kids being kids.”

A variety of circumstances on or off the field could potentially lead to personal injury of students. Unstructured practice time, unsafe premises, faulty athletic equipment, failure to follow established school policies, lack of policies, inappropriate and abusive behavior of coaches, and tolerance of such behavior are just a few examples.  Any of these circumstances may place students in situations where they can suffer sports injury, leaving schools liable for those injuries.

To avoid such situations, a school would be wise to begin with a two-step approach. The first is to develop policies that explicitly prohibit hazing and require that coaches, teachers, and anyone else in a supervisory capacity exercise proper care of students. Proper care involves appropriately supervising athletes, ensuring safe facilities, following state guidelines for interscholastic athletics, and directing students to appropriate medical care, if needed. The second step is to ensure that those responsible for carrying out those policies understand them and follow through on procedures for their implementation. It is prudent, for instance, for the athletic director to hold a preseason meeting with coaches before the start of fall, winter, and spring sports or any sports camps to advise coaches of their responsibilities. Parents and students should be invited to those meetings so that they also know the standard of care that coaches are expected to uphold and, if necessary, share their concerns with the athletic director.

 

School Liability for Unsafe School Premises and Defective Athletic Equipment

Because schools have a duty to provide safe facilities and grounds, they should periodically inspect locations where student activities are taking place. Failure to inspect school premises may be grounds for school liability. In one case in which our firm was engaged for expert witness services, a soccer player incurred serious injury during practice on the school athletic field. On several occasions, the coach and others reported to school officials that there were holes or deep depressions on the field, making the field uneven and potentially dangerous. The school did not fix the reported problem and, during practice, a student stepped into a deep depression, permanently injuring her ankle. In such situations, the school are negligent and often have actual knowledge of the dangerous conditions and deliberately ignores the notice, resulting in student sports injury.

In another case, during a softball game the center fielder’s face became stuck to the wooden outfield fence when she attempted to field a ball. As her face brushed up against the fence, a large sliver of wood entered her check, pinning her to the fence until someone came to dislodge her. Such personal injuries may be avoidable if playing facilities are regularly inspected. Upon inspection, unsafe conditions on athletic fields, gymnasiums, and related facilities must be promptly alleviated. Records of such inspections should be kept to ensure that inspections actually occur and to protect the district from a claim of an unsafe condition and school liability.

In certain situations, a school may not be responsible for the condition of its premises and the safety of others. In a 1984 case, (Begin v. Georgia Championship Wrestling, Inc., 172 Ga. App. 293, 322 S.E. 2d 737) a spectator at a wrestling exhibition was injured when her foot got stuck between two seams of plastic covering the gymnasium floor. The three-foot wide plastic strips had been placed around the wrestling ring by the school where the event was being held. The plaintiff sued the promoter of the event and not the school where it was held. The court clarified that, although the school was the sponsor of the event and employees placed the covering on the floor, the plaintiff was an invitee of Georgia Championship Wrestling, Inc., the promoter. The promoter was the occupier of the premises and, as such, is charged with the duty of keeping the premises safe for invitees even though the activity was held in the school gymnasium. An occupier of premises is under duty to inspect the premises to discover possible dangerous conditions  of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. (Prosser, Law of Torts (4th ed.) 393, 61)  

 

Coaches Should Exercise Reasonable Standard of Care to Prevent Student Sports Injury

To protect athletes, coaches should be proactive and consider everything they can do to prevent foreseeable athletic injuries. Participants in interscholastic athletics are students first and athletes second. As such, coaches are in the position of providing, at a minimum, “parental control” and must exercise judgment that a “reasonably prudent adult” would take to ensure the safety of students. That means for example, creating practice and game conditions that are safe, such as pitting athletes of equal (rather than unequal) ability against each other and modeling sportsmanship and ethical behavior.

Sometimes, coaches may be inclined to push athletes into a game situation for the sake of a win. Instead, coaches should have the attitude that the safety of student athletes is more important than wins. They should follow guidelines prescribed by their State Athletic Association regarding concussions or drink breaks, for instance. All reports of injuries should be taken seriously and medical attention provided, even if only precautionary. Many high schools today have athletic trainers available at practices, but some have trainers only at games or not at all.

The same attitude of injury prevention applies to physical education classes. Physical education teachers should routinely monitor and ensure the safety of physical education facilities and equipment. They should take all claims of injuries seriously and have students examined by the school nurse if they claim to be hurt. In our experience, many tragic injuries — and even death — have resulted from dismissing a student’s initial complaint as inconsequential.

Coaches should supervise athletes at all times — while they are in the locker room before and after practice, waiting to be picked up after practice, and any time they are on school grounds. Students are far less likely to do something inappropriate if they are properly supervised and if they know that certain behaviors are not tolerated. When coaches fail to supervise and a student is injured, the school may be held liable.

 

Schools Should Continually Monitor Athletics to Minimize Sports Injury

Finally, school administrators should ensure that coaches and physical education teachers conscientiously carry out their responsibilities. When everyone does their part, the school may avoid liability claims and costly litigation. But absence of claims is not the goal; ensuring the health and safety of student athletes is the goal. If safe conditions are in place, if coaches and physical education teachers supervise students appropriately, and if they respond to injuries quickly, then the likelihood of student athletes becoming injured will be greatly decreased — and students, parents, and the school will all benefit.

Student Injury and Standard of Professional Care Analysis in Schools

student injuryRisk of personal injury to children is reduced when activities, facilities, equipment, personnel, and supervision are brought into compliance with “standards.” There are several sources of standards. Some standards are mandated by law through statutes. Additional standards are set forth by oversight authorities, such as the American Academy of Pediatrics, the American Camping Association, the National Federation of High School Athletic Associations, or the U.S. Consumer Product Safety Commission, to name a few. Other standards involve the customary professional practice of those conducting such activities. Ignorance of such standards is no excuse for failing to comply and schools and agencies with children have a duty to be proactive about implementing standards in order to prevent student injury.

As an education and child supervision expert, I begin my review and analysis of the issues of a case by identifying standards in the field — those mandated by law, or statutory standards, those set forth by oversight authorities as well as the customary professional practice of the school, summer camp or daycare — and then determine whether they met those standards. If my review and analysis demonstrates that standards were not met, then the next step is to consider whether a breach of one or more standards was a proximate cause of alleged student injury. Determining whether a risk of injury exists is, in part, assessed by ascertaining whether compliance with standards is met. For example, although there may not be standards mandated by law for camps that offer swimming as part of their programs, the American Camping Association, an oversight authority, specifies minimum requirements for a lifeguard. Meeting this standard requires a minimum level of training for the lifeguard and also certification. If the camp employs a lifeguard who does not meet these requirements, there is an inherent risk of student injury since the lifeguard was not trained to receive the certification.

Federal statutes, such as the Individuals with Disabilities Education Act (IDEA), require that schools provide a certain level of programs and services for children with disabilities so that children can benefit from their education. Regulations implemented for IDEA specify that schools must develop an Individualized Education Program (IEP) for a child with a disability and that the IEP be reasonably calculated for the child to benefit from his or her education. This, then, becomes a standard of care for comparing how the school met or failed to meet the needs of a particular child. If a child displays significant behavior issues, then the statute requires the school to conduct a behavior assessment and develop a behavior plan to be followed by school employees. Failure to develop an appropriate and reasonable behavior plan as part of an IEP for a child with behavioral problems and failure to train teachers in its implementation may be considered a breach of the professional standard of care. If a plaintiff became seriously injured in a fight with the student who exhibited behavioral issues, and if the school had notice of the student’s aggressive behavior but failed to address it through the IEP, the school may be held liable for breach of the professional standard of care and student injury.

Schools must develop policies to guide their operations, to provide educational services for students, to develop curriculum and to supervise teachers, all for the end result of providing education in a safe environment. Schools have policies that reflect their staff’s responsibility to report child abuse, how to implement the student code of conduct and how to curb hazing in athletics. For example, every state requires local school boards to develop and implement a policy to address school bullying. This becomes another source of the standard of professional care. If a student was identified as one who had bullied others and later seriously injures a student in a fight, one of the questions to be asked is: Did the school meet the professional standard of care required by state statute and by its own policy? Is there a nexus between any breach of care and the student injury? If the school did not have a policy to address bullying or if the policy in place failed to meet key components of state statute such as staff training requirements, those breaches may be a proximate cause of student injury.

 

Student Injury Lawsuits and Professional Standards of Care

Professional standards set the backdrop for case review and analysis. At the top of the list are regulatory requirements in the form of statute, regulation, and licensing standards. In cases involving the death or serious student injury, these are first standards I identify. For example, if the state of Delaware requires that the ratio of certified, trained adults to three-year-olds in a childcare program is one adult for every five children, then that becomes one of the standards. I determine whether the daycare acted within the professional standard of care and whether its actions were appropriate and reasonable under the specific circumstances. If, as an example, a child climbed on top of a table in a classroom, stood up, and was pushed off by another student, I determine how many children were under the care and supervision of the teacher at that time. If the teacher was responsible for 15 students when the injury occurred but the law says there were only to be five students, then one of my opinions might be that the breach of this professional standard of care was a proximate cause of student injury.

Next in line are the policies of the school, summer camp, daycare or other agency responsible for the care of children. In most cases, these policies mirror federal and state statutes and regulations, but sometimes they go beyond them. When the school develops its policies, those policies become part of the professional standard of care as expressed by that school, and the school can be held to compliance with them. In addition, other standards may apply, information contained in parent and staff handbooks. The school must comply with the standards in these documents if it is to demonstrate that it met the professional standard of care.

In some situations, beyond school policy, there may be unpublished standards — “unwritten rules” — that have been developed over time by the school administration. This component becomes another layer of standards and often is difficult to address because it is considered custom and practice within a single school or agency. It becomes difficult to argue against or to defend because in some cases these customs may run counter to professional standards of care. For example, a principal has developed a policy that, when a student misbehaves in the cafeteria, she brings that student to her office to sit out the lunch time. During the time the student is in the principal’s office the principal talks with the student about his behavior. The principal has done this for three years and there has never been a question. This became an unwritten rule, an unpublished standard and practice beyond school policy. However, official policy requires the principal to complete a referral form for the school counselor and the counselor is expected to meet with the student. On one occasion, after several disciplinary issues occurring in the cafeteria, and meeting with the principal in her office, this student attacked a classmate at the end of the school day. A thorough review of the school policies will include the standard developed by the principal which, in this case, was contradictory to official school policy. Although counseling this student in the principal’s office might be shown to have been somewhat reasonable, counseling with the school counselor as per written school policy might have avoided the aggressive behavior and prevented student injury.

 

Professional Standard and School Liability

The appropriate and acceptable standard of care is demonstrated when a person, such as the supervisor of a child, acted reasonably and prudently in a specific circumstance. Failing to act reasonably and prudently may be a proximate cause of student injury. Compliance with standards alone does not entitle the school to summary judgment. Some standards are not adequate for specific situations. Customary usage and practice of the industry is relevant for determining whether a standard had been met. However, such usage cannot be determinative of the standard (Marietta v. Cliffs Ridge, 385 Mic. 364, 189 N.W. 2d 208 [1971]). On the other hand, if a school failed to comply with standards, it makes evidence of improper care easier to show. For example, the required student-to-teacher ratio in a preschool program of three-year-olds is one adult to five children. A school did meet that standard but a student was injured when he ran into the corner of a table when the teacher wasn’t paying attention. Just because the school complied with the teacher-to-student ratio does not entitle it to summary judgment. Often this is argued but other relevant circumstances must be assessed such as the attention of the teachers. If the school had one teacher supervising ten students when an injury occurred, this is clearly a breach of the standard and likely will be a contributing factor to the injury of the child.

Failure to follow some standards may not be related to student injury or loss; there must be proximate cause. In some situations, the level of care promulgated by the standard may not be necessary for providing a safe environment; the standard may go beyond a minimum requirement. The reasonable and prudent professional standard is, therefore, added to the pyramid of standards of care. This standard can be assessed only by a person who is qualified through education, training and professional experience to render such an opinion.
Professional standards are the foundation for determining liability when a child is injured or killed while under the care of a school, camp daycare center, or other agency entrusted with child safety. The many layers of standards, whether these standards were followed, whether actions were appropriate under the circumstances, and whether an action or lack of action was a proximate cause of injury or death weave a complex web in any determination of liability.

Assessment of Liability: Child Abuse and Injury in Residential Care

Residential School LiabilityIn my profession as an education administration and student supervision expert, I have observed that residential schools and boarding schools present a higher duty than day schools to supervise children and a greater opportunity for the school to be found liable for child abuse and injury. When children are living and learning in a program 24/7, staff must demonstrate not only a professional standard of care, but also a reasonable and prudent parent standard of care. Although related, these standards are distinct and must be appropriately and reasonably applied in a setting where staff serves as surrogate parents and others serve as teachers, counselors, and psychologists. When a child is sexually assaulted, administered unnecessary corporal punishment, or is injured or dies in a residential school, both of these standards need to be addressed.

Residential programs, particularly in large institutional settings, carry inherent risks to children, including the number of staff in positions of authority who interact with children, development of institutional norms that may be different from those in the broader community, and a tendency toward closed communication systems where information is kept within the institution. In the field of education administration and supervision, certain standards guide the care and protection of children in order to prevent child abuse and provide adequate care. These standards are greater than those of a reasonable parent or the general public to ensure that risks involved in the care and education of children are appropriately assessed and are inclusive of ways to address those risks. Within this framework, it is essential to develop appropriate policies, regulations, and procedures that ensure that standards of behavior follow applicable state and federal laws and to carry them out. At a minimum, policies, regulations, and procedures should ensure that:

  • Students know what constitutes unacceptable behavior and how to recognize it
  • Policies and procedures for reporting mistreatment and child abuse are established and made known to students, parents, and staff, and that parents can feel confident that complaints will be addressed appropriately
  • Students and parents participate in the development and review of a plan of care
  • Staff selection, supervision, and training ensures that staff has the knowledge and skills necessary to care for students and meet their needs
  • Accountability processes are in place to monitor whether students’ care needs are being met and that policies and procedures are implemented
  • Student care practices are consistent with established standards and policies
  • Students regularly participate in community activities and that community members are involved in school activities

Reasonable and prudent parent standard

California’s Welfare and Institutions Code (sections 362.04 and 362.05) defines the “reasonable and prudent parent standard” as careful and sensible parental decisions that maintain the child’s health, safety, and best interests. The goal of the reasonable and prudent parent standard is to:

  • Provide the youth with a “normal” life experience in out-of-home care
  • Empower the out-of-home caregiver to encourage youth to engage in extracurricular activities that promote child well-being
  • Allow for reasonable parenting decisions to be made by the out-of-home caregiver without waiting to obtain approval from a social worker or institution
  • Remove barriers to recruitment and retention of high-quality foster caregivers
  • Reduce the need for social workers to either give permission or obtain Juvenile Court approval for reasonable caregiving activities
  • Respect the rights of youth in out-of-home care

The U.S. Department of Health and Human Services’ Administration on Children, Youth, and Families uses a similar definition of the standard, while adding recognition of the need to “encourage the child’s emotional and developmental growth.”

While there are many definitions for what would be considered a reasonable and prudent parent standard, the general concept is that parents are often — if not daily — faced with decisions about their children’s care that involve judgment. Parents who are both reasonable and prudent will make decisions carefully, weighing the benefits and potential risks to come to a sensible decision that is in the best interest of the child.

Professionals who care for children in their custody have a duty to meet the same standard, but also have a higher duty to meet the standards of a reasonable professional. The reasonable professional standard of care includes ethical or legal responsibility to exercise the level of care, diligence, and skill prescribed in the code of practice of his or her profession.

The professional standard of care with regard to the supervision of children in both day schools and residential and boarding schools is that staff act appropriately and reasonably under the circumstance to protect children from harm, that the school develop and implement policies to implement and oversee supervision, and that the staff be appropriately hired, supervised, and trained.

Standard of care for residential and boarding schools

Both the reasonable and prudent parent standard and the professional standard of care are applicable in residential and boarding school settings.

When an institution is established by a government, or when a boarding school program is established by a private board or an individual, the government or board should assure that, at the very minimum, the reasonable and prudent parent standard is met and that adequate programs, services, and student supervision are in place to maintain and protect their health, safety, and well-being. The professional standard includes every aspect of the reasonable and prudent parent standard in addition to ensuring that an adequate infrastructure is established to operate a residential or boarding school. Infrastructure means developing and implementing policies, procedures, and regulations that address such activities as: hiring, supervision, retention and training of staff; staff discipline; development of programs and services for students according to their needs; student supervision and discipline; administration; human resource planning; development and implementation of training and investigation of complaints; and follow-up on issues that can cause foreseeable harm to students. This infrastructure enables a residential or boarding school to meet both the reasonable and prudent parent standard and the professional standard of care.

When applying the reasonable and prudent parent standard, schools and other institutions that care for and supervise children have a greater responsibility than parents. For example, a parent of a child with multiple disabilities living at home requires certain necessities, such as adequate shelter, nutrition, health care, a safe environment, a caregiver while parents are working, and other services that provide for the child’s adequate supervision and protection. Before these necessities can be provided, certain family systems that allow for such care to be provided must be in place. These systems include income for providing a home, food and clothing, and adult collaboration. Here, in addition to the systems necessary to meet the reasonable and prudent parent standard, the professional standard of care is added. This standard is defined by the level of care, diligence, and skill prescribed in the code of practice for the profession; by the person’s education, training, and professional experience; and by how other professionals in the same discipline would behave in the same or similar circumstances.

Residential and boarding school personnel act in loco parentis to educate and care for children who are not living at home. As such, these institutions should meet the reasonable and prudent parent standard and, because professionals are responsible for students in the residences, the professional standard of care applies as well. Based on my professional experience, identifying children with specific disabilities who are not able to receive adequate services at home with their parents or in their local school, and placing them in a location where professionals with specialized education and training are more able to provide necessary care and education, is the standard of care.

Expert role in assessing standards of care

As an education administration and student supervision expert witness, I am called to assess and analyze whether applicable standards of care were met in lawsuits involving injury, death, child abuse or sexual abuse of students attending residential school programs. To make that analysis, I conduct an extensive review of documents, including policies and procedures for hiring and supervision of staff and supervision of children in residential and boarding schools.

In the case of child abuse, sexual abuse, death, or serious injury, it must be determined whether the agency, through its administration and/or other employees, acted within the reasonable and prudent standard of care and within the professional standard of care. Policies and procedures must be reflective of the nature of children in general and, specifically, the nature of children attending the residential or boarding school. For example, if the facility educates and provides psychological assistance to children who are chronic sex offenders, it makes sense that the school develop and implement policies that address staff training in the prevention, identification, and reporting of sexual abuse. Such a facility would also be expected to have and enforce policies that provide a high level of line-of-sight and close supervision of children during the day and, especially, during such less-supervised times as evening and bedtime. If a child is sexually abused in a residential center that does not develop and implement appropriate policies that consider the nature of children in its care, that facility might be found negligent.

Many times, I find during a case review that the residential or boarding school failed to develop policies and supervise or appropriately train its staff — creating a situation where students with a propensity for disruptive behavior or sexual acting out are able to do so. When a student in a residential or boarding school is known to be overly interested in sexual matters or has inappropriately acted on those interests, this requires staff to consider a higher level of supervision for that student than typically provided to others in the facility. This is because there is a certain level of foreseeability that the student’s sexual acting out may place other students in danger of harm. When an agency has notice of a child’s propensities but fails to adequately inform and train staff and provide appropriate supervision, this is a breach of the professional standard of care that may place the health, safety, and well-being of children at risk. Failure to develop and implement appropriate policies and supervisory systems may be a proximate cause of harm to a child, resulting in costly litigation.

Real case examples

In many cases I have examined, schools have made claims to suggest that they are sensitive to the needs of vulnerable youth they serve, and that these children’s needs will be addressed in a way that protects their health, safety, and well-being. A boarding school in Vermont that advertised that, for more than 30 years, it had worked with boys who face dyslexia and related language-based learning challenges. Approximately 50 students from grades 6 through 12 who attend this school during the day live on campus. A residential school in New York had 12 cottages for housing “at-risk” boys between the ages of 6 and 20. Each cottage housed between 9 and 16 students. This school stated that it is staffed 24/7 with professionals experienced in helping children deal with anger, feelings of loss, and educational failure. According to the information packets of both schools, an important part of life is that the schools offer a structure that helps residents feel safe. Another boarding school for teens who are in trouble with the law or having substance abuse issues offered year-round enrollment for girls and boys ages 13-17. A military, special-needs boarding school in Canada that enrolled 125 students offered specialized programs for children in grades 6 to 12. And a sport-oriented boarding school in Canada stated that it’s important for their student-athletes to have parent-like advisors while living away from home.

The accommodations promoted by each of these schools suggest that they have the infrastructure to meet both the reasonable and prudent parent standard and the professional standard of care. In cases involving some of these facilities, however, it was my professional opinion that breaches in these standards contributed to student injury and/or constituted child abuse.

In a residential program for troubled boys, a student crawled out a window to a flat roof and attempted to jump across a gap to another roof. He fell 20 feet, resulting in serious injury. In a boarding school for girls, a staff member caught two girls kissing but didn’t investigate, interview them, or recommend counseling. A few weeks later, the aggressor raped her target. In another school, an older boy left his room, crossed the hallway, and entered the room of another student. He proceeded to sexually abuse the student while staff was to be posted in the hall to check rooms every 15 minutes. My review of this case revealed that staff was not present as they were supposed to be.
When a child is abused, injured, sexually abused, or dies under the supervision of staff at a residential or boarding school, the review is focused on two standards: the reasonable and prudent parent standard — because children in these settings are in a substitute home with substitute “parents” — and the professional standard of care required of educated and trained professionals in these settings. Although day schools must meet the professional standard of care, the reasonable and prudent parent standard is not typically applied in these settings. Children in day schools must be supervised according to the professional standard of care under the circumstance, whereas children who live at a residential or boarding school must also be supervised to the reasonable and prudent parent standard.

School Liability and High School Hazing

High School Hazing

Schools can be liable for high school hazing

School coaches have a duty to protect athletes from harm, including emotional or physical harm that may result from locker room hazing. High school hazing in athletics has many beginnings — the most prominent being an attitude of superiority among senior athletes and the belief that a weaker or younger athlete must be subjected to harassment to “make the grade” or to be “good enough” to be on the team. This mentality, if left unchecked and if students are allowed to participate in hazing behaviors, eventually can result in even more serious misconduct, such as sexual harassment and serious personal injury.

We often see the repercussions of hazing when it emerges from the locker room and finds its way into the courtroom. And it’s likely that courts will begin to see more hazing-related claims stemming from an alleged lack of appropriate student supervision.

Statutes and common law decisions reinforce the duty of school officials to exercise care to protect children from harm — a legally enforceable obligation for schools. Care is an element assessed when considering a complaint or defense involving negligence. Did the school, through its administration and/or other employees, act appropriately, reasonably, with care and within the professional standard under the circumstance? This duty refers to a responsibility to protect others from unreasonable risk of harm arising from inappropriate student interactions, including hazing. Exercising this duty begins with schools developing and implementing adequate policies against high school hazing, training coaches and students about those policies, promptly investigating complaints, appropriately supervising staff and students, and following through with consequences for violators. By doing this schools send a clear message to students and staff that hazing and other inappropriate behaviors are neither tolerated nor acceptable in school athletics.

 

High School Hazing is Harassment and Schools Can Be Liable

Recently in Sayreville, N.J., the superintendent ended the football season early in response to serious reports of locker room hazing at War Memorial High School that led to the arrests of seven student athletes and allegations of possible student-on-student sexual assault. In this case, a couple of legal repercussions will follow in response to the season’s cancellation. If a victim files a civil lawsuit against the school, the legal questions will likely examine whether hazing constitutes bullying (New Jersey’s Acting Commissioner of Education says it does) and whether the school appropriately trained its coaches to be aware of hazing and to take appropriate action to end it. Plaintiff’s attorneys may also argue negligent hiring, supervision and retention of the coaching staff, negligent supervision of students, and negligent infliction of emotional harm, among other claims. Defendant’s attorneys will likely argue that the school did everything properly in hiring and supervising coaches, that it developed and implemented appropriate policies, and that students were appropriately supervised during the time of the alleged incident. The answers will boil down to the school’s duty and whether it acted reasonably when training and supervising coaches and students, implementing its own policies, and complying with state law to protect student athletes and prevent a hostile environment from festering inside the locker room.

Schools’ perceived attitude toward the acceptance of hazing in athletics can result in costly litigation when student athletes suffer injuries inflicted by fellow students or even coaches. For example, in an Ohio case, a high school football player’s parents are suing over their teenager’s brain injuries, blaming his coaches for allegedly sanctioning a dangerous hazing ritual. According to the lawsuit, other students hit the victim as hard as they could, causing him to collapse later in the locker room — and no ambulance was called. The suit claims that the ritual required their son to take deliberate injury, in violation of his rights, and that the coaches acted under the government’s authority in ordering the intentional striking of the student. The suit also alleges that the school and coaches acted recklessly through complete failure to exercise any care to protect the student’s safety and were indifferent to the fact that his injury was a likely outcome of the violence directed toward him. Here, the plaintiff’s attorney will need to show that the state and school district had a policy defining the standard and that the school breached that standard, resulting in harm to the student. For its part, the school will need to demonstrate that policies and procedures were appropriate and reasonable, staff was hired and trained according to policy, if there was knowledge of the hazing, they took quick and appropriate action to end it.

 

Hazing Leads to Hostile School Environment

When the culture of  high school hazing becomes so accepted that even the athletes themselves may not recognize the need to report an injury, hazing, or harassing behaviors, the abuse is allowed to continue — undetected and untreated. This sad reality causes difficulty for the plaintiff’s attorney who wants to present a harassment claim alleging the school knew about inappropriate behaviors and acted deliberately indifferent to that behavior, resulting in harm to a student.

In a survey of American middle and high school students published in School Psychology International, 66 percent of bullying victims believed that school personnel responded poorly when they saw children being bullied. Kids who are bullied often don’t tell anyone, either because they think they won’t be believed or they fear retaliation. It’s not just targets of bullying and hazing who keep mum. Their peers do, too. Even though most students and athletes believe that hazing is wrong, witnesses rarely tell teachers and coaches, and they intervene only infrequently on the behalf of the child who is the target of the abuse. In fact, multiple studies suggest that only between 10 and 20 percent of noninvolved students provide any real help when another student is victimized. Student athletes worry that intervening will raise a bully’s wrath and make them the next target. They may also feel powerless to do anything about it; after all, they are peers — they are not the teacher or coach in charge of fellow students. So they tend to stand aside, watch the negative and often abusive behavior, feel confused about what to do, and internalize conflicting feelings and emotions. This raises the duty of school employees to educate and train students about hazing and how to report what they see, take time to observe and assess the environment, and take action whenever a situation might cause harm to a student — be it unsafe conditions on the playground or interactions among students in the locker room.

To promote a positive environment in locker rooms and to prevent high school hazing, it is important for schools to develop and implement an appropriate student code of conduct that includes athletes in the locker room and on the field. Hazing, specifically, must be prohibited, with strong consequences for violation. Teachers and coaches must be trained to take immediate and effective action to end hazing if it is reported or observed. Being able to demonstrate that the student code of conduct clearly addresses hazing and that teachers and coaches have been trained to take swift action will support a school in a lawsuit. School staff that consistently take immediate action and reinforce a positive school culture is the best deterrent to student harm — and the best defense in a lawsuit. Policies and training alone are not enough, however; if the school fails to show that it met its own standards, it will have difficulty defending itself against negligence and plaintiff’s attorney may be able to demonstrate that failure to act reinforced a culture of hazing that contributed to student harm.

As of the writing of this article the Middlesex County, N.J., prosecutor is conducting an investigation of the hazing and sexual abuse charges against the seven Sayreville football players; the school is waiting for the result before conducting its own investigation. There have been indications that parents will sue the school because it cancelled the football season, but these have yet to come forward. One player says he lost a college scholarship over the turn of events. Once the criminal part of the alleged harassment has been resolved, civil suits brought on by the victims will likely begin. Plaintiff and defendant attorneys should be prepared to address such issues as the coach’s duty to protect students, whether the school reasonably and appropriately trained its coaches to detect and act against hazing, whether the coach knew or should have known of hazing behavior, and what he or she did to end it — and whether any breach caused injury to the athlete.

 

Hazing and Title IX

Sayreville and similar high-profile incidents of high school hazing will likely bring many legal issues to the surface, including Title IX of the Education Amendments of 1972. When there are allegations or notice that locker room hazing involved sexual harassment, Title IX may be a viable avenue for a complaint and will complicate a review. Title IX imposes a duty on school officials to prevent sexual harassment in schools. According to U.S. Department of Education guidelines, sexual harassment occurs when a student experiences gender-based conduct by another student that is sufficiently severe, persistent, or pervasive that it limits a student’s ability to participate in or benefit from an educational program or activity. Sexual harassment also occurs when such activity creates a hostile or abusive educational environment. If a Title IX sexual harassment claim is attached to a claim of hazing, plaintiff and defendant attorneys will need to examine the type, frequency, and duration of the conduct; the number of individuals involved; and whether the victim suffered psychological distress — in addition to whether the school met its duty to exercise care and whether it followed its own policies and professional standards under the circumstances.

Applying and Piercing Governmental Immunity in School Liability Cases

Governmental Immunity in School Liability CasesWhen a student personal injury in a public school triggers litigation, plaintiff and defendant attorneys must address the concept of governmental immunity. In general, governmental immunity shields public schools from tort litigation and liability. Governmental immunity is not universally applicable, however, depending on how the facts of a specific case accord with state or provincial laws. This article is about how governmental immunity in public school cases might be pierced and how schools can determine whether governmental immunity applies in school liability cases.

 

In the United States, state laws vary considerably on the question of governmental immunity for tort liability. Common law has driven legislative initiatives, often in response to a trending issue, that strengthen or erode governmental immunity protection. In Canada, by contrast, tort liability of the government is relatively new and is statute-based. In Canada, the Crown Liability Act leaves the “Crown” liable in tort as an individual would be.

 

Variation in U.S. laws results in differing levels of school immunity from state to state. Eleven states[1] allow suits regarding nondiscretionary functions only; 39 states, including the District of Columbia, provide for discretionary action as an exception to the general rule of liability. Some states protect schools from liability for the tort of negligent hiring or retention of staff. Some permit suits only for personal injury or death or only for dangerous property conditions. A few states generally allow tort suits against teachers only for “willful and wanton” misconduct. Some states limit dollar amounts that may be collected.

School Liability Immunity in the context of Discretionary Judgment and Dangerous Conditions

Governmental immunity is the most frequent defense in tort cases. Before considering whether governmental immunity applies, the questions of school liability — such as duty of care, breach of duty, and proximate causation — should be addressed. Attorneys should carefully review and analyze the circumstances surrounding student injury leading to a tort claim. Consider two examples: a teacher who tutors a student alone in her classroom with the door closed and a teacher who continues to use equipment that has been recalled for safety reasons. The immediate relevant questions in both examples are: Did the school have actual notice, or should it have known, of a situation that a reasonable school administrator would agree could place a student in harm’s way? Under the circumstances, did the school act reasonably, appropriately, and within the professional standard of care to protect students from harm?

In the first example, if the school maintains a policy that no teacher is allowed to be alone with a student in a classroom, yet it is known that the teacher is tutoring a student one-on-one in her classroom behind a closed door, did the administrator follow up by correcting the teacher and noting the violation in her personnel file? In the second example, did the school continue to use a table saw with a missing blade guard, or did the teacher take it out of use and arrange for its repair? Ignoring red flags may lead to the potential for student sexual abuse in the first example and serious student personal injury in the second. In some states, governmental immunity may not apply to these examples.

Because negligent acts are often the result of discretionary judgment on the part of a school, the question of whether an act (or failure to act) was discretionary is of major importance in states granting school immunity for discretionary acts. Discretionary acts in school setting generally involve planning, goal setting, evaluation, and the exercise of judgment.

As an example, federal and state laws require schools to identify students with disabilities and engage in a process that leads to the development of an Individualized Education Program (IEP). An IEP is a written document that specifies “contractual” agreements about services to be provided to the student. For a student with a physical disability, one such provision might be an aide to help the student safely negotiate school hallways and protect her from injury on the playground. In one case, the aide did not show up for work on a day the student attempted to negotiate a crowded stairway. She fell and sustained an injury, causing permanent scarring to her face from lacerations. She sued the school, claiming negligent student supervision. The school invoked immunity, saying the act of providing the aide was discretionary. Determining whether this truly was a discretionary act, however, is the key as to whether immunity applies in this type of case.

As a school administration expert witness, when I review and analyze a case like this, I determine the professional standard of care under the circumstances and whether the school, through its administration and/or other employees, acted reasonably, appropriately, and met that standard. Was the requirement for an aide to assist the student reasonable and appropriate? The school had determined that the aide was necessary for the student to have safe access to her education. Does this place a nondiscretionary component into the analysis? If there is no discretion or flexibility when it comes to providing the aide, and on this day no aide was there, did the school breach a mandatory standard — perhaps removing the protection of governmental immunity?

In another example, a principal allegedly knew that a music teacher had sexually abused a student in an after-school program. Instead of taking appropriate action by reporting the incident to child protective services and separating the teacher from students, the principal simply transferred the teacher to another school. At the new school, the teacher continued his behavior with a different student until it was reported to police. It may be argued that the proximate cause of the second student’s sexual abuse was the principal’s gross negligence in his decision making.

In a state that allows level of negligence to determine whether governmental immunity can be invoked, the plaintiff may prevail. However, if there was no knowledge of the teacher’s behavior before his transfer, then the school would have had no duty to protect students from harm and would likely prevail under the doctrine of governmental immunity.

 

School Immunity and Premises Liability

A proximate cause of student injury in schools may be failure on the part of the administration or other employees who are charged with a ministerial duty. In contrast to discretionary acts, a ministerial duty is a responsibility to conform to federal, state, or local statutes or to policies and procedures a school has set. Determining the elements of a policy and enacting the policy may be discretionary acts, while the responsibility to carry them out is a ministerial school duty.

If a student is injured by equipment that violates safety standards or is not maintained according to the manufacturer’s specifications, courts must decide whether the general legislative policy of promoting student safety should prevail by imposing tort liability, or whether the doctrine of immunizing the school from exposure to tort suits should prevail. Many courts favor public policy governing safety and impose liability on school districts, thus piercing governmental immunity.

Some jurisdictions recognize claims of failure to keep school premises in a safe condition, permitting recovery from schools for maintaining a nuisance. Maintaining a nuisance seems to be recognized as an exception to the general rule of immunity. Some courts have determined that if school officials mismanage school property, they are liable for damages because of that mismanagement.

As an example, in the corner of a third-grade classroom, a teacher set up a “reading lounge.” During afternoon reading time, six children crowded into the area to see the new books the teacher put out. Three students sat together on a desk that collapsed, seriously injuring a child. The teacher knew the desk was broken and had reported it to the custodian, expecting that it would be taken from her room for repair. Yet she did not prevent students from continuing to use it, leading to injury. Did the school have a duty to take the desk out of service, foreseeing that a student could become injured if it remained in the classroom? If it can be shown the teacher acted grossly negligent by failing to assure the desk was repaired and that this was the proximate cause of the student’s injury, then in some states this may be considered “maintaining a nuisance” and the school may not be shielded by governmental immunity.

Playground injuries are often addressed in the context of governmental immunity. In one example, the playground in a school for students with disabilities was fenced. The latch on the fence gate had been broken for weeks, and though this had been reported to the principal when it first broke, no action was taken to repair it. A student left the playground through the defective gate, running into the street and being struck by a car resulting in a wrongful death claim. This school may not be able to stand behind governmental immunity if it can be successfully argued that the school had a ministerial duty to assure the gate operated correctly to protect students from harm. On the other hand, if the attorney for the school convinces a trier of fact that installing a fence with a gate in that location and repairing the gate is discretionary, the school may prevail.

Even if the school argues that these activities are discretionary, an expert witness working on a case like this would review and analyze issues, policies, and actions that may have been a proximate cause of injury to a student. As an example, if I were to render an opinion that, because of the level of disability students at this school, the administration had a higher-than-average duty to protect them from harm — coupled with the facts that the school board conducted a safety audit of the grounds, identified the necessity of a fence and gate to protect student safety, and enacted a well-understood policy that the gate remain closed when students are on the playground but the gate latch went unrepaired for weeks — I would likely determine that failure to repair the latch in a timely manner was neither reasonable nor a discretionary act, and therefore governmental immunity would not be applicable and school liability for student wrongful death would stand. The inoperable gate created a situation that otherwise would not have existed. By applying my experience and qualifications, I assess duty to protect, whether the school’s action or inaction was reasonable and appropriate, and whether it was a proximate cause of injury or death. A careful review and analysis of the facts from the perspective of a reasonable school administrator will help to determine if the school’s actions or inactions led to injury.

 

Summary

Because it varies significantly by state and its provision is influenced by individual circumstances, governmental immunity is something of an elusive standard. Assessing a public school’s duty to provide for the health, safety, and welfare of its students and determining how well it fulfilled or failed to fulfill that duty from the perspective of a reasonable school administrator provides the starting point for determining whether school immunity will prevail. This determination and analysis of applications of governmental immunity can either be used as a school defense against liability, or as a way of piercing governmental immunity by plaintiffs.

[1] Alabama, Arkansas, Colorado, Delaware, Georgia, Kentucky, Maine, Maryland, Missouri, New Hampshire, and New Mexico do not address discretionary actions as potential exceptions to governmental immunity in school liability cases.

Harassment and Hostile School Environment Lawsuits

sexual harassmentHarassment in schools can occur when a student is discriminated against on the basis of national origin, race, religion, disability, sexual orientation, gender, or other identifiable class. A school district may be found liable for harassment if there is no strong, widely disseminated, and consistently enforced policy prohibiting it and no effective complaint procedure is in place. Schools can also be held responsible for the consequences stemming from a failure to take immediate, appropriate steps to respond to a complaint about harassment or bullying, terminate it, and discipline the offending party, be it an employee or another student. When a school has knowledge that a hostile environment exists but does not act on this knowledge, it can be viewed as giving tacit approval to this activity. In such cases, school districts have been found liable for enabling hostile school environment that prevents students from learning.

A lawsuit predicated on the existence of a hostile school environment is likely to prevail if there is a clear and compelling argument that the school failed to meet the professional standard of care, which in turn created a circumstance that prevented a student from benefitting from his or her education. On the other hand, a lawsuit is likely to fail if the school had no actual knowledge or reason to believe that behavior of an employee or student created an environment of harassment. To prevail, an attorney must have an understanding of how schools work from the inside, as well as knowledge of case law and applicable statues and regulations. Understanding how a school administrator should respond and whether the administrator acted reasonably, appropriately, and within the professional standard of care under a specific circumstance will assist with the development of a complaint or the defense of a suit.

Sexual Harassment and Discrimination Example

Mike was a 14-year-old freshman in a small suburban high school. Since elementary school, he had had near-perfect attendance and good grades, and he was well liked by students and teachers. When his science teacher, Janet Frederick, asked Mike to help her to set up science experiments after school for the following day’s classes, Mike was flattered. It wasn’t unusual for students to be seen in her classroom after school.

School policy was that if a student stayed after school, the parent needed to give permission. This policy was sent to parents and discussed with all students at the beginning of each school year. Mrs. Frederick, however, never sought permission for Mike to stay after school. John Foreman, the principal, never approved Mike’s staying late, and Mike’s mother didn’t ask why he was coming home late three days a week. Mike and Mrs. Frederick were often alone in her classroom and, at one point, another teacher reported it to the office. Additionally, contrary to school rules and policies, she drove him home in her car. Other students noticed that Mrs. Frederick was showing favoritism to Mike, letting him turn in homework late and calling on him in class a lot.

Mrs. Frederick and Mike developed a relationship that any reasonable teacher would guard against. They were becoming too close. Mrs. Frederick knew that, under school policy, she should neither be in her classroom alone with Mike, nor drive him home in her car. The relationship turned sexual and continued for three months.

No one understood why Mike became increasingly distracted from schoolwork. His grades fell, he began missing school, and he didn’t turn in homework. Eventually, his school counselor asked to see him. In their second counseling session, Mike told her of the affair. Alarmed at his confession, Mike’s counselor immediately went to Mr. Foreman and reported what she was told. Child Protective Services was called and a report was made. Mike’s mother was contacted and law enforcement was notified. The same day, Mrs. Frederick was suspended. Rumors flew and some of Mike’s classmates started making comments to him about the affair. He became increasingly upset and convinced his parents to enroll him in a private school where he could get a fresh start.

A year after Mike left the school, his parents filed a lawsuit against the district. The suit claimed that a hostile learning environment had developed that became intolerable for him, forcing him to leave the school and costing his parents thousands of dollars in tuition and transportation fees. Let’s take a look at the merit of this case and the elements of defense.

Legal Elements of Sexual Harassment and Hostile Learning Environment Lawsuits

Two types of sexual harassment have been established by law: quid pro quo and hostile environment. These are relevant in both workplace- and school-harassment claims. Quid pro quo harassment involves the satisfaction of sexual demands as a condition of receipt of some benefit in return. Hostile environment harassment, the focus of this situation, can be created when unwelcome sexual conduct becomes so severe or persistent that it creates an intimidating, threatening, or abusive environment that affects a student’s ability to participate in or benefit from an educational program or activity.

For this analysis, I will apply the hostile environment theory and assume that a school employee who received the report about Mike being seen in Mrs. Frederick’s classroom after hours failed to act on it.

The plaintiff’s attorney will argue that the harassment by the teacher became so pervasive and objectively offensive that it deprived Mike of access to educational opportunities provided to all students. Mike’s drop in grades and the fact that he left the school attest to this. The facts leading up to these circumstances are compelling: During the time of the affair, he missed 30 days of school and he wasn’t completing homework. Because of his continual discomfort with being around the teacher, the rumors swirling around their relationship, and harassment he received from classmates, Mike left the school. His attorney will argue that the conditions amounted to deprival of an educational opportunity.

In Vance v. Spencer County Public School District (231 F.3d 253 [C.A. 6th Cir., 2000]), the Sixth Circuit Court found that when sexually harassing behavior becomes so pervasive that it forces the victim to leave school on several occasions and ultimately forces the student’s withdrawal from school, the behavior rises to the level of systematically depriving the victim of access to education. The court sided with the student. By contrast, the 11th Circuit Court ruled in Hawkins v. Sarasota County School Board (322 F.3d 1279 [11th Cir., 2003]) that three female students were not entitled to damages for student-on-student sexual harassment, despite the persistency and frequency of the behavior. In this case, none of the students’ grades suffered, no observable change in their classroom demeanor occurred, and none of the students reported the harassment to their parents until months had passed.

The defendant’s attorney can raise a strong argument that even though an inappropriate relationship occurred, no official with the authority to stop the behavior had notice of it. Without notice, it is reasonable that Mike and Mrs. Frederick would not have been supervised any differently than any other student or teacher in the school. Defense might also point out that many factors in a child’s life can cause distractions from schoolwork — any of which could have contributed to Mike’s drop in grades, frequent absences, and transfer to another school. The defense attorney can argue that Mrs. Frederick was acting outside her scope of employment when she engaged in sexual behavior with Mike, and at no time did any sexual act take place at school.

The school will need to overcome the fact that an administrator knew that Mrs. Frederick was meeting with Mike alone in her classroom after school. If it cannot reasonably explain why the school did not investigate her breach of school policy, the school may have difficulty persuading a court that that it could not have known that inappropriate behavior was taking place. If the principal had followed up, interviewing both Mike and Mrs. Frederick to learn why he was frequently with her after hours, then that would weigh in the school’s favor. If the principal reprimanded Mrs. Frederick for breaching policy and told her not to have students in her classroom after hours, this also would support the school’s case. A school’s follow-up to a report of potential misconduct or a violation of school policy may not prevent inappropriate behavior, but a school that fails to do anything in response can be argued to have acted deliberately indifferent.

Racial Discrimination and Harassment Case Study

A sixth-grader of Mexican origin brought a three-inch pocketknife to school against school rules. A teacher saw it and reported it to the principal, and the student received a three-day suspension. His father was called and the boy was not allowed back to school until a conference could take place with the principal and a re-entry plan could be developed.

Even before the student returned to school, his classmates spread rumors. “Carlos is Mexican. They always carry knives,” they said. When Carlos returned to school, some students began commenting so that and he and the teacher could hear, “Go back to your own country! We don’t need any criminals here.” Mr. Marks, the teacher, heard this and told the students to stop, and they did. In another class, the same students made the same remarks loud enough for the teacher, Ms. Romano, to hear. This time, the teacher didn’t say anything to the students. Neither teacher reported anything to the principal. The school had an anti-harassment, intimidation, and bullying policy that required teachers to file written reports of such incidents, but the teachers were routinely instructed to deal with discipline in the classroom.

Over time, the harassment increased. In Ms. Romano’s science class, Carlos stopped paying attention to the lessons; he was too worried about what the kids were going to say to him and that they might physically hurt him. After two months, Carlos — an otherwise good student — started failing science quizzes and not turning in his math homework. His grades started to go down.

When Carlos brought his report card home, his father started to worry. Finally, he called Mr. Boyd, the principal, and complained that Carlos was being picked on. Mr. Boyd said he didn’t know anything about it and would check into it. He spoke with Carlos’s teachers and discovered that they did, in fact, hear the harassing comments. They had not followed the school’s anti-harassment policy requiring a formal written report to the principal. Mr. Boyd thought this was odd, considering that these teachers did report other inappropriate behavior to him.

After four months of falling grades and tolerating the harassment, Carlos attempted suicide. One year later — after Carlos had been placed in a treatment center and transferred to a private school at considerable cost — his parents filed a lawsuit against the school on various state and federal claims. Again, let’s examine the issues in this case and the legal elements that are relevant to the work of the plaintiff and defense attorneys.

Environmental Harassment in Schools Involving Race or National Origin

Environmental harassment, also known as a hostile work or school environment, arises in the school context when racial discrimination is so severe and pervasive that it distracts a student from his education. A racially hostile environment may be created by oral, written, graphic or physical conduct related to an individual’s race, color, or national origin in a way that interferes with an individual’s ability to participate in or benefit from school programs. Plaintiff and defendant attorneys should start by determining whether the school has created or allowed the existence of a racially hostile environment that prevents a student from adequately learning or thriving.

The most common form of racial discrimination in education is harassment by students. On the part of teachers, discrimination most frequently is related to in-class discipline. This behavior is especially prevalent toward African-American and Latino high school students. Other teacher-related discrimination can range from unfair grading to acceptance of discriminatory behavior from students in the classroom. Administrator-related discrimination is more common than teacher discrimination. Administrators may over penalize minority students. Minority students are more likely to be suspended or expelled than their majority peers.

In a lawsuit based on an allegation that a racially hostile learning environment exists, the attorney’s focus should be on whether any difference in treatment of the student created a circumstance that limited the student’s ability to participate in and benefit from a program. In this situation, I will assume that both parties agree that Carlos experienced harassment and that his grades went down.

Carlos’s attorney will argue that the school breached the professional standard of care when its teachers and principal failed to act reasonably and appropriately. He will argue that the school ignored the behavior of the students, let the harassment continue, and gave the students tacit permission to continue their behavior.

Plaintiff’s attorney will have a strong argument if he can demonstrate that the teachers who heard the harassing comments of students merely told the students to stop but did nothing more. The school had a written policy that this type of behavior is to be reported to the principal and that appropriate action would be taken according to the student code of conduct. If Carlos’s attorney can produce the policy, obtain deposition testimony from the teachers and the principal that reinforce the policy, and demonstrate that the policy was breached, he will have a strong position. The next focus will need to be to demonstrate how this breach caused Carlos’s grades to decline and eventually force his withdrawal from school. If these elements can be shown, then the attorney might be successful in recovering the tuition the parents paid, as well as damages under certain Constitutional provisions.

Defendant’s attorney will likely argue that intervening variables, such as the recent divorce of Carlos’s parents, caused distractions that resulted in the drop in Carlos’s grades. He might also argue that the decision for Carlos to attend a private school was not predicated on him being forced out but was a deliberate decision by one parent to place financial pressure on the other and for Carlos to receive a better education than provided in the public school. The attorney will need to show that the teachers acted reasonably under the circumstances when the students teased Carlos and that they followed established school procedure in telling them to stop. He will need to show that it was reasonable and appropriate for the principal to suspend Carlos for bringing a knife to school. This was within the professional standard of care and backed by school policy. Finally, it can be argued that the school can’t control rumors or how students talk about one another.

Conclusion

In lawsuits alleging the existence of a hostile school environment, a school can be held liable if it can be shown that this environment prevented a child from benefitting from educational opportunities afforded to all students in the school. In isolation, the facts of a case are not enough to establish liability; the merit of a suit or successful defense against one hinges on whether the facts stem from deviations from accepted standards of practice.

Attorneys for plaintiff and defendant will need to determine whether the facts contradicted school policies, resulted from disregard to professional standards or care, or could be foreseen given other relevant issues unique to a particular case. With respect to the actions of school administrators, the questions of “What did you know?”, “When did you know it?”, and “What did you do about it?” are particularly relevant.

If it can be shown that the totality of circumstances created an environment that effectively deprived a student of an educational opportunity, plaintiff attorneys will have a strong argument. On the other hand, if it can be shown that school had no knowledge of circumstances that created a hostile environment, did know and acted reasonably and appropriately under the circumstances, or that forces outside the school environment caused harm to a student, then the defense may prevail.

Private School Lawsuits: Contractual v. Constitutional Standard of Care

Sexual abuse in private schools

In private schools, academic and conduct issues involving students raise contractual as opposed to constitutional issues.

The relationship between private schools and their students is very different than the one that exists when a student is in a public school. In private schools, the relationship is contractual in nature. The contract is expressed or implied in written documents, such as promotional literature, student applications, and student and staff handbooks. By contrast, the relationship between public schools and students is governed by federal and state statues, such as the Individuals with Disabilities Education Act and Title IX. In public schools, students are afforded constitutional, substantive, and procedural protections that are generally not applicable in a private school. In private schools, academic and conduct issues involving students raise contractual, as opposed to constitutional, issues.

This article will present standards that should be considered by an attorney representing a plaintiff or defendant in private school lawsuits and while assessing the rights of private school students regarding academic matters, discipline, and the right to an education.

Contractual vs. Constitutional Standing

Private school students do not enjoy the wealth of constitutional rights afforded to students in public schools. Public schools are generally treated as governmental institutions, and various statutes protect students against discriminatory actions by governments. The private school, however, is not an arm of the government. Therefore, private schools do not have the same responsibility a public school has to provide a student with a disability an appropriate education, for instance, or to protect a student from harassment, intimidation, and bullying.

Private school students and their parents, however, have come to expect due process if they perceive that their rights have been denied. Relying on the framework of public-sector rights will often focus dispute resolution in a private school on concepts of fairness that mimic due process in public institutions.

Due process means that people will be given an opportunity to tell their side of the story before an authority makes a decision. There is the expectation that students will be treated fairly and will be subject to rules that are fair and consistent for everyone. In the public school sector, this is identified as procedural and substantive due process rights. In private schools, a 1993 case in Louisiana (Ahlum v. Administrators of Tulane Educ. Fund) validated the expectation that rules and processes be clearly stated and that they are neither arbitrary nor capricious.

In a private school, the expectation of fair treatment is viewed in a contractual context: Unacceptable conduct by a student may result in penalties, discipline or sanctions. The language contained in private school promotional materials, admission applications, student and staff handbooks, and other documents forms the basis for such a contract, and the standards articulated in these documents form the basis for determining whether a private school met a professional standard of care. If the language in these documents is concise, unambiguous, and supported by the school’s mission and goals but the student breaches this contract, then the school can act within the confines of the document without retaliation from the student. Whenever these documents create conflicting or ambiguous standards, however, students are likely to contest any discipline on the basis that they have been treated unfairly.

Illustration of Successful Private School Lawsuit

In a prestigious private church-related school, a coach and student were having a sexual relationship. The coach was fired and the student remained at the school. Firing the coach was appropriate and met the school’s standard of care. In the school’s written employment agreement with the coach, there is specific language prohibiting such behavior and outlining the consequence: immediate termination. In addition, the staff handbook clearly identifies prohibited behavior between a staff member and a student. In this situation, there could have been no successful challenge by the coach.

The behavior between the coach and the student was reported, investigated, and found to have merit. He was arrested after admitting guilt. The coach left the school without a challenge. The student, on the other hand, remained at the school. Jessica was a year and a half out from graduation and intended to apply to several colleges based on her excellent grades and competitive success in sports. As soon as the story hit the media, her classmates began harassing the girl, saying, “Why did you ruin Mr. Hank’s career?” “You should have kept quiet. Now look what you’ve done.” “You ought to leave the school.” The talk became so open and abusive that some teachers told the administration that it impeded their ability to teach. Jessica’s continued presence, they maintained, caused such disruption that other students were losing out. Wanting to quiet things down without generating more media attention, administrators met behind closed doors and developed a plan to extract Jessica from the school. Without her, they concluded, the problem would go away and the administration would be able to focus on recruiting other students.

Jessica, meanwhile, continued to be victimized by those she thought of as her friends. The headmaster called Jessica’s father and asked him to come to the office to talk about how the school can curtail the “disruptive” talk among the students and what to do to help Jessica. What parent wouldn’t want to meet with a school official to put an end to his child’s harassment?

Jessica’s father showed up at the headmaster’s office ahead of schedule, anxiously wanting to work with the school to help his daughter. He was invited into the administrator’s office, where he was greeted by the headmaster, the dean of students, and the attorney representing the school. The headmaster told Jessica’s father that she was no longer welcome at the school. She needed to leave, he was told — now, mid-way through the school year — and she would not be allowed to return for her senior year. The headmaster also told Jessica’s father that the school would not write favorable recommendations to colleges. On the other hand, he was told, if he signed a withdrawal agreement immediately, the school would return one half of the year’s tuition, would support her application to another high school for her senior year, and would write favorable letters to colleges later.

Jessica’s father wasn’t prepared to be blindsided. Under the pressure of the situation, he did not consider that the school had very clear policies against student-to-student harassment, intimidation, and bullying. The student handbook clearly prohibited students from intimidating or spreading rumors about one another, making Jessica’s treatment by fellow students in violation of the school’s standard. The student code of conduct called for suspensions of students who engage in such behavior. If the behavior was severe enough or if it occurred a second time, the student could be considered for expulsion. The handbook and code of conduct did not provide for disciplining or expelling the victim of such behavior. Under pressure, Jessica’s father signed the agreement and took his daughter out of the school that day.

He later had second thoughts, realizing that he had been coerced by a school more concerned about its economic future than Jessica’s emotional future. Because this was a private school, the administration had the right to determine whether Jessica would be accepted back for her senior year. However, the school had a duty to follow the professional standard of care it defined in its own promotional materials, student application, and other documents.

Thus, Jessica had been wronged by the school twice — once when it failed to protect her from the coach’s abuse and a second time when it expelled her. She didn’t return, but with the help of an attorney Jessica’s father filed a lawsuit against the school. A jury awarded Jessica $12.5 million in compensatory and punitive damages based on emotional and academic harm. Let’s take a closer look at this case.

Assessing Private School Claims

An attorney representing a plaintiff or defending a private school should follow these steps when assessing a case such as this:

  1. The standard. The standard that must be applied in a private school is derived from the school’s own documents, such as its promotional materials, statements on student applications, teacher and coach handbooks, student handbooks, and disciplinary codes.

The private school in this example was very clear in its promotional materials and student handbook. In its brochure, the school’s stated goal was to promote the well-being of its students and, to that end, it touted a program described as supportive — one that encourages friendships and discourages inappropriate interactions between students such as harassment, hazing, and bullying. The student handbook clearly stated that no student shall spread rumors about another student and that no student shall harass, intimidate, or bully another student. The school provided information about its policy at an assembly at the beginning of each school year, and every student and parent received a copy of the policy. The student code of conduct reinforced this policy, stating that students found to be spreading rumors would be subjected to discipline, including a suspension of up to three days. A student found to be harassing, intimidating, or bullying another student in a way that interfered with another student’s education or school life would be suspended immediately for three days. If it happened again, the aggressor would be considered for expulsion.

  1. Breach of standard. Once it is established that the school has a standard of care, the next element to examine is whether it breached that standard by the actions or inactions of its administration and/or other employees.

Knowing what was occurring among the students will indicate what the school, through its administration, knew and whether its policies were being violated. In this case rumors, harassment, intimidation and/or bullying were known through the reports of the teachers, students, and other observers. Documentation in the form of written reports, disciplinary action taken toward any student, and letters to parents and students all form the basis for analyzing how the school met its duty according to its policy. Did the school appropriately respond to reports of rumors? Did the administration investigate the reports of harassment, intimidation, and bullying of Jessica according to its standard? What did the school officials determine — and did they appropriately and reasonably apply its policies?

  1. Harm to the student. If a private school breached its own established standard, then the next element to review is damage, if any, to the student. This damage can be academic or emotional. If there was no breach of standard, there might still be harm but that harm might have been caused by an intervening variable. The school might successfully defend against harm caused by external factors. On the other hand, if the school breached its own standard, ignored its own policy, or acted outside the contract it had with students and parents, and if it can be argued that this breach caused the student harm, the plaintiff may prevail.

If a student stays home for a period of time because other students’ intimidation, rumors, or bullying made her fearful of going to school, it might be argued that the student was not able to access her education as per her contract with the school. Further, it may be argued that this situation caused damage to the student through the school’s breach of its own contract or policy. When a private school publicly states that it does not tolerate intimidation and that it has a process for disciplining students who engage in such behavior, it has a duty to fulfill that contract. If the school chooses instead only to focus on its concern for negative publicity, an argument can be made that the school focused on the wrong thing, breached its own standard, allowed the harassment to continue, and permitted the student to suffer academically and emotionally.

Summary

The rights of students are different in private schools than in public schools. In private schools, contractual rights prevail, and those rights are determined through explicit and implied agreements in documents produced by the school. In determining the merit of filing an action, plaintiff’s attorney should review these documents and focus on explicit language that leaves no doubt of a contract between the student and the school. When defending against a claim in a private school, defendant attorney should review the language of these same documents and be able to argue that the school did not act in an arbitrary or capricious manner.

Bullying in the US and Canadian School Systems: The Legal Standard

Antibullying Programs

Legal Standard of School Bullying in US and Canada

Bullying Legal Standards

Over the last several years, U.S. states have enacted laws that require public schools to develop policies and procedures to stop bullying.  New Jersey may have the toughest anti-bullying law in the nation, requiring schools to include in their policies that a teacher can be disciplined for not reporting bullying. Like other states, New Jersey requires that administrators report to the board of education and to the state department of education the extent and type of bullying that occurs in their schools and to certify they have specific programs in place to educate students about bullying.

In Canada, each province has passed laws that, in varying degrees, address bullying in public and Catholic schools. Perhaps the best example of protective legislation is Ontario’s Accepting Schools Act, passed in 2012, which was developed in response to several suicides of bullied students. The act defines bullying behavior as including psychological, social or academic harm and harm to an individual’s reputation.

On Sept. 13, 2013, Manitoba passed the Public Schools Amendment Act (Safe and Inclusive Schools), which requires public and private religious schools to create a “respect for human diversity policy” that protects student organizations wanting to create clubs that promote antiracism, respect for people with disabilities, or awareness and understanding of people of various sexual orientations. The new law builds on Manitoba’s 2004 Safe Schools Charter, which says that bullying or abusing someone physically, sexually or psychologically — verbally, in writing, or otherwise — is unacceptable and requires that all schools develop codes of conduct and emergency response plans, and review them regularly.

To understand the law as it pertains to bullying in the United States, let’s look at two important U.S. Supreme court cases.

In Gebser v. Lago Vista Independent School District (1988), the Supreme Court ruled that bullying, in some instances, constitutes sexual harassment. The original case, over an off-campus incident, involved a perpetrator who was a school employee and an underage student victim. The girl brought suit against the school district, but failure to produce reliable proof that the school knew about the incident resulted in a lower court ruling in favor of the school. The fact that someone in a position of authority over the young person constituted harassment, the Supreme Court ruled, but because the school did not know about the bullying or harassment, it could not be held liable. Had it known and done nothing to stop the abuse, the school could have been sued, with particular defendants named in the case.

This ruling should send a clear message to schools that, in some cases, bullying is legal harassment, and that suits can be brought forward and won on a preponderance of the evidence if it is shown the school or school officials were negligent in bullying cases — even in off-campus incidents.

In Davis v. Monroe County Board of Education (1999), the Supreme Court determined a school board was liable for student-on-student harassment when the school acts with “deliberate indifference” toward the bullying act. This court essentially concluded that the harassment in this case was so severe, it prevented the student’s access to an equal opportunity in education or benefits. While this decision provided some legal framework for a school board’s liability, the court reminded schools that this framework did not exonerate them from the responsibility of doing the right thing.

These two cases teach us that bullying constitutes harassment when schools either know about the bullying and do nothing to stop it, or allow an incident of bullying to get so severe that it gets in the way of a student’s right to a free public education and opportunity. In layman’s terms, negligence is knowing what to do to prevent a problem but choosing not to act. Adults, in their standing in the school, have a responsibility and an obligation to kids, parents, and the community to stop any type of harassment or bullying whenever they see it.

The underlying theme is that administrators and teachers are responsible for what happens in their schools and that they have a moral, ethical, and legal responsibility to do something about bullying whenever it occurs. The bottom line is: When an incident of bullying is brought to their attention, do they sweep it under the rug or do they deal with it and punish the offenders? How well they can honestly answer this question will determine whether their argument will stand up in court or not.

What is Bullying?

There are standards that an event must meet to constitute bullying that can result in legal action. This is the general rule or “harassment test” that determines whether a student or another person is guilty of harassment. The bullied student must be identified in a specific group, identified by gender, race, or disability, and the harassment must be based on discrimination law regarding the specific group. The harassment must be so severe that it hinders the student from carrying on in a manner that would allow him or her to continue their education or engage in certain pursuits without the fear of being harassed. In a bullying case, it must be shown that a school official had knowledge of the harassment, did nothing to end it, and did not implement its student code of conduct to discipline the perpetrator or remove them from the victim — thereby allowing the harassment to continue.

There is no legal definition of bullying. In the school context, bullying can be a severe single occurrence intended to hurt someone physically or emotionally. More often, bullying is a series of events that, over time, creates an ongoing pattern of harassment. If bullying cannot be controlled in school — if we can’t stop the bully — then, typically, civil charges can be filed against the bully. These charges are harassment or harassing communications, which are misdemeanor cases.

In the United States, laws and terminology differ from state to state, but if a child has been threatened, the bully may be charged with “threatening behavior.” If a child has been sexually assaulted, the bully may face an “indecent assault” offense. If a child has been physically assaulted, then the bully may be charged with “criminal offense of assault.”

In Arizona’s Protection from Harassment Act, two criminal offenses could be applicable to bullying: harassment and the offense of putting people in fear of violent acts. In this circumstance, prosecution cannot proceed unless the harassment has occurred more than once.

While there is no offense termed bullying under the Canadian Criminal Code, many behaviors or incidents characterized as bullying fit the definition of criminal offenses. These include, for example, criminal harassment (CCC 264), uttering threats (CCC 264.1), assault (CCC 265 & 266), and sexual assault (CCC 271). Perpetrators may face juvenile or adult sentencing, depending on the circumstances of a crime.

In numerous situations, students have been charged for their role in bullying, but the lack of a legal definition of bullying defines a key difficulty in criminalizing bullying: What standard should be used? Does the state or province base the charges on the nature of the bullying itself — or on the response of the victim? In other words, are charges brought, for instance, under a criminal stalking law against when student who follows and relentlessly harasses another? Or is the student charged with criminal harassment only when the bullied student becomes sufficiently fearful for her life?

Are Antibullying Programs Working?

School should be a place where children feel safe and secure — a place where they can count on being treated with respect. Even with new canned programs and tolerance efforts by schools, however, the unfortunate reality is that many students are still targets of bullying. School personnel continue to minimize or underestimate the extent of bullying and its academic, physical, and emotional consequences. As a jury in Indiana concluded this week, bullying is often tolerated or ignored. In this case, a 15-year-old girl arrived at school one morning to find pictures posted around the school that had been edited to show her in a sexually suggestive manner. The girl’s family claimed that the school district was negligent in how it handled the incident and failed to offer proper counseling to the girl as she struggled to recover from the incident.

Ask junior high school students if they have witnessed bullying or have been victims of a bully over the past several weeks, and you will find not only that bullying is still occurring but also that it has been taken to the cyber playground — where it is more difficult to observe and control.

Antibullying programs that are now common in schools may be having the opposite of their intended effect, according to new research from the University of Texas–Arlington. In a study published in the Journal of Criminology, researchers found that students at schools with anti-bullying initiatives are actually more likely to be victims of bullying than students who attend schools without such programs. This raises the question as to whether bullying behavior has changed in schools. The authors speculate that while bullies may have learned a variety of antibullying techniques, their dominant social status may compel them to ignore the problem-solving skills they have learned through antibullying programs. Thus, they suggest, prevention strategies may be more effective if they are developed around the bully-victim dynamic.

To be sure, antibullying programs have increased awareness of the problem. Increases in both the incidence of the reporting of bullying and media accounts of bullying-related litigation suggest that we as a society have taken note of the harmful effects of bullying. And this is a good thing. From awareness comes action — hopefully, that changes the cultural landscape of our schools so that all students feel welcome and safe no matter their sexual orientation, disability, national origin, or other things that might cause a bully to prey on another. A welcoming community that accepts diversity and teaches empathy is, in my opinion, what is necessary in our schools if we are to protect children from the harm of bullying.

Who is the bully?

Today’s bully isn’t just the schoolyard punk who shoves other kids around. It’s the seventh-grade girl who tells lies about a classmate to keep her out of the “girl group.” It’s the handsome student council president who pushes a wheelchair-bound child into a wall. It’s the 10th grader who says something on Facebook about someone that she wouldn’t have the guts to say to her face. It’s the aide on a school bus who sexually molests a 4-year-old while sitting next to him. It’s the teacher whose punishment of a student doesn’t fit the “crime.” Bullies can be athletic, academically smart, attractive, and cunning. School administrators don’t see them in the crowd. They blend in and work under the radar. They bully when no one is looking and they intimidate their victims, who are too afraid to tell.

Bullying a Public Health Issue

Bullying in school is a significant public health problem. Physical aggression has been linked to an increase in injuries, violent crime, school adjustment problems, substance use, and mental health problems among kids. The 1998 U.S. Health Behavior in School-aged Children survey first identified bullying and victimization as significant problems, noting that victims are more likely than kids who have never been bullied to perpetuate the cycle because they often perceive violence as a solution to their problems. This prompted an increase in school-based bully-prevention efforts.

The recent suicides in Canada of Amanda Todd in British Columbia and Rehtaeh Parsons in Nova Scotia underscore the point that, unfortunately, teens will take desperate measures when bullied, harassed, and humiliated by peers. While there is a strong association between bullying and suicide, other public health influences, such as depression and delinquency, contribute to suicide-related behaviors. This understanding led mental health experts writing in the Canadian Medical Association Journal to call for school-wide interventions after a student suicide rather than focusing prevention efforts on the close friends of the suicide victim. The journal’s editors concluded that bullying among youth is a significant public health problem and that public health strategies can be applied to prevent both bullying and suicide.

Where do we go from here?

The school bully has been around forever. The stereotypical bully — the schoolyard tough guy who is quick to fight, intimidate, and threaten for his own gain or to look good in front of other kids — has become so much a part of the school environment that, in some situations, school administrators consider this intrusion into the school culture as the norm. This response is unfortunate in light of today’s understanding about the scope of bullying and the psychological damage it inflicts — up to the point of suicide.

There are lots of programs — some effective and some not so effective — that attempt to change mean kids into kind helpers. But these, in my opinion, don’t change the core of an individual who just doesn’t have empathy for another. Laws and school policies, training and punishment for bullying and lawsuits might cause students and school districts to sit up and take notice. We need these elements if we are to continue moving in the direction of creating schools where kids feel safe and can learn without looking over their shoulders for bullies.

School Liability under Section 1983

school liability

School liability under section 1983

Schools have a duty to protect students from harm, including the harm inflicted or created by its own staff. While acts by a staff member resulting in injury to a student generally fit into the category of negligence, a teacher or an administrator as a state actor can generate a state-created danger.

The difference with state-created danger, as opposed to negligence, is its application under the 14th Amendment of the Constitution and Section 1983 of Chapter 42 of the United States Code. School officials can be held responsible when they knew of impending danger, were recklessly indifferent to it, and through the authority vested in them by the state (public school board of education), knowingly created a dangerous environment that led to an otherwise preventable injury. Liability under Section 1983 can be imposed on a school district if a student’s deprivation of rights is consistent with a school or district’s custom or policy, or if it results from an act of those who are ultimately responsible for setting policy in that area of school business (see City of St. Louis v. Praprotnik, 485 U.S. 112 [1988]).

Section 1983 has been used to seek monetary damages for violations of what courts refer to as bodily integrity, which is protected by the 14th Amendment. The 14th Amendment’s Due Process Clause prohibits “unjustified intrusions on personal security.” Most cases involving bodily integrity in schools concern sexual molestation, although excessive corporal punishment may also implicate this right. Educators who deliberately cause serious harm to a student, such as in the case of a coach who put a student’s eye out by hitting him with a metal object (Neal ex rel. Neal v. Fulton County Board of Education, 229 F.3d 1069 [11th Cir. 2000]), may be sued under Section 1983 for due process violations if one or more of the conditions below are met.

Section 1983 is used to bring suit only against individuals whose actions are attributable to the state, and cannot be employed against a private wrongdoer (DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 [1989]). Minor injuries that result from a teacher deliberately hitting a student — or even serious injuries that result from a teacher’s own negligence or deliberate indifference — do not violate the Due Process Clause. In one case, for instance, a court ruled that a teacher’s repeated humiliation of a student was not a due process violation (Costello v. Mitchell Public School District 79, 266 F.3d 916 [8th Cir. 2001]). Another court, however, has said that there may be a due process violation when an educator’s deliberate action “shocks the conscience” and increases the danger to a student. In that case, which involved a violent, 16-year-old special education student who had threatened to kill himself, school officials sent the boy home without notifying his parents (Armijo Chavez v. Wagon Mound Public Schools, 159 F.3d 1253 [10th Cir. 1998]).

Conditions for liability under Section 1983

A school district and/or its officials or employees may be held liable under Section 1983 if any of the following conditions are met:

  • The wrongdoing was undertaken pursuant to a custom or a formal policy of the district, the individual who committed the wrongful act was an official with final policymaking authority, or an official with final authority ratified a subordinate’s wrongful act (Gillette v. Delmore, 979 F.2d 1342 [9th Cir. 1992]). As an example, failure to have a formal policy for dealing with sexual harassment might expose a district to Section 1983 liability because the lack of a policy indicates a custom of tolerating sexual harassment (Doe v. Estes, 926 F. Supp. 979 [D. Nev. 1996]).
  • A school official with the authority to take corrective action had actual notice of wrongdoing under Section 1983 and was deliberately indifferent (Gebser v. Lago Vista Independent School District, 524 U.S. 274 [1998]). This Title IX standard can be applied in Section 1983 cases as well. Inadequate hiring policies (Doe v. Hillsboro Independent School District, 81 F.3d 1395 [5th Cir. 1996]) or training of employees (City of Canton v. Harris, 489 U.S. 378 [1989]; Doe v. Estes, 926 F. Supp. 979 [D. Nev. 1996]), for instance, may be viewed as forms of indifference.
  • A school district’s action either exposed students to dangers that they otherwise would not have faced or it increased the risks associated with existing dangers (Johnson v. Dallas Independent School District, 38 F.3d 198 [5th Cir. 1994]; Leffall v. Dallas Independent School District, 28 F.3d 521 [5th Cir. 1994]). The mere fact that a student’s rights were violated at school, or that a violator was a teacher, does not mean that a state-created danger exists. Rather, it must be shown that the school exposed a student to people with a known propensity for harming the plaintiff, or that it provided such people with an opportunity to injure the student (Plumeau v. Yamhill County School District, 907 F. Supp. 1423 [D. Ore. 1995]). Assigning a student of known violent propensities to the class of an inadequately trained teacher, for instance, is the kind of step that could lead to liability (Compare Cornelius v. Town of Highland Lake, 880 F.2d 348 [11th Cir. 1989]).

Plaintiffs who allege state-created danger must demonstrate four elements in a Section 1983 claim:

  1. A relationship existed between the school and the student.
  2. The harm to the student was ultimately foreseeable and fairly direct.
  3. The school willfully disregarded the student’s safety.
  4. The school used its authority to create an opportunity that otherwise would not have existed for injury to occur.

Foreseeability and willful disregard

In school cases, plaintiffs’ claims usually center on the failure of a school district to prevent dangerous situations that adversely affect a student’s right to be protected from harm. Teachers, principals, and other staff, by the nature of their relationship with students, have an affirmative duty to protect students in dangerous situations. As an example, if a principal or other school official charged with the responsibility of teacher supervision receives a complaint from a parent, a student, a teacher, or other staff member that a teacher is yelling at students, hitting them on their knuckles with a ruler, pushing their heads into their desks with force, pinching them, or abusing them in other ways, the school official has an affirmative duty to investigate quickly and thoroughly, and to take steps to end the abuse. Any reasonable school administrator would foresee harm to students if the behavior continued. Not taking complaints seriously or conducting only a minimal investigation may be considered acting with deliberate indifference to the mistreatment of children, thus creating a dangerous environment that can lead to a lawsuit under Section 1983.

Another hypothetical case illustrates another example of a possible Section 1983 claim. An experienced special education teacher was responsible for the education, safety, and welfare of a class of eight children with disabilities. These students had expressive language disorders — rendering it impossible, or at best unlikely, that they would be able to verbalize to anyone that their teacher was abusing them. Two teacher aides, recent college graduates with teaching degrees, assisted the teacher in the classroom. The teacher aides saw the teacher physically abuse the students, but did not report the teacher’s actions to the appropriate law enforcement agency or the state agency responsible for the protection of children. The aides had a legal duty to protect the students from harm, but failed to exercise that duty; as such, the school administration had no notice that it was occurring. When the abuse finally came to light by a parent who asked about bruises on her son, the teacher aides admitted to having witnessed the abuse but said they were afraid to report the teacher to the principal. They also denied knowing that they had a legal responsibility to contact authorities outside of the school.

Though the administration had no notice that students were being mistreated, the situation may be viewed as a failure to provide adequate training. Through its administration, the school acted indifferently to student abuse when it did not ensure that the aides understood their duty to report abuse when they see it. This failure to train allowed a situation that otherwise would not have been present to persist — resulting in continual harm to the students.

Any reasonable school administrator would foresee that if the abuse in these examples went unchecked, the harm to students would be fairly direct. In both cases, it may be determined that the school acted in willful disregard for the safety of the students. In the first case, had no or minimal investigation taken place, the school could be found to have responded unreasonably to the danger students faced. In the second case, no training was provided that could have prevented a dangerous situation.

Student on student abuse under Section 1983

Up to now, we have focused on the actions of school personnel in describing scenarios for Section 1983 liability. In 2009, the Supreme Court held in Fitzgerald v. Barnstable School Committee that a plaintiff can bring a claim for student-to-student sexual harassment under Section 1983 (Fitzgerald v. Barnstable School Committee, 555 U.S. 246 [2009]). The case details of paint a disturbing picture of elementary school-level, student-on-student sexual harassment. A kindergarten girl told her parents that each time she wore a dress on the school bus, a third-grade boy would coerce her into lifting her skirt or pulling down her underpants and spreading her legs. The police, however, were unable to corroborate her story and did not bring criminal charges against the boy. The school’s own investigation ended without disciplinary measures against the boy. Subsequently, the boy continued to bully the girl.

The justices ruled unanimously that Title IX protections did not preclude Section 1983 liability. Thus, the Barnstable case opened the door for students who are bullied and harassed to hold individual school officials liable under Section 1983, for permitting sexual harassment by other students.

Damages under Section 1983

Students suing under Section 1983 are entitled to recover only nominal damages unless they can show actual loss (Carey v. Piphus, 435 U.S. 247 [1978]; Memphis Community School District v. Stachura, 477 U.S. 299 [1986]). The damage award is not based on the value or importance of the violated right, but only on the actual injuries suffered. Students may also be able to obtain punitive damages against individual defendants who act with malice. Punitive damages against a school district itself are not permitted because the Supreme Court has reasoned that punitive damages against a government entity would punish taxpayers, and that only individuals — not government entities — can act with malice (City of Newport v. Fact Concerts Inc., 453 U.S. 247 [1981]).

It must be emphasized, however, that liability can be imposed on a school district if a policy or custom results in deprivation of rights, or if the acts of the highest officials responsible for setting policy in the school deprives a student of his or her due process guarantees (City of St. Louis v. Praprotnik, 485 U.S. 112 [1988]). As such, even with limitations on damages, students who win Section 1983 lawsuits can sometimes recover large awards.

What attorneys should review

For both defendant and plaintiff attorneys, the question to answer in such cases is: Did the school, through its administration and/or other employees, act affirmatively and with deliberate indifference in creating, or enhancing, a foreseeable danger to the student, leading to the deprivation of constitutional rights under the 14th Amendment?

If the school had culpable knowledge, and if its administration and/or other employees, conducted themselves in a way that affirmatively placed the student in a position of danger, a Section 1983 claim may be relevant. For liability to exist, the situation created by the school must be dangerous; the school must know that it is dangerous; and it must have used its authority to create an opportunity that would not otherwise have existed in which the student suffered harm.