September 24, 2017

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.

Addressing Sexual Harassment in Schools to Avoid Lawsuits

School Sexual HarassmentAn elementary school principal claimed that a first grader violated the school’s sexual harassment policy. The boy’s crime? He was sitting behind a female classmate on the floor and put his fingers inside the waistband of her pants and touched her skin. He was accused of sexually harassing a classmate and suspended from school for three days and the school contacted the police, Department of Social Services and the District Attorney’s office.  The boy’s outraged parents sued the city and the school for not handling the situation appropriately and it ended up costing the school $50,000 in legal fees — plus insurance payouts totaling nearly a quarter million dollars.

The city settled the case and as part of the settlement the city agreed that the superintendent would approve appropriate training for the school’s principal who was overzealous in applying the school’s sexual harassment policy. The superintendent, meanwhile, was underzealous about training and supervising the principal. The school may have had a reasonable sexual harassment policy, but the principal might not have had the right understanding of the policy as it applied to six-year-olds to reasonably implement it. The result was the expenditure of a lot of money and time when the principal could have dealt with the situation simply by having a “teaching moment” discussion with both students, especially the six year old explaining that what he did was inappropriate and ask the parents to follow up at home.  Children this age don’t even know what sexual harassment is.

In another case, a school was ordered to pay $68,000 to a former student for failing to take reasonable actions to stop other kids from harassing him over their perception of his sexual orientation. The school disciplined the students and required them to attend counseling, but the harassment continued. The court determined that even though the school made some effort to end the harassment, its actions were ineffective.

Schools need to take reasonable and effective measures to protect students from harm. The points of contention were whether school officials responded quickly and adequately to protect the student from harm. Was the school’s response reasonable? The school thought so because it followed the student discipline code. Was it effective? When the harassment continued, the school didn’t modify its approach. Thus, the court concluded, the faculty’s actions were not only ineffective but also not reasonable. This school may have been zealous in its attempt to discipline students — but was underzealous in its determination to appropriately resolve the issue and protect the student from harm.

A teacher in another case was accused on several occasions of inappropriately touching students. Investigation by the district revealed nothing of a sexual nature. Later, the teacher asked a student to report to his office. There, the student claimed, the teacher sexually touched her and another student, who was the plaintiff in this case.

An investigation by law enforcement and child services personnel into this incident revealed that this teacher had, in fact, victimized several other students. The teacher was incarcerated for 10 years — but the school district was found not liable for the educator’s actions, either under Title IX (see our previous article on Title IX) or Section 1983. The court could attach no liability for the Title IX claim because school officials had no actual knowledge that this teacher had been engaged in sexual misconduct. Addressing the Title IX action, previous reports about touching had been investigated and resolved.  The school determined that there was no merit to the reports.  Therefore, the school could claim it had no actual knowledge for sexual misconduct. The court ruled that the Section 1983 substantive due process claim would not survive the deliberate indifference test because there was no knowledge of sexual misconduct and there was no reckless disregard for student safety. The school’s decisions about the teacher’s status after the initial investigation were based on what it knew, the court ruled, so those decisions were appropriate under the circumstances.

A school can never know everything that goes on between teachers and students. Could the school officials have watched the teacher more carefully following the initial complaint of him touching students? Yes, and that would have been an administrative decision. Was it mandatory? No. Would it have curtailed his inappropriate conduct with students? Maybe. Even with closer supervision after the first complaint, however, many teachers just don’t act in a sexual way with students in front of administrators or other teachers.

Questions regarding Sexual Harassment in Schools

The questions in all three of these cases are:

  • Did school officials act reasonably based on what they knew at the time?
  • Were their actions effective in ending the harassment and protecting the student from harm?

If, after a reasonable investigation, there is a determination that an observation or complaint does not constitute sexual harassment and the administration responds on the basis of that determination, then the school may withstand an allegation that it acted deliberately indifferent. On the other hand, if it can be demonstrated that there was no investigation, that an investigation was not reasonably conducted based on what was known, or that the investigation determined that sexual harassment took place but the school failed to take any or effective action, then the school might not withstand an allegation that it acted deliberately indifferent.

The administrative test, therefore, is:

  1. Was there an observation or complaint of sexual harassment?
  2. If so, did the school administration investigate the issue?
  3. Was the conclusion reasonable, based on the information learned from the investigation?
  4. Did the school administration take appropriate action to end the harassment?
  5. Was the action effective in ending the harassment?

Is it reasonable for school administrators to conclude automatically that a six-year-old’s way of touching another student is sexual harassment? Is it enough for a school administration only to suspend a student who harasses another over his sexual orientation if the harassment continues? Being overzealous or underzealous can cause problems for schools if lawsuits are initiated. In such cases, a careful review and assessment by attorneys representing both the plaintiff and the defendant can be an effective way to resolve disputes.

Why Schools Lose Lawsuits Over Bullying

All Sawyer wanted to do was to protect himself from bullies and the mean kids in middle school. He wrote to his guidance counselor, “I would like to let you know that the bullying has increased. I would like to figure out some coping mechanisms to deal with these situations, and I would just like to put this on file so if something happens again, we can show that there was past bullying situations.”

Three months later, he was punched so hard that he now is a paraplegic.

I’ve seen this so many times in the work I do. Kids are crying out for help: “How can I get the bullies to go away?” A lot of these children end up hiding out and become socially isolated, afraid of being bullied or harassed. Unfortunately for Sawyer, the school didn’t listen to his cry for help — and now the school is paying the price.

I was the expert witness on this case, and I can tell you that $4.2 million is no compensation for the life Sawyer will now live. If there’s one thing I want schools and parents to learn from this, it is that when kids ask for help, there is a reason. Follow up and find out what’s going on. Listen to your students and kids when they come to you.

When I presented at a law conference a few years ago, I brought with me a student who was the victim of bullying. Patrick was beaten and taunted in school for months — and nothing changed even after talking with his guidance counselor several times. We spoke before a room full of school administrators, teachers, and lawyers. After his heartfelt presentation, one of administrator asked, “If there is one thing that you would have liked your school to do differently, what would it have been?”

He said, “Listen. Listen when a student comes to you and says he is being bullied. That would have made the difference for me.”

A recent news report told the story of a principal who didn’t follow up when a parent came to him to report that his daughter was being bullied. A few days later, several of her antagonists severely beat her. When asked why he didn’t follow up when he knew about the bullying, the principal said, “It slipped my mind.” Having been a principal, I know that an administrator’s day can be extremely busy. But student safety is a top priority. A principal can’t fall back on the excuse that he or she forgot to follow up.

Lawsuits on the rise

More and more, bullying cases have parents turning to courts and schools defending their actions. Parents in Texas, convinced their 13-year-old son’s suicide was the result of daily bullying by peers and inaction on the part of school officials, filed a $20 million federal lawsuit against the school. This is but one of a growing number of civil court actions being taken against schools for allegedly ignoring bullying.

The number of lawsuits is on the rise several reasons: increased awareness, new standards, more experts in the legal community. Today, people are more likely to know about bullying and feel that they have to report it, and when kids are injured or commit suicide, the process of a lawsuit often brings out answers. High-profile cases around the country have caused states to strengthen their existing anti-bullying laws or to pass new laws. This has placed a legal focus on the issue of bullying.

Parents who litigate against the school allege that because a school did not follow the professional standard of care, their child was the victim of bullying. When a lawsuit is filed, the school takes a close look at its policies and procedures. It is also forced to examine what it knew about the alleged incidents, how it responded, and whether its response was appropriate. In a sense, this is a good exercise for a school — but being forced to do so in defense of a lawsuit shouldn’t be the norm. Schools should be examining these things routinely as part of a continual process of developing a climate that doesn’t accept bullying and that makes kids feel safe and secure.

As an education expert who has provided consultation and expert testimony on bullying cases around the country, I have reviewed school policies and what the administration knew about a bullying situation. In many situations, I have found that, under the circumstances, the school met the professional standard of care. Often, a school doesn’t know about bullying instances. It can’t respond if it doesn’t have that knowledge. If the school has an appropriate antibullying policy that meets professional and legal standards — and if the school follows its policy in light of what information it has — then, more than likely, the school will survive a lawsuit.

If, on the other hand — as I have testified to in many cases — the school administration had information about a bullying situation, knew that a bully’s behavior was problem but didn’t follow its own policies or the professional standard of care under the circumstances, and a student was injured, then the plaintiff will have a strong position in a lawsuit.

Attorneys should review these cases with an education expert, who will:

• Review the school’s policies to determine whether they meet professional and legal standards of care

• Review the files of the bully and the victim to determine whether anything in the record should cause a reasonable school administrator to have concern that the bully might injure the victim, and to determine whether the victim asked for help

• Render an opinion as to whether the school met the professional standard of care and, if not, whether any breach of that standard led to the student’s injury

What does this teach us?

Sawyer’s lawsuit reminds us that bullying can be costly. Sometimes, costly settlements make us realize that we can’t be complacent and can provide important lessons.

The lessons for schools:

• Continuously work toward developing a school climate where diversity is welcomed, tolerance is part of the culture, and where kids feel safe

• When a student says he is being bullied, follow up and don’t let it sit on your desk while attendance forms are filled out — the very life of a student could be in the balance!

Lessons for parents:

• Be aware of any behavior in your child that might be different than usual; your child might be the victim of bullying

• Get whatever information you can, and call the school

• If your child is asking for help, contact the school to be sure he’s getting it

Lesson for kids:

• When you are being bullied, ask for help from a teacher or counselor — and if you don’t get it, go to the principal and also let your parents know what’s going on

• Check out the numerous websites (include a hyperlink to the book) dedicated to helping kids who are victims of bullying

• Above all, don’t despair — there’s lots of help out there!

We all need to be more diligent when it comes to eliminating the scourge of bullying. Schools, develop a climate of acceptance and one where bullying is never allowed. Parents, be aware of the signs that your child might be bullied or might be the bully. Kids, if you see someone else being bullied, stand up for that person and don’t be a bystander. Working together, we can reduce the toll bullying takes on our children and on society.