April 23, 2017

Student Safety: Screening and Background Checks for School Volunteers

student safetySchools, after-school programs, summer camps, sunday schools, daycares and other agencies that supervise children are responsible for student safety of children in their care. Failing to apply the same attention to ensuring that non-licensed individuals, such as volunteers, meet the same standards as teachers and other paid staff can place students — and ultimately a school, district, or other agency — at risk. When the history of a volunteer or chaperone on an overnight school trip includes something that would raise a red flag but the school is unaware of it, school officials are not able to make an informed decision about whether or not that person should be allowed to interact with children.

The risks of not adequately screening individuals who have direct contact with children have been apparent in cases for which Education Management Consulting, LLC, has been engaged to review and provide expert witness services. Many such cases involve harm, injury, negligent supervision and even sexual abuse of children by volunteers. At times, our reviews of school policies, personnel records, and testimony have determined that failure to conduct a reasonably appropriate background check and screening was the proximate cause of harm to children.

In one such case, the school argued that there was no state requirement for a district to apply the same level of scrutiny to volunteers as when it hires teachers. The school had conducted a standard criminal background check, but unlike the standard it applied to teachers, the school did not conduct interviews with supervisors at past volunteer posts. The volunteer was allowed to participate in a classroom on a regular basis. Over time, he developed an inappropriate sexual relationship with one of the students. A case review discovered that he had served as a volunteer in another school district, where he was told not to come back because the administration was uncomfortable about his interactions with students. The volunteer had listed the prior school and his supervisor on his volunteer application, but the new school did not contact the prior school for a reference. Had the school done so, it likely would not have compromised their student safety and would have heard about the previous school’s concerns and rejected his volunteer application.

 

State Requirements for Volunteer Screenings and Background Checks

Background checks and screenings of teachers are required in every state, and school districts have developed procedures to provide reasonable assurance that only teachers of high moral quality come in contact with children. When a background check reveals that a candidate was convicted of domestic violence or another crime against a person, the school may be prohibited from hiring that person.

Conducting background checks on prospective teachers as a student safety measure has been established in the field of education administration for decades. However, it wasn’t until 2000 that states began to pass laws addressing background checks on volunteers, and to this day, a patchwork of legal requirements exists. New Mexico, for instance, mandates background checks on all school volunteers, while New Jersey “allows” but does not require boards of education to conduct criminal record checks on volunteers. Volunteers in Florida schools are screened only for criminal histories logged in the state of Florida but not in other states. When state law is less strict for volunteers than it is for teachers, schools are free to adopt their own policies that are more stringent.

National guidelines developed by the American Academy of Pediatrics and the National Association of School Nurses encourage schools to conduct criminal background checks on all volunteers. To help schools implement this guideline, Texas Education Code allows a school district to obtain from any law enforcement or criminal justice agency all criminal records that relate to a person who serves as or has applied to be a school volunteer. In Pennsylvania, schools must check volunteer applicants’ backgrounds through the state Department of Human Services and Pennsylvania State Police, and are also required to obtain a federal criminal history. Seattle Public Schools screen all volunteers who work directly with students through the Washington Access to Criminal History background check system — the same process used for teachers and other licensed staff — and conducts reference checks. Volunteers are allowed to begin service before the screening process is completed, provided there is proper supervision. The volunteer’s continued involvement with the school depends on the results of the check.

 

Student Safety in Specialized Programs and Placements

While schools have a responsibility to protect student safety on campus, on school-sponsored trips, and at school activities, are they also responsible for the protection of students who attend programs at a school that is not under its direct control, such as a special education or vocational school? Should the school that assigns students to such programs assure that the employees and volunteers at the receiving school meet certain screening standards? If a school allows a private after-school program to operate in its gym, should it assure that volunteers in that program meet the same standard as if they volunteered in the school?

These are among the many questions in cases for which we have been engaged. Every case is uniquely different, and an analysis leading to an expert opinion can be very complex. In each case, however, the ultimate standard of professional care is that the school, through its administration, has a responsibility to act appropriately and reasonably to protect the health, safety, and well-being of its children. It is reasonable for the home school to expect that an external program or service will effectively screen employees and volunteers who come in contact with its students.

Examining one of our cases involving a child with a disability will help to illustrate. A high school student was placed in a class for students with cognitive and physical disabilities. As she got older, it was necessary for the school to deliver vocational training services through a separate agency. School personnel, the student’s parents, and others involved in this decision understood that the student demonstrated inappropriate, sexually oriented behavior toward peers and needed careful supervision wherever she was educated. This also required that those working with her at the school, including teachers and volunteers, were appropriately screened. Knowing of her propensity for this type of behavior should have caused her school to consider whether those she would come in contact with at the new placement would allow or encourage this behavior. Shortly after the student was placed at this program, and in my opinion because she was not adequately supervised, an adult volunteer engaged in inappropriate sexual behavior with her. As part of the overall review of the case, the personnel file of the volunteer was examined and it revealed that he was not screened by the vocational program administration — in my opinion, a failure of the home school to meet the professional standard of care. Teachers at the program needed to be licensed, which required a criminal background check. Volunteers, however, were allowed to work in the program without a background check. It would have been reasonable for the school sending its student to the vocational program to inquire about the program’s policy regarding background checks for volunteers and then determine whether the student would reasonably be protected from harm.

 

Student Safety and Standard of Professional Care

When reviewing cases similar to those discussed above, we consider state law and school district policy as the standard, and then consider the overall responsibility of a school to protect its students. This is the overriding standard of professional care. If an adult staff member or volunteer who was not adequately screened should sexually assault a student, then an argument may be made that the proximate cause of the child’s injury was failure on the part of the school to fully investigate the person’s background in order to reasonably assure the protection of students. On the other hand, if the school followed state law and its own policy, applying the same standard to approving volunteers as it did for teachers and other staff, and yet an inappropriate relationship developed because of other circumstances, then it can be argued that the screening process was appropriate.

Does everyone in a school or other agency who has contact with children have to be screened? And what is an appropriate and reasonable level of screening? The distinction that should be made is whether a person is a visitor to a program or a volunteer who has a defined regular role in it. Parents have the right to visit their child’s school and to observe their child in class. They can have lunch with their child and attend classroom and school events. In this context, the parent is a visitor, and complete background checks are not required. When a parent or other person takes on a regular role in the classroom or supervises on an overnight class trip, more scrutiny is required. Providing assistance in these ways shifts the person’s classification from visitor to volunteer. If the person is in the school on a regular basis and others expect to see the person frequently, then he or she is considered a volunteer, and the school must make an informed determination as to whether or not to allow the person to interact with students.

Schools are held to strict requirements when hiring licensed school personnel. Applying the same standard to the screening of volunteers is one way to protect children from harm and keep them safe.

In Loco Parentis: Duty of Educators and Professionals in Residential Programs for Children

Educator DutySome of our most vulnerable children are relegated to a life away from parents, family, and their school to live where other adults take the place of their parents and are responsible for their custody or care – legally defined as in loco parentis. This occurs when children are placed in residential centers for the treatment of mental illness, schools for the deaf and blind, or similar facilities for children who require extensive medical care and management.

In my September 2015 article, I discussed parental and professional standards of care when considering supervision of children in residential placements. The reasonable and prudent parent uses judgment in making decisions about their children’s care. Parents usually make decisions carefully, weighing the benefits and potential risks to come to a sensible decision that is in the best interest of the child. When professionals care for children, they have a duty to meet the same standard, but they also have a higher duty to meet the standards of a reasonably prudent professional. Professionals such as teachers, program administrators, psychologists, counselors, doctors, and nurses have the legal responsibility to exercise the level of care, diligence, and skill prescribed in the code of practice of their profession, the legal requirements of the government, and in the policies of the residential program.

When a child has a condition or disability that is not common and when the child’s disability cannot adequately be addressed in the local school, community, or at home, placement at a specialized facility to meet these needs may be required. These placements provide educational, medical, and residential programs. Staff who supervise children where they live act in place of parents. These adults are expected to protect the child from dangers and prevent the child from engaging in harmful or irresponsible behaviors. This responsibility fulfills the reasonably prudent parent standard of care. In addition, the care of these children extends beyond the simple need to house them, and meeting the professional duty extends in tandem with their needs and disabilities.

 

Duty Under In Loco Parentis

In a residential facility, in loco parentis refers to how a supervisor or caregiver who directly oversees the actions of a child deals with the child’s conduct. This is the same as when a parent sets boundaries for his or her child, then instructs, guides, or disciplines the child. In a residential setting, the person who is standing in place of the parent holds authority over the child, acting in loco parentis.  Elements of in loco parentis define the duty that educators and caregivers owe to their students.  This includes principles of negligence and the duty to anticipate foreseeable dangers and take reasonable steps to protect students from those dangers.

When an adult acting in loco parentis steps over the line with regard to the role of a reasonably prudent parent, the residential facility may be liable for the adult’s actions. As an example, a caregiver’s use of undue force that would fall under the definition of assault and battery may be cause for liability if the child is injured. If a child assaults and injures another child during a moment of inadequate supervision, this also may also be a cause for liability. The Ohio Supreme Court has stated that although a teacher may stand in loco parentis with regard to enforcement of authority, the teacher does not stand in loco parentis with regard to one’s negligent acts and thus is not accorded the same tort immunity given parents (Baird v. Hosmer, 46 Ohio St. 2d 273, 75 Ohio Ops. 2d 323, 347 N.E. 2d 553 (1976)). In the same way, while a person in charge of a child in a residence is considered acting in loco parentis, that person is not safe under tort immunity if he or she failed to act as a reasonably prudent parent.

 

Professional Standard of Care

A residential program becomes that child’s world. All his or her needs must be met, including shelter, food, medical care, counseling, and recreation, just as if the child was living at home and attending school. In this all-inclusive setting, there are people trained as professionals — teachers, counselors, psychologists, and supervisors — who have total responsibility for the health, safety, and well-being of the child. These programs must have adequate plans for meeting the needs of the children in their care, and these plans should be shared across disciplines and departments.

For example, if a student has demonstrated behavioral problems while on a school trip, that information should be provided to the adults who are in charge in the residence and are acting in loco parentis. This process is similar to a schoolteacher informing a parent at home about a child’s behavior. The intent is to work together with the parents in the child’s interest. When this system is nonexistent or breaks down in a residential setting, resulting in student injury, the program may be open to liability. If a teacher observes a student running away during a class trip but fails to share that information with those in charge of the residence, the agency might be liable if the child wanders off and is injured. The agency had knowledge of the student’s behavior, failed to report it to those in charge of the residence and, overall, failed to enact a cross-departmental plan to protect the child.

To protect children from harm and the agency from liability, it is important to conduct the required evaluations and assessments, have as much information about a student as possible, seek additional information when warranted, assess and evaluate behaviors and symptoms, share that information with key staff in residential, school, and health departments, and develop comprehensive plans that account for safety and supervision. All professionals involved, including residential staff, should pay attention to a child’s new behaviors, manifestations of challenges, and conditions that are part of their disability or diagnosis, and use that information as part of a coordinated approach for meeting the standard of care for the child in their custody.

For example, I was engaged as the education administration and supervision expert witness in a case involving a child who had been receiving extensive counseling through a residential program’s health department. His tendency toward violent behavior and information about triggers for such behavior were not shared with other adults in the program, nor was this information used to develop a safety plan. Treating professionals did not assess and evaluate the student’s key signs of mental health deterioration, despite many instances that should have caused them to provide additional care. Eventually, the student suffered a mental breakdown, broke into an administrative office, grabbed scissors, and escaped the building. Police who arrived on the scene shot the student when he did not respond to their demands to put the scissors down. Mentally, he was not aware of what was going on and did not understand the police’s instructions.

My review and analysis of this case led me to conclude that the program had sufficient information about the student’s emotional and behavioral issues but failed to address those manifesting behaviors, and on the day of the incident, staff was unable to communicate effectively with him to de-escalate the behaviors. Before being shot, the student was confronted by a teacher who did not have complete information about the student’s behavioral issues or how to deal with them. The teacher’s actions escalated the behavior, placed other students and school staff in harm’s way, and ended in student being shot. If the program had an overall safety plan for this student that included staff training in how to deal with him, it is less likely that he would have been shot. It was my opinion that the program, through its administration and other staff, breached the standard of professional care when it failed to address the student’s mental health issues, failing also to inform and train all staff about the student’s problems and how to protect the student and others from harm.

 

Training and Oversight are Essential to Avoid Residential Program Liability

Numerous case reviews by Education Management Consulting, LLC, have concluded that a residential facility or agency had access to policies and provincial, state, or federal rules, but those policies were not implemented nor was staff adequately trained to use them. In some of these cases, the result was that children were injured, sexually abused, or physically assaulted by other students. Prevention, detection, and reporting of child abuse, knowing how to administer appropriate restraints without injuring a child who acts out, and understanding the requirements for continuous supervision of children are just a few of the areas that require training and oversight. If an injured plaintiff can demonstrate that the facility had in-house policies or that government policies were available but it failed to train staff in those policies and supervise their work, then the program may not be able to avoid liability.

Frequently, when I review a case as an expert witness, I find that the facility had adequate policies, the supervision of children and staff-to-child ratios were good, and the discipline code and rules for children were well thought out and reasonable, but there was a breach in the system. In one such case, for example, a child in a residential school sexually assaulted another in the bathroom. On paper, the policies and supervision procedures looked good. The missing link was that staff responsible for supervising children had knowledge that the predator had done this before, yet made no attempt to provide additional supervision when this particular child was alone with another.

Policies are only as good as the training and monitoring of staff responsible for implementing them. In this case, the facility had knowledge of one resident’s sexually aggressive behavior, but failed to take any reasonable steps to prevent her from harming another child. They failed to provide her with any counseling or heightened supervision, and in fact one of her first offenses was not reported to outside authorities for investigation. In essence, she was allowed to continue her inappropriate behavior. If the facility provided her with appropriate follow-up counseling, reported the first incident to the authorities, and stepped up its supervision of her, it would have been, in my opinion, less likely that this incident would have occurred. 

The American Academy of Child and Adolescent Psychiatry provides guidelines for residential treatment programs in its 2010 publication, Principles of Care for Treatment of Children and Adolescents with Mental Illnesses in Residential Treatment Centers. The Academy offers an approach for professionals about the provision of services and some important training and educational standards, such as hiring staff with appropriate credentials and experience.  There are other similar publications, training programs and professionals available to assist residential care centers with training and keeping up with the standards in the field.

 

Summary

On December 3, 2014, the Chicago Tribune reported that thousands of children in residential treatment centers in Illinois are assaulted, sexually abused, and run away. The residential centers promise round-the-clock supervision and therapy to children who are wards of the state and who have histories of abuse and neglect, as well as to other disadvantaged youths with mental health and behavioral problems. The Tribune reported that patient-on-patient sexual assault is commonplace at some facilities, and vulnerable children are terrorized by older ones. Some are preyed on sexually by adults paid to care for them. In the three years ending with 2013, Illinois residential facilities reported 428 alleged cases of sexual assault or abuse of children in their care to the state Department of Children and Family Services. The state and program administrators said they are underfunded and overwhelmed by too many children, many of whom don’t belong at the facility. In a legal assessment of whether a program, its administration, or staff acted appropriately and reasonably in a specific circumstance, however, these are no excuses.

Adults in schools, camps, daycare centers, and residential programs have a duty to protect children from harm. But when children are placed away from home, out of sight of parents in residential programs, it isn’t unusual for them to be subjected to harm.  Unfortunately abuse and mistreatment typically comes to light after years of poor management, lack of training, lack of government oversight, and staff incompetency. In so many institutions and residential programs, children are often forgotten — out of the sight of the public and their parents. Some programs began in the 1800’s when social capabilities and awareness, along with frustration and lack of resources, forced them into existence. We are just realizing now that so much mistreatment and abuse has taken place but kept quiet and children were hurt.

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.

School Safety and Security: Responding to Terroristic Threats

student secuirty

In the wake of recent incidences of gun violence, school safety and security has become an increasingly pressing concern in the United States and Canada. Schools, summer camps, daycare centers, and other agencies charged with the safety of children have a duty to protect them, and their ability to do so depends on solid policies, training, and appropriate response to security threats. Laws, regulations, and internal policies designed to shield children from harm may be developed proactively in response to a risk assessment or reactively in response to an event that caused injury to a child. Both are valid options in today’s climate of terroristic threats to school safety and security. Inaction is not. Schools and other child-centered programs must consider and develop appropriate responses to this new dynamic.

Schools generally respond to terroristic threats quickly and decisively, but examples suggest that, at times, responses might not be sufficient based on the level of risk to school safety and security. In December 2015 — two weeks after 14 people were murdered nearby in a San Bernardino, Calif. center for people with developmental disabilities — the Los Angeles Unified School District responded to an e-mail threat to students by closing more than 1,000 schools for a day. At about the same time, New York City officials acknowledged having received a similar threat, but considered it so “outlandish” that they dismissed it as a hoax. As it turned out, nothing did occur in L.A. and the students were safe. New York City Police Commissioner William Bratton accused his Los Angeles counterparts of overreacting, but the question remains: What if the threat had been credible and the school had failed to act?

The incidences in New York and Los Angeles are not isolated to large American cities. In November 2015, authorities in Canada — a country that prides itself on its low crime rate — reacted to the latest in a rash of e-mailed threats by closing 71 schools in Quebec and Ottawa. Nothing was found in any of those searches, either. “Notwithstanding the fact that these threats seem to be unfounded, they are taken very seriously by police and will be the subject of an investigation,” police in Quebec said.

Taking action in response to these threats, which met the provincial definition of a terrorist act, is the right thing to do. Ignoring or making light of any terroristic threat places students and teachers at risk.

 

Appropriate Response to School Safety and Security Threats

The standard of professional care and legal standards for determining what constitutes a credible threat are contradictory and confusing. Until the U.S. Supreme Court defines a common standard, various contradictory lower court opinions will persist. With no clear standard of what constitutes a credible threat to school safety and security or how a school or other agency should respond to one, personnel must take all terroristic threats or suspected threats seriously.

States and provinces have definitions of what constitutes a terroristic threat, and these definitions may fit in the context of schools as well. For example, Pennsylvania law defines a terroristic threat as a threat to commit violence with intent to terrorize another person, to cause evacuation of a building, or to cause serious public inconvenience with reckless disregard for the risk of doing so. In the school context, a warning of a mass shooting that prompts a school evacuation and disrupts education constitutes a terroristic threat under Pennsylvania law, and in response, action can be taken against the perpetrator.

In addition to state and provincial laws, other resources provide guidance for schools:

  • In its 1999 report, “The School Shooter: A Threat Assessment Perspective,” the FBI’s Critical Incident Response Group recommended that schools adopt threat-response policies based on three tiers: low-level threats carrying a minimal risk; medium-level threats, which could possibly be carried out but are not entirely realistic; and high-level threats that pose a serious and imminent danger. The report provides guidance for categorizing threats into each tier.
  • A 2004 report by the U.S. Department of Education and the U.S. Secret Service, “The Final Report and Findings of the Safe Schools Initiative: Implications for the Prevention of Attacks in the United States,” suggests that there are productive actions that educators and others can pursue in response to the problem of targeted school violence and terrorism.
  • Another 2004 publication from the Department of Education and Secret Service, “Threat Assessment in Schools: A Guide to Managing Threatening Situations and to Creating Safe School Climates,” builds on the previous report. It sets forth a process, known as threat assessment, for managing students who may pose a threat.

The latter two reports stress that school shootings are rarely impulsive acts. The shooters told other students (though not the victims) about their plans in advance of their actions, but the other students did not tell adults. Telling others constituted a terroristic threat, but in many cases the students who knew of the threat failed to act. They did not report the threat to a school official who might have been able to intervene to prevent the compromise to school safety and security.

Perhaps these students did not know how to respond. Schools should provide training to staff, students, and parents and incorporate a definition of terroristic threat in the student code of conduct, the school security policy, and information that goes home to parents. Information from the school should clearly specify how a student, staff member, or someone from the community is to report threat information to a school official and how the official should respond. A good example is the policy of the School District of Philadelphia regarding terroristic threats. After defining a terroristic threat, Philadelphia’s policy states that:

  • Staff members and students shall be made aware of their responsibility for informing the building principal about any knowledge relevant to a possible or actual terroristic threat.
  • The building principal shall immediately call 911 and follow the district’s crisis plan after receiving a report of such a threat.
  • The principal shall react promptly to this information and knowledge, in compliance with state laws, regulations, and procedures established with local law enforcement.

 

School Safety and Security Threats Require Swift and Decisive Action

Sometimes there is no obvious threat, yet a terroristic act takes place. Depending on circumstances, the school might not be held responsible. For example, in a case in which I was engaged as the expert witness, a woman came through the front door of an elementary school with what she said was her nephew’s lunch in a brown bag. She asked the school secretary if she could take it to her nephew’s classroom. The secretary, who knew the woman, agreed. The woman went to the first-grade classroom, walked through the door, and greeted the teacher, “Good morning, Ms. Miller.” She then reached into the “lunch” bag, pulled out a revolver, and shot and killed the teacher in front of 24 children. Is it necessary to search every person who comes into a school, is known by staff, is the parent or aunt of a student, and who says she is there to bring a forgotten lunch to a child?

The answer is, “No.” In this case, it was my opinion that the school acted appropriately and reasonably under the circumstances. In this suburban community, there was no undue concern about a threat to the safety of the children in the school from outside sources. There was no announcement of a terroristic threat — the person entering the school did not say she was there to shoot a teacher. The secretary did not see a weapon, and she had no reason to believe the woman meant any harm. The woman was “screened” when she came into the school — she was known, she showed her license, signed in, and stated what was determined to be a legitimate reason for being there. Should the secretary have called the student to the office to pick up his “lunch?” Should the secretary have taken the “lunch” to the student? She would have noticed that the bag was too heavy for a peanut butter-and-jelly sandwich. But these thoughts come to mind after a tragedy like this. Can we do better in some situations? Yes, but this school, in my opinion, did nothing wrong. This terrible tragedy was sparked by a neighborhood spat. It is unfortunate that it ended with devastating consequences for 24 children.

There may be other, more obvious, situations that call to task the decision making of school personnel. One such example occurred in Texas, when a man approached a greeter in the school hallway and told her: “I am a gunman. My target is inside of the building. I’m going in the building. You stop me.” The principal did not call 911 because the man was immediately recognized as a parent and school volunteer. It appeared as if he had no weapon, and the school simply asked the man to leave. He did.

After this incident — which occurred less than a year after the shootings at Sandy Hook Elementary School — some parents felt that the school should have treated it more seriously. Though the man told police he was testing the school’s security response, he was later charged with making terroristic threats. The charge was appropriate, but was the school’s response reasonable? Even though the greeter at the front door recognized the man as a parent and trusted him, could he have carried out his threat? Yes, he could have. The duty of the school is to protect the students. Whenever there is any terroristic threat or reasonable suspicion of a threat, the school must act swiftly and decisively.

Closing school and depriving students of a day or so of their education, if it assures their safety, is worth the effort and is appropriate. Not having a clear policy, failing to train staff, and not addressing terroristic threats that might place students and staff in harm’s way can result in injury or death — and costly civil litigation from the harmed party. The best practice is always to place the protection of children and the wider school community at the top of the list. After all, learning can’t take place if children and staff don’t feel safe.
Schools should review state and provincial laws, agreements with law enforcement agencies, and other resources. Review existing school or program policies and procedures for responding to a terroristic threat. Inform and train students and staff about both the policy and what constitutes a terroristic threat, and if one occurs, carry out procedures decisively. Treating seriously any potentially deadly threat to a school or its inhabitants and involving the authorities without debating its credibility is the best course of action in regards to school safety and security.

Student Injury Liability and Emergency Response in Schools for Children with Medical Conditions

Pediatrician doctor bandaging child's leg. Mother holding baby in her hands. Close-up.

Schools have a duty to know about a child’s critical health condition to prevent student injury.

Many school-aged children have medical conditions about which teachers, nurses, and others who are responsible for their health, safety, and well-being should know. If not addressed in the right way by administrators, teachers, or other officials, these conditions can result in a catastrophic incident, student injury and not to mention costly litigation. A student with a known heart defect, for instance, is vulnerable in a physical education class if the teacher is not informed of the child’s condition and does not institute appropriate precautions or prepared to respond in a medical emergency. If cafeteria personnel in a daycare center know that a child has a peanut allergy but fail to supervise the child appropriately, the child can go into shock if she is allowed to sit at a table where another student is eating peanut butter. In situations like these, if a plan for the child’s care was either not in place or developed but not communicated to the staff, the child might suffer irreparable harm — or even die.

Schools (and this is applicable as well to other agencies responsible for supervising children, such as daycare centers and summer camps) have a duty to know about a child’s critical health condition. Having this knowledge requires them to develop adequate plans for the child’s daily routines and allows all appropriate staff to plan for a quick and effective response to an emergency when necessary. Armed with as much information about the child as possible, the school can protect itself from liability by being aware of foreseeable harm to a child in specific situations — be they in class, on the playground, or on a class trip — and by instructing staff about a child’s special supervisory needs.

 

Duty to know, plan, inform, and execute a plan to prevent student injury

A school has a professional duty to collect as much health information about the children in its care as possible. Typically, before a child is admitted, parents complete a health form soliciting information about any chronic illnesses, allergies, or other conditions that the staff should know. The plan that is eventually developed for addressing the special health needs of a child is only as good as the information provided by the parent. In some situations, a parent might not provide full information that might be critical for protecting the child’s safety and health. If sections of the form are left blank, it is the school’s responsibility to follow up and ask for it to be completed in full. This is both necessary for the child to get the full benefit of his education, and critical so that staff may be informed of specific considerations that can mean the difference between life and death of a child and prevent possible student injury.

Some students have a sustained or temporary medical condition that interferes with their ability to fully benefit from their educational program. For example, a student who recently had knee-replacement surgery will not immediately be able to climb the steps to get to her science class. This temporary disability requires a Section 504 plan, which differs from an Individualized Education Plan in that it does not involve special education services. Required as part of the Federal Rehabilitation Act of 1973, a Section 504 plan is commonly instituted to provide accommodations for students who have a broken leg or other acute conditions, or who are undergoing disabling treatments, such as chemotherapy, on a limited-time basis. For the student who underwent knee surgery, a 504 plan could indicate, for instance, that she is allowed to use an elevator that is off limits to others to be able to get to her science class. This plan is developed with the parent, the student, and the school nurse or others as appropriate, depending on the condition. School staff should be informed of the plan, and its implementation should be monitored on a regular basis.

If the school fails to develop such a plan or fails to assure that it is fully implemented, it could be liable for further injury to the child. In a similar case in which I was engaged as the child-safety expert witness, the plaintiff sued for damages based on the school’s failure to implement the plan. The elevator was not working on several days, forcing the student to climb the steps to the second floor. One day, she fell and re-injured her knee. Once there is recognition of the need for an accommodation, the school is obligated to assure it is available and, as in this case, that equipment is fully functioning.

 

Caring for children with special healthcare needs

In the journal Pediatrics (102:137–140), McPherson et al define children with special healthcare needs as “those who have or are at increased risk for a chronic physical, developmental, behavioral, or emotional condition and who also require health and related services of a type or amount beyond that required by children generally.” Special healthcare needs can include asthma, diabetes, cerebral palsy, bleeding disorders, metabolic problems, cystic fibrosis, sickle cell disease, seizure disorder, sensory disorders, autism, severe allergy, immune deficiencies, or many other conditions. Some require daily treatments, while others require only observation for signs of impending illness and the ability of caregivers to respond in a timely manner.

As with acute conditions, a collaborative approach involving parents, the child’s healthcare provider, teachers, and the school nurse is important for protecting the child’s health, safety, and well-being and to protect the school from liability. Development of a healthcare plan that includes critical background information about the child and his special healthcare needs, how all staff will be informed about the need, and how staff will be trained to respond to an emergency will help to protect the child from harm and the school from potential liability.

 

When is a school or child care agency held liable?

In many cases for which I have been engaged as the school liability expert witness, I have found that the school or childcare facility had no knowledge of a special healthcare need, nor was there a care plan in place. In one case, for instance, the parent of a child who died after running two miles in physical education class failed to inform the school of the child’s chronic heart condition. This condition restricted him from such activity. Without this information, the school was correct in treating the student like every other sixth grader, including him in the activities of the physical education class.

In some other cases, the school had a plan but it wasn’t adequate, wasn’t monitored, and the staff was unaware of the information in it — placing a child at risk of a life-threatening event or death. In one such case, a fourth- and fifth-grade physical education teacher instructed her students to go onto the field, run three laps amounting to approximately a mile, and return to the gym. One of the girls who ran the laps then entered the gym, walked halfway across the floor, and collapsed. It turned out that at the beginning of the school year, the parent completed a standard medical form noting that her daughter had a heart condition, was under the care of a pediatric cardiologist, and was restricted from sustained exertion — but the nurse simply filed this information away in her office. The nurse failed to alert any teachers — including the physical education teacher, in whose course the student would most likely encounter difficulty. The physical education teacher, in my opinion, was not at fault because she had no notice of the girl’s health problem and restrictions. Expecting the children to run the course was reasonable and was included in the course outline, and she had no reason to exempt this child. However, it was also my opinion that the school breached the professional standard of care when the nurse, having notice of the student’s chronic medical condition and restrictions, failed to inform the teachers, especially the physical education teacher. Unfortunately, the student did not recover, and the school withstood protracted wrongful-death litigation.

 

Implementing a plan to avoid life-threatening events

Any child who meets the criteria for having special healthcare needs and who presents an increased risk for a serious health event or death should have a routine- and emergent-care plan completed by their primary care provider. It is important that the assessment of the primary care provider include significant physical findings so that caregivers and teachers can develop a plan. An emergency-management plan also should list activities or services that are restricted or that differ from those typical of most children, and it should include specific instructions on how to provide medications, procedures, or implement modifications or emergent care. If these instructions are not clear and if the school requires further information, it is appropriate to ask the parent for permission to consult with the medical provider to ensure that the student receives proper care.

Every school employee, including teachers, bus drivers, cafeteria staff, custodians, and others, should be informed about the special healthcare needs of every child in the facility. One person, preferably the nurse or another designated person, should serve as the funnel for this information and as the person responsible for the development of a healthcare plan, training of staff, and follow-up with parents and the child’s healthcare provider. The staff nurse has a professional duty to understand the unique health issues of a child, transmit that information to all staff, monitor the child’s health, and ensure that any equipment that may have to be used in an emergency situation involving this child is accessible, working, and can be used by others if necessary to save a child’s life.

Often this fails to happen, as in the case of a high school student who collapsed in gym class. The teacher sent another student to the nurse’s office to let her know what happened. The nurse arrived and reached for a defibrillator that was buried in a supply closet, still in the original box it was shipped in. She brought it to the gym only to discover that the battery was not charged and the device was useless. The student died because he was not treated in time. The school and nurse were sued for gross negligence. As the expert witness in this case, it was my opinion that the school administration breached the professional standard of care when it failed to assure that the defibrillator was operable and not locked in an inaccessible area. By failing to make the defibrillator accessible and in proper working order, the nurse acted in deliberate disregard for the health, safety, and well-being of the children in her care, including this child.

To reach an opinion as to whether a school met the professional standard of care, my review and analysis answers, among other questions, whether it acted appropriately and reasonably under the circumstances. These circumstances are always unique to each case and include whether the agency had a duty to develop and implement certain policies and procedures imposed by the state or licensing or accrediting authority. If, for instance, the school had a duty to develop a policy requiring health care screenings of all incoming students but the school failed to have such a policy in place, then it breached that duty and failed to adhere to the professional standard of care. Whether this failure proves to be a substantial cause of injury, health episode, or death is considered in light of the totality of the circumstances. Other standards that I examine include hiring, training, and informing competent staff; maintaining emergency equipment; and updating emergency contact information. If it can be demonstrated that there was a failure to act within the professional standard of care with regard to these and other specifics — and that failure is a proximate cause for serious injury, health episode, or death — the school or agency may be held liable.

On the other hand, my review might reveal that the school or other child care agency did everything to protect the health, safety and well-being of children: It hired competent staff, obtained critical health information about the child, maintained its emergency equipment, and otherwise fulfilled the professional standard of care — but a specific child’s medical condition was not made known by the child’s parent or physician, preventing the school from acting on that information. In cases such as these, when the child suffered a catastrophic event, the school may not be held liable.

 

Conclusion
Protecting the health, safety, and well-being of children entrusted to the care of staff in schools, daycare centers, camps, and other facilities falls within the professional standard of care for such agencies. How they implement this standard and whether they act appropriately and reasonably under specific circumstances determines liability. When an agency knows of the special healthcare needs of a child, develops a plan to address the need, informs staff of the issue, provides an emergency plan of action, maintains its emergency equipment, and takes any other steps necessary to protect the child, it will have met its professional standard of care. Without taking these steps, the school or agency may be held liable for a child’s injury, catastrophic health episode or death. If the agency had no knowledge of, or reasonably could not have known, of a child’s special healthcare needs, then the agency is unlikely to be held liable.

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 for Student Field Trip Injuries or Death

field trip injuries

Adequate supervision is essential for prevention of field trip injuries.

For schools, summer camps, and day care centers, one of the key functions of student supervision is to identify dangerous conditions and then either stop the activity or warn of the danger. The supervisor must take appropriate action for the protection of the children. Duty to warn contemplates both having knowledge of danger (actual or constructive notice) and having time to communicate it.  Field trip injuries are very common and there is an equal duty to protect when children are off campus but still under school supervision, such as when children are on a school-sponsored trip. Excursions off school property present special challenges. Careful planning ahead of the trip, knowing about potential safety hazards, and creating a plan to avoid or mitigate them can help to protect a child from field trip injuries and a school from liability lawsuits.

The best defense against a claim of negligence is that has one or more of the four elements of negligence has not been proven: that a duty was not owed the injured, that reasonable care was exercised in performance of the act, that the act was not the proximate cause of the injury, or that there was no injury to the plaintiff. There will be times that the school will have done everything appropriate but a child still is injured. If the school can show that it exercised reasonable care, it will go a long way toward protecting the school from a lawsuit.

 

Adequate Planning is Essential  to Minimizing Risk of Field Trip Injuries

Being alert to potentially dangerous conditions at an offsite activity starts long before the activity itself. If a trip is planned for a picnic at a local park, for instance, the teacher or administrator should visit the park ahead of time to learn the layout and identify potential dangers on the property that may lead to field trip injuries. Are there any streams a child can fall into? Are there rough trails with loose rocks and tree trunks that can cause a child to trip? Is there a highway nearby that poses a risk to a child who wanders off from the group?

Informing the chaperones and children of the terrain, the hazards, and the safety rules ahead of time is most important. In providing written rules for the children, parents, and chaperones, a school articulates its policy and the behavior it expects from adult and child participants in order to protect students from field trip injuries. Through this type of planning and communication, the school creates a foundation for protecting it from liability should something go wrong.

It also is important to ensure that there are enough adults to provide adequate supervision at the event. In thinking about how many adults are needed, consider how many children will attend, their ages, and whether they have any disabilities or behavioral issues requiring special attention. A higher duty of care exists for a student with a disability or when a child’s Individual Education Program (IEP) requires specific attention to details to keep the student safe.  If a student requires a one-on-one aide at school for additional supervision, the same requirement extends for fieldtrips and other activities to minimize risk of field trip injuries.

 

Negligent Supervision of Students on School Field Trips

One of the cardinal rules of supervision on school field trips is to ensure that children do not leave sight of chaperones. The question of liability for injuries when children leave adult supervision without permission presents two factors. First, was there negligence in supervision on site that permitted the child to leave? If so, then that breach of duty would be the proximate cause of the injury. Second, was that type of injury foreseeable? If so, then failure to supervise a child in a way that could have prevented the injury would be negligence. For the school to be held open to liability, there must be proof that lack of supervision or that negligent supervision was a proximate cause of the accident.

Individuals who perform supervisory functions must conduct themselves as a reasonable person would under similar circumstances. Inappropriate behavior on the part of the supervisor may lead not only to a negligence suit in the case of student field trip injuries or death, but also to disciplinary action against the supervisor. As an example, in a Missouri case, two coaches took six high school boys and four female cheerleaders to a meet, where they stayed overnight. Evidence indicated that the coaches left the students unsupervised and the coaches attended a party and drank alcoholic beverages, and had allowed male and female students to sleep in the same rooms. The coaches were found to have engaged in inappropriate conduct when they abandoned the students and went partying and drinking. The court found that this behavior rendered them unfit to teach or supervise students.

Special attention must be given to the planning of off-campus trips with young children. In one such case, a kindergarten teacher planned a “safety day” class trip to a city-owned parking lot. The teacher planned this event in the same way she had for years, following board of education policies and seeking parent volunteers. Parents and children met at the school and rode with the teacher on a bus to the event. Just before arrival at the event, the teacher addressed the chaperones and said, “Please keep an eye on the children. We don’t want anyone to get lost.” What she did not do — and this turned out to be the proximate cause of a student’s death — was to assign specific students to each volunteer in order to prevent the risk of student field trip injuries.

At the event, the fire company brought a fire truck, the rescue squad brought an ambulance, and the police department set up “roads” with stop signs and walkways for children to practice safe street crossing. The police brought several electric golf carts to use as “cars” to make the scene as realistic as possible. After police officers finished conducting their demonstration of safe street crossing, three children climbed onto a golf cart, one hanging onto the front of the cart. An officer had left the cart idling, key still in the ignition. The cart drove straight ahead into the ambulance, crushing and instantly killing the child hanging on the front. Because several entities were involved in the event — the school, teacher, principal, volunteer chaperones, the police and fire departments, the EMT staff, and the municipal government that provided the parking lot, assignment of liability would likely be shared. The school, however, through the teacher who organized the event, was ultimately responsible for acting within the professional standard of care for supervision of children. Had chaperones been directed to supervise specific students at all times, it is likely that when the students climbed onto the golf cart, their chaperones would have stopped them.

Cases involving class trips can become quite complex when several agencies are involved. In a drowning case, a school had selected students to attend a leadership training program off campus. The school rented a nearby YMCA campsite that had several buildings suitable for overnight guests. There was also a third agency, the company providing the training program.

In this case, several students left the dormitory in the middle of the night, went to a nearby riverbank and took several boats into the river, even though signs strictly prohibited anyone from going into the water. When several students drowned, each of the three entities and many individuals became defendants. Sorting out supervisory responsibilities between the school, the training agency and the YMCA, assessing the capacity of the students to watch out for their own safety, and many additional elements became important when determining foreseeability, responsibility for supervision, proximate cause, and liability. In this case, proximate causation was determined through an assessment of whether the students’ misconduct would likely have been prevented had the duty to supervise been discharged.

 

Contributory Negligence for Student Field Trip Injuries

Questions of liability may arise from any number of unforeseen situations. Who bears the burden of liability when a student on a daytrip rents a bicycle, fails to wear a helmet, and sustains a head injury when he runs into a tree? What is the school’s liability if a child runs ahead of her group onto a highway, only to be seriously injured by a passing car? When a child’s own actions contribute in whole or part to wrongful death or serious injury, such circumstances can be a defense in certain situations.

As a court stated, a determination of contributory negligence involves several considerations:

  • Characteristics of the child (e.g., age, intelligence, experience, knowledge, or physical condition) that would influence her ability to detect dangerous conditions or appreciate the danger of a hazard observed
  • Physical facts, i.e., the extent to which the hazard is noticeable and the degree of alertness required to avoid such a hazard
  • The environment, be it the physical activities of the individual who was injured or killed or the movement, sound, or placement of other persons and objects in the setting.

For example, in the river drowning case described earlier, the question of contributory negligence was raised because the students who drowned were 17 and 18 years old, were determined to be intelligent because they had been selected for leadership training, were physically fit, and had the ability to detect the dangerous conditions of the river. A sign prohibiting swimming was clearly visible to a reasonable person, and there were no distractions at the scene that would have caused either of the students to lose concentration or momentarily forget that entering the river presented a danger of harm.

 

Summary

Supervision of children on the premises of a school, camp, or other entity is essential for protecting the health, safety and well-being of participants. Supervision of children at school-sponsored trips presents unique challenges and must be addressed in a different way. This is especially true when a group is planning to go to a place that is unfamiliar and may present challenges and dangers not typically considered.

Start with a clear, strong policy requiring administrative approval and a plan for the trip that includes safety and emergency responses. Consider how many children will attend, their ages, and how many adults are needed to supervise the children and protect them from harm. If the area is unfamiliar, the person in charge should visit in advance, making note of potential hazards and developing a plan to protect children from those hazards. Chaperones must know as much as possible about where the group is going, the potential hazards, who the children are and whether any have a particular disability, behavior problem or other characteristic requiring special attention, and which children are under their responsibility during the trip.

As an expert witness providing services for plaintiff and defendant attorneys on issues of negligent supervision and liability, I review the policies of schools and other entities and compare them against the facts of the case. This process provides insight as to whether the entity met its own standards by following its policies and whether contributory negligence was involved, leading us toward answers about questions of liability. When the facts are clear, an opinion may be rendered as to whether the entity acted appropriately and reasonably under the circumstances and within the professional standard of care.

School Premises Liability: Maintaining School Grounds to Keep Students Safe

Keeping children safe in schools, preschool and daycare programs, summer camps, on playgrounds, and other locations is a primary responsibility of those who administer such programs. When a child becomes injured and the claim is negligent supervision, a school or other agency will have a greater chance of prevailing when it has clear policies and enforces them. In school premises liability lawsuits plaintiffs are more likely to prevail when a facility fails to maintain its campus and equipment, does not have a regular inspection plan, and does not instruct and supervise students in the safe and appropriate use of equipment. The greatest deterrent to litigation with respect to premises and equipment liability is to keep the building and grounds free from hazards, maintain them on a regular basis, and ensure that that equipment is safe and properly installed, used, and maintained.

School Policies and School Premises Liability

In-house policies become the standard by which schools and other agencies assure the health, safety, and wellbeing of children. These policies mirror professional standards of care in the field as well as federal, state, and local standards. Development and implementation of policies that address circumstances that may give rise to a child’s injury are important components of a defense against school premises liability. Equally important, these policies should be enforced.

For example, electronic equipment in a classroom is often plugged into power strips. Young children are curious. They like to explore how things work. Children have been shocked when a staff member did not cover unused outlets on a strip. Even if the administration has no knowledge of a teacher using a power strip, a policy prohibiting their use without the express permission of the administration gives the administration control. If a teacher ignores the policy, uses a power strip in the classroom, and a child is injured by it, the school might argue that it had the appropriate policy but the teacher failed to follow it.

The existence of a policy alone, and even communicating it to staff, however, might not be enough to persuade a jury that the school had done all it could to prevent injury. The plaintiff might be able to demonstrate that the policy stated that regular inspections would take place during the school year but, in this case, none were completed. The question might then arise: Had inspections been conducted as required by policy, and had the power strip been removed from the classroom in an inspection, would the child have been injured? Having a written policy without enforcing it will not strengthen a defendant’s position.

Maintaining School Grounds to Avoid School Premises Liability Lawsuits

When a child is injured after falling 10 feet from a playground slide to the unpadded ground below, the injured party may claim that the school or camp failed to maintain safe premises or breached a safety standard. Did the school allow the play area to become unsafe by not replacing a shock-absorbing surface that washed away over time? This is an example of a maintenance issue that required attention, lead to an injury and left the school vulnerable to potential school premises liability lawsuits. Defective equipment and unsafe premises cause untold litigation expenses in the United States and Canada.

When children are involved, a majority of defective-equipment allegations involve playground equipment. In a case of a 4-year-old who badly mangled his finger on a merry-go-round (Fetters v. City of Des Moines), the plaintiff alleged that the merry-go-round was defective because of improper maintenance. In another case involving negligent maintenance (Rich v. City of Goldsboro), the plaintiff was thrown from a see-saw that was worn and wobbly and that lacked handholds or stabilizing devices. In fact, nearly every time a plaintiff’s allegation of defective equipment prevails, the proximate cause is failure to adequately maintain equipment.

An inspection system is the most important component of maintaining safe premises and for managing risk. Inspections play an important role in the discovery of conditions, and “notice” is an important legal concept regarding liability for conditions of premises. Notice is information — knowledge of the existence of a situation. For example, if the head custodian learned of a missing end cap on a slide, then he or she is held to have notice of the condition.

Whenever children are around equipment of any kind — a slide on the playground, a table saw in shop class, folding tables in a cafeteria, or a pair of scissors in art class — teachers, camp counselors, and program administrators, as well as custodians and bus drivers, have a duty to ensure that equipment is always in top condition, maintained regularly, or taken out of service when in need of repair. A teacher’s job description may include a requirement to inspect and maintain equipment in the classroom on a regular basis. This requirement becomes a professional standard of care in that school — and one that can be referred to in litigation.

In a real case involving a student and a table saw, the woodshop teacher knew that a bolt was missing from the saw blade guard. Rather than referring to the manufacturer’s requirements for a replacement, he rooted through a drawer in the shop, found a bolt he assumed would hold the guard to the saw table, and replaced it. Later, when a student was using the saw, the bolt came loose, the guard jammed, and the student lost three fingers. After thousands of dollars’ worth of surgery, the student filed a lawsuit against the school and the teacher.

Did the teacher adhere to the professional standard of care? Or was the standard breached when he failed to maintain the saw, as required by his job description? Did he breach the professional standard of care when he used a bolt not approved by the manufacturer? In this situation, the teacher ignored the standard outlined in his job description and deliberately used a bolt not recommended by the manufacturer. The saw should have been taken out of service until it was properly repaired. If this school premises liability case had not settled, the school would have had to persuade a jury that even though the saw was not maintained properly and the teacher used the wrong bolt, the student was at fault. It’s unlikely a jury would have agreed.

Negligent Supervision of Students

Folding cafeteria tables that are improperly stowed, TVs atop carts incapable of supporting them, and chemicals left in reach of students all place children in harm’s way, with the foreseeability that someone could become injured. Staff must constantly supervise the premises and the use of equipment. Knowing what to be aware of in environments inhabited by children and how to safeguard children in those environments are among most important responsibilities of adults who are ultimately responsible for children’s safety.

When a potentially dangerous situation is identified, there are several alternatives:

  • Discontinue the activity. Do not allow activity in an area where children would be exposed to the danger
  • Modify the activity. Adjust the manner of play to avoid contact with the defect
  • Temporarily repair the defect and continue the activity with care. For example, a hole in a floorboard might have a temporary covering in order to protect students from injury on the spot. This may be fine in the moment, as long as students are carefully supervised, but after the activity is over, the temporary floor covering should not be left in place and considered a “fix.” Once a supervisor or administrator has notice of the hole and the temporary fix action to correct the hazard must be taken. Inaction is itself an act that can enhance the likelihood of injury for which the person is personally liable.

The court has established two types of torts: manufacture of defective products and the use of products. With respect to the latter, a suit can be brought on negligence if the user of a product is injured, regardless of whether the product has been associated with liability claims. Consider a TV cart that had been labeled dangerous by the Consumer Product Safety Commission: Its design caused it to tip over easily, but no product liability claims had been filed against the manufacturer. In one real case, a third-grade teacher instructed two students to return a TV on top of this cart to a hall closet. Being third graders, one child pushed the cart from the back while the other rode up front, placing his feet on the bottom shelf and holding onto both sides. When the child pushing the cart let go of it, the cart tipped in the direction of the student hanging off the front and the 55-pound TV struck the other student in front in the head, causing permanent injury.

A claim of negligent supervision was filed against the teacher, the principal, and the board of education. The question became: Was it appropriate and reasonable for the teacher to send the two boys, unsupervised, into the hallway to return the TV? Information the teacher knew about one of the students became another factor in this case: The boy had behavior problems and been corrected on numerous occasions. Did the teacher breach a professional standard of care by sending these students, one of whom she knew was likely to misbehave in the hallway, to take the TV to the closet?

When children are engaged in activities under supervision, the school or other agency has the responsibility for ensuring that equipment is appropriate for the child’s age, size, skill level, and general capacity, as well as how it will be used. There is also a duty to instruct the child in its proper use and dangers of misuse, and to monitor for proper use. The person instructing the child must also be alert to defective equipment. The school district has the authority to purchase and furnish equipment, but teachers have the responsibility for proper selection, inspection, and use of equipment. Legally, this is important, because if equipment is used for a purpose not in accord with its instruction, product liability is not at issue. Moreover, an injured child does not assume any risks if the equipment used is defective or improper for the activity. An improper type of jump rope, for instance, was alleged to be the cause of injury in a physical education class when an 8-year-old was injured. The 6-foot rope had wooden handles, one of which hit a student in the teeth when it was jerked from a teacher’s hand. In this case, the defendant prevailed.

Conclusion

Schools, their administration, and staff, along with adults who administer preschools daycare centers, summer camps, and similar programs have a responsibility to protect children in their care from harm in order to avoid school premises liability lawsuits and negligent supervision of students claims. Policies that set standards for ensuring safety and maintaining the building, grounds, and equipment are a start, but those policies must be enforced and students appropriately supervised during activities, especially ones including specific equipment. Negligent maintenance and failure to supervise children in the proper use of equipment are common reasons policies fail and can lead to conditions that give rise to student injury and school liability lawsuits. School and agencies should take every reasonable step to avoid these potentially costly traps.

Public and Private School Employment Discrimination Lawsuits

School Employment Discrimination

Employment decisions in public and private schools should be based on qualifications, performance, merit, and seniority, rather than race, national origin, gender, religion, age, or disability.

Employment decisions in public and private schools should be based on qualifications, performance, merit, and seniority, rather than race, national origin, gender, religion, age, or disability. Teachers and other school personnel can sue for employment discrimination if they are wrongfully dismissed or demoted, if they were prevented from initially obtaining a job, or not appropriately accommodated for a disability or medical condition. Most employment discrimination violates either state or federal law, and legal protections are found in the 14th Amendment to the Constitution and Title VII of the Civil Rights Act of 1964. Additionally, two primary federal statutes prohibit disability discrimination in employment: the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) of 1990.

Statutes are extensive, complex, vary considerably, and can be confusing. As such, there is no simple solution to every case involving employment discrimination. But a careful review of the progression of events associated with a complaint often will bring litigation to a reasonable conclusion. In such cases as a teacher being fired or an applicant being excluded from a job interview, attorneys representing plaintiffs and schools must present a clear timeline of events leading up to a decision. Often, this task is accomplished in retrospect after a lawsuit has been filed, and any lack of documentation can make it difficult for plaintiff to argue employment discrimination or for a school to defend its decisions.

Reconstructing the file — an employee’s discrete, day-to-day personnel issues or the employment interview and process, for instance — is necessary to be able to determine whether the school, through its administration, acted appropriately, reasonably, and within the professional standard of care. Knowledge of employment law and the nuances that often exist in the school context is helpful to attorneys in representing the best interests of their clients in employment discrimination claims. Above all, however, a timeline of events and analysis of each significant entry are most important in determining whether a school met the law.

Anatomy of an Employment Discrimination Lawsuit

The importance of a timeline is illustrated in a recent case in South Carolina. Spartanburg School District Seven reportedly will pay $62,000 to settle a former teacher’s employment discrimination suit. Frances Grady claimed she faced discrimination over her disability, race, and age. Full details of the case were not disclosed publicly; however, court documents reveal the basics.

Grady, who was employed by the district for more than 30 years, was diagnosed with a condition that weakened her immune system. Grady said the school made accommodations for her, allowing her to teach smaller groups of students as an “interventionist.” In my opinion, such an accommodation would be appropriate and reasonable, and would have met the needs of the employee and the school at that time. Of course, a district’s needs may change over time, possibly necessitating a restructuring of staff. In other words, Grady’s accommodation might be viable one year but not the next. The following year, the school reassigned her to teach first grade.

This brings up a question: When did the school know of Grady’s disability? Did it make an accommodation for her by assigning her to teach as an interventionist — or did Grady disclose her disability after the school reassigned her to teach first grade?

In her employment discrimination lawsuit, Grady claimed to have told school officials that her condition prevented her from teaching first grade. Further, she said, the school told her it would no longer use interventionists, forcing her to go on leave without pay because, in her belief, the school would no longer accommodate her disability. Subsequently, Grady was not offered a teaching contract.

Later, Grady, who is white and in her 50s, learned that a younger, less-experienced African-American male was hired as an interventionist, thus prompting her claims of race and age employment discrimination.

If it could have been demonstrated that the school knew of Grady’s disability, accommodated her by assigning her to the interventionist position, then reassigned her to first grade — knowing that her disability would not allow her to be effective in that role — and finally replaced her with someone else, the school would have had difficulty justifying its position.

In its own defense, the school denied that Grady had been offered the interventionist position because of her health. The school also claimed that it was only after her reassignment to first grade that Grady submitted medical documentation about her diagnosis and requested an accommodation. The school acknowledged that Grady was not offered a teaching contract after granting her request for medical leave, but denied its action stemmed from any discriminatory or retaliatory reason.

If the school can show that it declined to offer her a contract because of a change in the school’s staffing structure — and not because of her disability — then it is likely the school would have been able to justify its position.

Title VII School Employment Discrimination Protections

Title VII prohibits entities with 15 or more employees from discriminating on the basis of race, color, religion, gender, or national origin. The statute covers hiring, promotion, and compensation practices, as well as fringe benefits and other terms and conditions of employment. Discrimination in hiring can be established by showing that the applicant is a member of a protected class, applied for and was qualified for the job, and was denied the position while the employer continued to seek applicants with the plaintiff’s qualifications.

When a public or private school posts a position for a teacher, lists the qualifications, interviews several qualified candidates but denies the position to a highly qualified individual who discussed her religious affiliation with interviewers, this individual might believe she was subjected to religious discrimination. In this example, the candidate would need to show, at a minimum, that she met the posted requirements for the positions, that other candidates were not as experienced and thus not as qualified, that the school did not offer her the position, and that it continued to interview.

In its own defense, the school would need to state a reason for its decision that does not violate Title VII. A reason for not hiring may be objective, such as the requirement that the candidate possess a graduate degree; subjective, such as an assessment of interpersonal skills; or a combination of both in determining which applicant is best qualified. If the school is unable to show a nondiscriminatory reason for its action, a decision for the plaintiff most likely would be granted. Additionally, the school should present a timeline of events from the time the position was posted (including a copy of the posting), through the interview, reference check, and finally a decision to hire another person. If the timeline reveals gaps in documentation and the school is not able to account for actions that should have been taken, this will strengthen a decision for the plaintiff.

Given the ease of presenting a nondiscriminatory reason, schools should be able to provide a satisfactory response in nearly every instance. For example, if the school hiring the teacher can show that discussions with past employers revealed that a candidate was not liked by fellow staff and often argued with them in an unprofessional way, these are valid considerations in the hiring process. How much weight this should have, however, is often argued in litigation. The school should develop a process for documenting interviews with former employers, particularly with respect to specific statements provided by an interviewee and the impressions of the person making the call.

If the school argues that nobody who interviewed the candidate knew of her religious affiliation and that it was not included on the application, then it has a good chance of showing that it acted appropriately, reasonably, and within the professional standard of care, and that it met the requirements of Title VII. On the other hand, if one of the interviewers pointedly asked the candidate about religious holidays she would be likely to take during the school year, this may be interpreted as obtaining information about the person’s religion that later factored into a hiring decision. In a situation where events during the interview might be the subject of disagreement, the jury will address the credibility of the witness.

After the school provides a rebuttal, the plaintiff then has the additional burden of proving that the school’s stated reason for not hiring is false and is but a pretext for prohibited intentional discrimination. In most instances, it is difficult to show a pretextual basis for discrimination. The plaintiff is likely to be successful only when it is clearly articulated, verbally or in writing, that the candidate was not hired because of a protected factor. This information may be found in a thorough document review during discovery. Notes made by people who interviewed the candidate might reveal bias through comments such as “too many religious holidays.”

Protection against discriminatory employment practices is not absolute. Facially discriminatory practices on the basis of religion, gender, or national origin (but not on race or color) may be permitted if they relate directly to a bona fide occupational qualification, such as a requirement that the head of a Catholic school be Catholic.

Disability Employment Discrimination

Another area that often comes forward in employment lawsuits is disability, either that of an individual applying for a position or that of a current employee. Federal disability law protects individuals who can show that they are “otherwise qualified” for a job, although reasonable accommodations may be needed at times. If a person meets the requirements for a position but uses a wheelchair, for instance, the school must consider how it can make an accommodation so that the individual can function successfully in the job.

When a person with an identified disability applies for a position at a school, the school must determine whether he or she is otherwise qualified. To be an otherwise qualified individual with a disability, the applicant must be able to perform the essential functions of the job in spite of the disability, although reasonable accommodation at times may be necessary. Consider, as an example, a school that posts a position for a high school social studies teacher. The announcement attracts the attention of a junior high school social studies teacher who has taught in the district for seven years. When it first hired her, the district assigned the teacher to a classroom on the second floor of a three-story building. Because of her disability, the teacher used a wheelchair and used an elevator to get to her classroom. The high school is in an older building with three floors but no elevator. In this situation, the school must first consider the applicant’s qualifications for the position, regardless if she uses a wheelchair. If she is otherwise qualified, then the school must consider reasonable accommodations necessary for her to function in the position.

Would it be reasonable, in this case, for the school to construct an elevator to accommodate the teacher if she were to be assigned to a classroom on the third floor? Alternatively, would it be a reasonable accommodation to move the social studies class to the first floor so she would be able to get to the classroom? Assuming she was otherwise qualified but not offered the position, the teacher would have a valid claim that she was discriminated against because of her disability and could present the position that simply moving the class to the first floor would have been a reasonable accommodation.

In defense against such a suit, the school should produce documentation that during the interview process and afterward, it considered what accommodations would be necessary for the person to be successful in the position. Suitable documentation would include a checklist of potential accommodations and/or modifications, such as moving a class to the first floor for a teacher who uses a wheelchair or constructing a handicapped-accessible bathroom on the first floor of an older building.

Conclusion

Basing employment decisions strictly on qualifications, performance, merit, and seniority, rather than race, national origin, gender, religion, age, or disability is the law. However, prospective employees or current teachers or staff can interpret employment decisions any number of ways, raising questions of equity. Sorting out what is in the best interest of the school while assuring that an individual’s rights are maintained can be confusing. Sometimes, decisions need to be made for the school, but not to the exclusion of the employment rights of the individual. It is not easy to balance the institution’s needs with its provision of an adequate education for students and the employment rights of its teachers and staff.

For both plaintiff and defendant attorneys, clearly documented timelines are essential. These are necessary for reviewing and analyzing whether a school acted within the law when making employment decisions. Documentation of candidate interviews, reference checks, and of issues leading to a decision to bypass a candidate for a job is essential for determining whether a school acted within the professional standard of care.

The important thing to remember is that treating all potential or current employees the same may not accommodate individual needs and may inadvertently result in discrimination resulting in employment discrimination lawsuits. Alternatively, treating each person differently may provide advantages to some over others. There is no simple solution for every case.

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.