August 21, 2017

Professional Standard of Care in the Field of School Administration and Student Supervision

professional standard of careParents are responsible for the protection and care of their children, and there may be legal consequences if a parent negligently fails to take reasonable steps to protect his or her child from harm. As with parents, entities and agencies charged with the care and supervision of children are responsible for the protection of their health, safety, and well-being. A partial list of such entities or programs include daycare centers, preschools, summer camps, YMCA centers, K–12 private and public schools, private schools that provide residences for students, and residential centers for adjudicated youth. When a child is placed into the care and custody of such an organization, that entity assumes control and supervision over the child comparable to parental care — and is held to even a higher professional standard of care established within the field of education.

If a child is injured and if it can be demonstrated that the entity responsible for supervision and care of the child failed to act appropriately and reasonably under a specific circumstance, it might be liable for such events as wrongful death, serious personal injury, or sexual assault. Once a child is under the care of professionals in such programs, specific legal standards and the professional standard of care become important factors in assessing whether the agency, through its administration and/or employees, met those standards and whether the breach of legal or professional standards may have contributed to harm.

 

Professional Standard of Care Defined

The professional standard of care is defined as the level and type of care that a reasonably competent and skilled professional, with a similar background and in the same setting, would have provided under the circumstances that led to the alleged injury. This is the watchfulness, attention, caution, and prudence that a reasonable person in the circumstance would exercise. If a person’s actions do not meet this standard, then his or her actions fail to meet the duty of care and, therefore, fall outside the professional standard of care.

In matters involving tort claims, the standard of care required when children are involved is for those in charge to act reasonably in view of the probability of injury to a child. The standard is not that of an insurer of safety but, rather, that reasonable precautions and responses are taken in light of the circumstances. Schools, day care centers, and camps have a responsibility to provide reasonably safe premises, considering the nature and conduct of children who will be using the facilities. However, when an agency is responsible for the safety of children, performing the standard of care expected of a prudent citizen or parent is not adequate; the standard of care in this instance is that of a reasonable and prudent professional. This means that a physical education teacher, for instance, would have to act as both an ordinary, reasonable person and as a reasonable and prudent physical education teacher. The standard of care is measured by the judgment, knowledge, experience, training, perception of risk, and skill that a person in the capacity of a professional would have. Often, the application of an expert’s education, training, and professional experience becomes the pivotal point to determine whether, in a particular circumstance, a teacher or other professional met the professional standard of care.

Failure to meet a standard in a particular field, such as education administration and supervision, is negligence, and any damages that result may be claimed in a lawsuit by the injured party. This encompasses both the legal and professional standards within a field. At times, the standard is often a subjective issue about which reasonable people can differ. Some professional standards of care in the field of education administration and supervision are clearly defined in law, such as in Title IX of the Education Amendments of 1972. Title IX requires every school district to identify a person who will act as a Title IX coordinator. If the school has not identified such a person, then it has not met the legal standard of care. In a different circumstance, there may not be a statute to define a legal standard of care but within the field, there is an acceptance of how things are typically done. For example, there may be no state regulation regarding the staff-to-student ratio when supervising students on a playground during recess. Some school districts have their own policies or rules about staffing and student supervision, but in their absence, local standards, common sense and good administrative practice prevail.

 

Failure to Apply the Professional Standard of Care Can Result in School Negligence

If a school administrator knows that a student is being harassed but doesn’t take immediate action to eliminate the harassment, prevent its recurrence, and address its effects, the administrator may be acting outside the professional standard of care. On the one hand, there is a legal standard that is articulated in Title IX — that immediate action be taken — but on the other hand, what within the professional field defines immediate? Is immediate within one hour, five hours, or three days? The answer — and what becomes the professional standard of care — depends upon the circumstances. Additionally, assessing whether the action taken was sufficient to eliminate the harassment does not fit neatly within the strict legal standard of care, but more appropriately fits in the professional standard of care. This must be determined within the specific context of an event.

For example, did a principal act within the professional standard of care when, upon being informed of sexual harassment of a student by a classmate, he waited until the next school day to address the report? This depends on the context of the situation and nuances that would be understood by an experienced education administrator. As an education administration and supervision expert witness, I utilize my education, training, and professional experience as a school administrator to review the allegation and the report, examine the circumstances from a school administrator’s point of view, and render an opinion as to what a reasonably competent and skilled professional would have done under the circumstances. Although the law may use the term “immediate” action or response, the context of the situation allows the expert witness to opine as to whether the administrator’s action or inaction met the professional standard of care.

Within the daycare industry, there are many legal standards that must be met in order for a school to obtain a state license. One example is that a specific child-to-adult ratio be maintained in the classroom and during recreational activities. However, once children are outside being supervised by the appropriate number of staff, judgements based on circumstances might need to be made: Should the child be restricted from play if he becomes overly aggressive? Should children be kept away from the grass that was just cut? Should a child be sent to the nurse because she complains of a headache? These are decisions that are made based on the professional standard of care. There may not be a defining legal standard or school policy restricting a child from playing with others. As the professional, the supervising staff member must make a decision based on the circumstances, the nature of the child, and any safety issues, such as the location. Overall, the person in charge must act as a prudent professional under the circumstance to protect the health and safety of the children in his or her charge.

 

Legal and Professional Standards of Care for Children with Disabilities

The most vulnerable children in a school are those with disabilities who, at times, may be unable to defend themselves. An important aspect of protecting children with disabilities is for a school to identify a child’s learning, emotional, and social abilities and develop an Individual Education Program (IEP) to protect the child from harm. There are legal and professional standards of care when a school is responsible for the protection of vulnerable children. The legal standard of care is that every public school district identify students who may be individuals with disabilities and who may benefit from special education and related services. Once a child has been identified as in need of specialized services, then the school, as a matter of the professional standard of care, should determine what services (such as an aide) would be needed to keep the child safe. If a student was neither identified as an individual with a disability nor provided with an IEP and then engaged in sexual behaviors with peers, it might be relevant that the district did not identify this student as one who was having social or emotional issues that negatively affected his or her education. If the student was not identified as one who could benefit from special education but should have been, there may be an argument for the district having breached the legal standard of care — that is, for not developing an IEP, a behavioral plan, and a safety plan for the student. In this example, the professional standard of care may focus on earlier behaviors noted by teachers and whether a teacher who had this knowledge sought to have the student evaluated in order to develop an IEP. Whenever the legal and professional standards of care are examined in a situation involving a student with a disability, it is important to engage the services of an expert witness with experience in the special education field.

When professionals take over for parents in schools, daycare centers, camps, and other organizations they have a responsibility to protect those children and act the way a reasonable parent would act. But this alone is not enough. They also are responsible for providing the care expected of a professional person in the field of child supervision.

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.

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.

Contributory Negligence Defense in School Liability Lawsuits

school liability

Contributory Negligence Defense in School Lawusits

Student injury or death often brings negative attention to a school. In fact, the first thing often reported publicly is an injured party’s claim that an incident stemmed from the negligence or misconduct of a staff member responsible for a child’s safety — a teacher, coach, or bus driver, for instance. But a student injury or death can result from any number of situations. These might range from school-related action or inaction, such as a breach of school security or failure to follow a student’s medical orders, to a student’s own actions and choices triggering a contributory negligence defense.

Consider these examples: A child runs into a street without a crossing guard present and is hit by a car; a teenager is shot by a rival gang member after his teacher sent him to a nearby restaurant to get her a sandwich; a boy sneaks into a restricted area of a building and falls through a ceiling; students drown in a river after taking boats out at night; and a girl on a skateboard flies off a ledge in a school parking lot. Any one of these cases could result in a liability lawsuit. But a determination of the facts may also show contributory negligence and produce strong defense against a liability claim.

The strength of a defense is determined by examining the four elements of negligence: (1) Duty to protect. Was a duty owed to the student? If it can be argued that no duty existed at the time of the injury, then a defense may be very strong. (2) Standard of care. Was reasonable care exercised in protecting the health, safety, and welfare of the student? If the school adequately instructed and warned students about a danger but a student purposefully disregarded these admonitions, a defense of contributory negligence might prevail. (3) Proximate cause. Was the injury or death directly related to something the school did or failed to do? If a school’s actions or inaction cannot be demonstrated as a proximate cause of the incident, there is a strong defense. (4) Actual injury. Even if the school breached a standard of care requiring specific safety measures, lack of an injury will contribute to the defense of the lawsuit.

This article will use a hypothetical case to demonstrate how the concept of contributory negligence may serve as a defense against liability and help plaintiff and defense attorneys assess the merit of a suit or the strength of a defense.

Determining if Contributory Negligence Applies as a Defense

According to the Restatement (Second) of Torts, section 463, contributory negligence is conduct that falls “below the standard to which [a person] should conform for his own protection.” School districts use a defense of contributory negligence when alleging that a student contributed to his or her own injury. Let’s illustrate how contributory negligence might apply when a student is seriously or fatally injured on school property.

A suburban junior high school warned students on a regular basis not to ride skateboards on school property. The principal made several such announcements over the public address system at the beginning of the school year. She also posted fliers around the school, gave one to each student in homeroom, and sent one home to parents. The announcements and fliers explained the dangers of skateboarding in the school parking lot because of the proximity of utility poles in the lot and a steep slope adjacent to it — all of which posed a threat of harm to a student who is unable to control a skateboard. The school posted signs in the parking lot reading “Danger — Skateboarding Prohibited.”

In the early morning hours before school, a group of seventh graders brought their skateboards to the parking lot and rode around. Five minutes later, one of them veered over the edge of the steep slope, crashing and seriously injuring her head. Another skateboarder called 911. EMTs treated the student onsite and transported her to a hospital. After three weeks in a coma, she died.

Our hypothetical case has the markings of a wrongful death lawsuit and a vigorous defense. In the context of the elements of negligence, let’s examine what plaintiff and defendant attorneys should consider.

First, was there a duty to protect the students? The school has a duty to reasonably protect people on its property, including the parking lot. These students were on school grounds at a time when students normally begin to arrive. The school might argue that the students should not have been in the parking lot at a certain time and, therefore, it had no duty to protect them. In this scenario, however, the weight will fall on the side of a duty to protect the students.

The next element to review is whether the school exercised reasonable care to protect its students. In our example, the school made clear to students that they were prohibited from skateboarding in the parking lot. The school also posted warning signs there. Plaintiff and defendant attorneys should examine whether school’s recognition of the danger was sufficient to protect students from harm. What did the school communicate to students? Were warnings adequate? In this situation, it’s likely that the school will argue successfully that it recognized the potential for danger and exercised reasonable care to protect students from harm.

The next question to answer is whether the student contributed in any way to her injury and death. Is it reasonable to consider that this girl would have understood the warnings but ignored them? In Russell v. Board of Regents of the University of Nebraska (423 N.W.2d 126 [1988]), the Supreme Court of Nebraska ruled that “One who is capable of understanding and discretion and who fails to exercise ordinary care and prudence to avoid dangers is negligent or contributory negligent.”

In determining whether contributory negligence applies, an attorney should consider three factors:

(1) Physical facts — the extent to which a hazard is noticeable and the degree of alertness called for by surrounding circumstances to avoid such a hazard. (2) The action taking place — the movement, sound, and physical activities of both the individual who was hurt as well as those of other people and objects in the vicinity. In other words, what distractions may or may not have influenced the chain of events? (3) The characteristics of the student who was hurt — age, intelligence, experience, knowledge, physical condition, or other factors that would influence a student’s ability to detect dangerous conditions or appreciate the hazards involved.

The third factor leads us to an important question: Is it possible that, because of diminished capacity, the student in our example would not be able to understand the dangers of riding a skateboard in the parking lot? Even with clear warnings about the potential for injuries when directions are not followed, some students may not understand how to keep themselves safe from harm. Assessing whether a school’s notice of danger was reasonable in this context can weigh heavily for or against a defense.

Some courts would hold that a very young child is incapable of contributory negligence because the child does not realize or understand the degree of care that must be exercised to avoid injury. Courts have differed on an age cutoff, but a common guideline is that children under the age of 7 are not capable of contributory negligence, Contributory negligence is also generally difficult to prove among students between the ages of 7 and 13, unless it can be shown that a student is unusually intelligent and mature.

School Liability and Duty of Care

Let’s conclude our example with an analysis of the facts.

Did the girl have the capacity to protect herself from harm? Let’s assume that the girl was 13 years old and in the advanced math/science track. Her IQ was above average and she didn’t have any known learning disabilities. Clearly, she would have been able to understand the principal’s announcements, read the fliers and the warning signs, and act in a way to prevent herself from injury by skateboarding in the parking lot.

Were the dangers in the parking lot clear? The slope was obvious to anyone near the edge of the parking area. The utility poles were noticeable to any person in the lot. The school posted numerous signs forbidding students to skateboard in the parking lot, and any reasonable person would see the signs. Several signs were posted near the slope and at entrances to the lot from various roads and walkways. The hazards, it could be argued, were clear to a reasonable student of the same age and capacity.

Did the school adequately exercise its duty to protect? In our case, a defense attorney may have a strong argument that the school acted appropriately under the circumstances — and that the student did not. The student had the capacity to understand that if she acted in a way counter to the school’s warnings, she risked placing herself in harm’s way. The student had a duty to protect herself from harm. Through her actions, she contributed to her own injury and subsequent death.

What was happening at the moment of injury? The girl and her friends were skateboarding in the parking lot — an action that was prohibited. There were no distractions in the lot that would have rendered her unable to control her skateboard before she went over the edge of the slope. In fact, it was learned that the injured student purposefully headed toward the slope while telling her classmates, “Look, I’m going to skate to the bottom!”

Not all liability claims are so clear-cut, and other intervening variables may warrant consideration when assessing a case involving student injury or death. Our example, however, provides a format for a plaintiff attorney to consider the merit of a case or for a defense attorney to evaluate the strength of a contributory negligence defense.

Summary

Determining the extent to which a person may be responsible for his or her own injury is critical in the school context, where the school is obligated to protect the health, safety, and welfare of students. Because of age or disability, some students may require greater supervision than others. Some students are bright and can understand the dangers that await them if they ignore warnings and choose to take a risk that could lead to injury. Two key variables in cases involving student injury and death are whether a school’s warnings to students about the dangers and risks were adequate and whether a student had the capacity to understand those warnings. When the answer to both is “yes,” then an examination of whether the student may have contributed to his or her own injury is warranted. The student’s actions may prove to be a strong defense against a liability suit.

Student Injury and Reasonable Professional Standard

Student Injury and School Liability

Student Injury and School Liability

Unquestionably, schools have a responsibility to protect children from harm. The same goes for agencies such as day care centers, summer camps, and after-school programs. Schools and agencies, however, are not the ultimate protectors; that role falls to employees, who must act on behalf of the school in a way that is reasonably calculated to maintain children’s health, safety, and well-being. The key word here is reasonable — and in the totality of a situation in which a child was injured or died, an analysis and assessment of what was reasonable can be challenging but it is the key to assesing school liability.

The distinction between a school or agency’s duty to protect and who is the ultimate protector from harm in a given situation is important, because it provides an avenue for determining liability. This is the starting point for analyzing a case involving student injury or death and assessing what kind of behavior would be expected to keep children safe. Behavior that is deemed reasonable under the circumstances leads us to the question of whether those in charge acted appropriately and within a professional standard of care that is calculated to protect children from harm.

Determining either the merit of filing a lawsuit or the strength of a defense boils down to two key questions. Attorneys need to know “What would a reasonable administrator, or other employee, do in the same or similar circumstance?” and “If this person acted differently, would the injury or death have occurred?”

School Safety and Security: Tips for Assessing Liability in School Violence Lawsuits

Student Safety: What should be done?

Ensuring children’s safety requires that those in charge be both proactive and reactive in a meaningful way. At a general level, a reasonable school or program administrator would conduct a safety survey of the facility, the equipment, and the community; assess the supervisory requirements of the children based on their age, number of children, and any unique characteristics; and develop policies and specific procedures for staff implementation. Specific circumstances may compel a reasonable administrator to take additional measures or instruct staff to be vigilant and prepared to disarm a situation, even if no statute or regulation requiring specific action exists.

As an attorney, place yourself in the classroom where a child slipped and fell. Or in the daycare center where the teacher asked a child to carry hot soup across the room. Or at an agency-sponsored trip where a child ran into the street. Then ask yourself: What should the administration and staff have done to protect children in these circumstances? Were reasonable and appropriate steps taken, and if a child was hurt, would the injury have occurred even with these precautions? Let’s consider these questions in the context of two real cases.

Wrongful Death Lawsuits against Schools and Agencies

Applying the Reasonable Standard to School Accidents

The first case involves a 300-pound cafeteria table that fell on a second-grade student. This was an 18-foot table that folded in the middle and stood upright, on wheels, when folded. When the folded table was put away, it was rolled to a wall, where it would be securely fastened by a manufacturer-supplied device. Recognizing the need to protect students from a falling table, the school developed a procedure by which the custodian, immediately after lunch, would clean the tables, fold them, move them to the wall, and secure them to the wall. This was in his job description. The latches along the wall were functional, but the custodian failed to latch one table to the wall. When a student walked through the cafeteria, he leaned against the table — causing it to topple onto his head, killing him.

Any reasonable school or agency administrator would understand that if a 300-pound table was not securely fastened to the wall, it might tip and fall on a student. The school recognized this danger, developed a careful procedure, and placed it in the custodian’s job description. The manufacturer warned that the tables must be latched to the wall with the supplied mechanism to prevent accidental tipping and injury or death. The manufacturer provided this mechanism and the school properly installed it and required the custodian to use it to secure the tables. The school, through its administration, was also responsible for ensuring that its standard was followed.

In this case, the test for actual causation is whether the plaintiff could establish that this student’s death would not have occurred without the negligent conduct of the school through its employee. Viewing this through the eyes of a reasonable school administrator provides the answer. A reasonable administrator would have developed a review-and-supervision system whereby she would regularly observe to ensure that the school’s own standard was being met — that is, that the custodian latched tables to the wall as required. If the administrator saw that the custodian failed to fasten a table to the wall, it would be her responsibility to correct the custodian’s behavior by bringing this deficiency to his attention. The administrator failed to ensure that the proper procedure was being followed and that contributed to the custodian’s failure.  In this case, it was determined that if the table was securely fastened to the wall — as per the professional standard of care — the student would not have been killed.

The second case involved a television that sat atop a movable cart. Teachers used the cart regularly to move the TV from one room to another and then into a hallway storage closet at the end of the day. In the morning, the teacher wheeled the cart with the television to her classroom and set it up for a small group of children to watch. Later, she was busy with another group when she instructed two third graders to take the loaded cart down the hall and put it in the closet. Along the way, the children began to play on the cart — one standing on the bottom shelf, holding onto the sides, while the other pushed. When the child pushing the cart let go of it, the cart tipped in the direction of the student hanging off the front. The 55-pound TV slipped off the cart and fell on the child’s head, causing permanent brain injury.

As with the case involving the table, the test for actual causation in this instance is whether the plaintiff could establish that the child’s injury would not have occurred if not for the administrator’s and the teacher’s negligent conduct. A reasonable administrator would have notified teachers that children would not be allowed to push carts with TVs on top of them. In fact, in this case, the cart had a sticker on it stating “only to be moved by an adult.” Moreover, this particular cart earned the distinction as a dangerous piece of equipment by the U.S. Consumer Product Safety Commission (CPSC) because of numerous injuries resulting from its design. Although the manufacturer was notified of the CPSC warning and provided this information to those who purchased the cart, the school either did not receive the warning or did not consider it when assessing the overall safety of the facility and equipment. The cart was not taken out of service and teachers were not warned to prohibit students from pushing it.

Elements of Tort Law and School Liability

Summary

Schools and agencies have a responsibility to care for and protect children from harm. They must act in a way that is reasonably calculated to maintain the health, safety, and well-being of children. An analysis and assessment of what was reasonable in the totality of the circumstances surrounding the death or injury of a child can be challenging. Determining what was reasonable under the circumstances addresses the question of whether appropriate actions within the professional standard of care were taken to protect the child from harm.

Applying the reasonable professional standard within the context of the situation provides a focus. This is best done by someone with a thorough understanding of how schools and agencies work and how a reasonable and prudent administrator would act in a specific circumstance. Attorneys who don’t have a clear picture of how systems work — or should work — in these settings often misjudge the merit of filing a lawsuit or the strength of a defense against one in cases involving a student injury or death. The two examples in this article illustrate the complex analysis required for a full understanding of a situation and its implications for determining liability.

Remember the two key questions: “What would a reasonable administrator or other employee do in the same or similar circumstance?” and “If this person acted differently, as a reasonable administrator, would the injury or death have occurred?” Attorneys who have the answers to these questions may be able to improve their assessment of a case.

School Safety and Security: Tips for Assessing Liability in School Violence Lawsuits

School Violence Lawsuits

Students and their parents have an expectation that schools will keep them safe from harm.

The uncertainties surrounding the Massachusetts teacher murder of Colleen Ritzer last month and the death of student Kendrick Johnson in Georgia earlier this year illustrate how the unexpected can occur and school safety and security is a serious concern schools administrators are faced with on a daily basis. Schools have a duty to protect students, and students and their parents have an expectation that schools will keep them safe from harm. In the school context, appropriate supervision compels a school to take proactive steps to provide a reasonably safe environment. The school is not expected to supervise every activity of its students every minute of their day, but when it has knowledge of circumstances that may pose an unusual safety risk, administrators are obligated to go beyond mandates to develop and implement standards of care that create a reasonable environment of safety. In this article, we will explore this idea through a couple of case studies.

Each school’s unique setting and student environment play a role in the development of appropriate policies and procedures designed to protect students’ safety. If, for instance, an urban school is located in a high-crime area with gang activity, the administrator has a duty to observe and assess the milieu and to develop a plan for keeping students safe. These procedures may include assigning school resource officers on each floor of the building, training staff in gang-related issues, or installing a metal detector at the door. If the school determines a metal detector necessary, then it has a duty to train staff in its use and maintenance.

Twenty miles away in a leafy suburban town, another school exists. Here, there is no gang activity, the crime rate is low, and an assault on a student or staff member has never occurred. In this context, a metal detector isn’t likely to be necessary, but — as with most schools around the country — the administrator will develop procedures to screen visitors. These procedures will likely require locked doors, a surveillance camera at the front door, and a buzzer. Under the procedures, the person screening the visitor may be required to ask specific questions, such as the person’s name and the purpose of the visit. Once a legitimate reason for the visit is established, the door is unlocked.

But even in a seemingly safe environment — with all the protection of armed officers, metal detectors, policies and procedures, and locked doors — a student or teacher can be seriously injured or, worse, murdered as recently happened in Massachusetts teacher murder.  In some cases, it’s easy to see where a school failed to pay attention to obvious dangers. In our urban school, an out-of-repair metal detector failed to pick up a weapon smuggled in by a teenager intent on killing a student in a rival gang. In other cases, it is more challenging to determine where or whether failure occurred. In our suburban school, a woman known to the screener said she was there to bring her nephew the lunch he left at home. After being buzzed in, the woman walked to a first grade classroom, pulled a revolver from a lunch bag, and killed the teacher in front of the students.

School’s Duty to Protect Students

At the school in the first example above, there was a recognized need for a metal detector at the entrance because of known gang activity and a past history of on-campus violence. The school made a decision to install a metal detector to protect students. Once that decision was made, it could be viewed as an admission that interventions are needed to curtail dangerous behavior. Therefore, the school also took on a responsibility to ensure that the metal detector was always working properly. If the metal detector failed and a student entered the school with a weapon and injured or murdered another student, then the school may face a lawsuit for neglect.

In the example of the second school, the administration determined that it needed only a front-door check-in system, based on its assessment of the environment around the building’s location. There had never been an assault in or around the school, so the risk of harm was deemed to be low. As with the urban school’s decision to use a metal detector, this school chose to implement a safety policy — this one requiring front-door screening. Once in place, that policy must be enforced, regardless of who is at the door.

Schools develop and implement safety plans to protect their students. Both schools in our example consciously took steps to do this. And yet, at both, someone was murdered.

An attorney’s Approach to Litigation Cases Involving Schools Safety and Security

Attorneys are advocates for their clients. In the case of the murdered gang member, the plaintiff attorney will argue that the school breached its duty to protect her client from harm, and this failure was a proximate and direct cause of her client’s death. A staff member was supposed to be on duty but was not. The lighting was less than adequate, failing to meet the local building code; the school hallway was overcrowded; and the metal detector failed. Together, she will contend, these were a recipe for disaster.

The defendant attorney, on the other hand, will argue that the incident would have occurred even if a staff member was in close proximity because the murder happened quickly and without warning. He will also admit that the lighting failed to meet the standard, but will add that it was adequate and even with better lighting the incident could have happened. As to the alleged overcrowding, the defendant attorney will argue that this had nothing to do with the incident and that, because of budgetary issues, the school was operating double sessions. Metal detectors and other security systems fail, but was the alleged failure a proximate cause of the incident? After all, the student could have thrown the weapon into the building through an open window and retrieved it after going inside.

Looking at the case of the suburban shooting, the defense attorney will argue that the school determined the level of security necessary to protect the students and implemented a standard of care. She will argue that there was no way the screener could have foreseen that a person known to the school would enter under false pretenses and kill a teacher with whom she had a neighborhood feud. The plaintiff attorney will argue that the school had a duty to conduct a stronger screening at the door, escort the person to the classroom, or call the student to the office.

Assessing Professional Standard of Care in School Violence Cases

In assessing liability, plaintiff and defendant attorneys should first determine whether a school met the professional standard of care under the circumstances. That standard begins with legally mandated requirements and cascades down to school policies and procedures. Professional standards may be required through statutes, ordinances, or regulations; set forth by relevant organizations, such as the National Fire Protection Association, American Academy of Pediatrics, American Camping Association, National Federation of State High School Associations, or U.S. Consumer Product Safety Commission; or constitute the customary professional practice of those conducting such activities or operating such facilities.

An attorney must assess the professional standard of care, the resulting duty, and whether the school met the duty. In this process, both plaintiff and defendant attorney should consider two principles:

1.            Compliance with standards does not necessarily entitle a school to summary judgment. Some standards may not have been adequate for the situation. When there is a known gang rivalry in the area or when a student known to have severe behavior problems is in the hall, having a teacher walk the hall between class periods may meet “compliance” but might not be the most appropriate standard under that circumstance. Appropriate action must be viewed in the school context and with an understanding of specific information about individual students. Customary industry practices are relevant for determining whether a standard has been met, but compliance alone is not determinative of the standard that a specific situation might require.

2.            If a school did not comply with standards, evidence of proper care is much easier to show. Some standards may not be related to the injury or loss; there must be proximate cause. In some situations, the level of care promulgated by the standard may not be necessary for providing a safe environment; the standard may go beyond a minimum requirement.

Foreseeability

In our two examples, can it be demonstrated that the risk of injury or death was foreseeable? To a reasonable administrator, could the murder of a student in a school where gang members roam the halls have been foreseen? Could action have been taken to prevent it? In the suburban school, could the murder of the teacher by a known visitor who was allowed entry to the building via a well-established procedure been foreseen? Could action have been taken to guard against it? School officials’ conduct cannot be considered unreasonable if the risk is unforeseeable.

The test of foreseeability is foresight. The administrator in these and other situations where safety is a concern must, from the circumstances, be able to foresee a danger to the student or teacher that presents an unreasonable risk necessitating protection from harm.

The gang murder case illustrates this point. In this school, it was well known that there was a high level of gang activity in and around the school. Teachers recognized the wearing of colors representing rival gangs and were on heightened awareness of the potential risk of harm to students when disputes erupted between gang members. The school was undergoing a large construction project that forced students to be re-routed through a tunnel between classes. The unusual traffic pattern created by the construction provided less visibility and more crowded conditions, and this, coupled with the gang activity, prompted a decision that a staff member would be assigned to the tunnel for extra supervision. Thus, the school did foresee the potential for danger that presented students with an unreasonable risk of harm.

The standard of care established in this circumstance was that the school was to have a supervisor posted in this location to watch for danger and intervene where necessary. But on the day of the murder, the school breached its own standard of care by not assuring that a supervisor was there. In the unsupervised tunnel, an argument erupted between two rival gang members, a weapon was drawn, and a student was killed.

Looking at the case of the suburban shooting, the school appeared to do everything right. It followed its duty by screening the person — but someone was still murdered. Could it have been foreseen that a personal disagreement involving a staff member and a neighbor would spill over in a classroom full of children? A reasonable school administrator would be unlikely to conclude as much.

Proximate Cause

Before a school can be held liable for alleged negligent conduct, it must be proven that the negligent act caused the injury. Mere occurrence of an incident, like the murders in our examples, does not support an inference that the school was negligent. The plaintiff has the burden to prove that the school was negligent by its action (or failure to act), resulting in injury or death.

Thus, in contrast to the test of foreseeability, the test of proximate cause is hindsight. Would the incident have occurred if the school had acted appropriately and within the professional standard of care in the circumstance?

In our examples, both attorneys can apply the probable consequences rule. According to this rule, the school would be liable if an incident was the natural and probable consequence of one’s negligence. In the urban school, a reasonable administrator might conclude that the school is at fault because it had notice of the danger and set out to protect students by establishing standards, yet failed to meet its standards of care. In the suburban school, the school set out to protect students from danger, put a procedure in place, and followed the procedure and its standard of care — yet the murder still occurred.

Summary

Schools have a duty to keep students out of harm’s way. Most often, they succeed. However, even when protections are implemented, a student or teacher can be seriously injured or murdered. For attorneys, assessing the merit of filing a lawsuit or the strength of a defense hinges on a clear determination of three elements: the professional standard of care; the duty of the school; and whether it was foreseeable that a student or teacher could be hurt or killed if the school breached the standard.

Through this process, it will become easier in some cases to see where a school failed and injury or death resulted. In other situations, it will be evident that the school took every reasonable step despite the occurrence of an injury or death. Analysis of the facts, as seen through the eyes of a reasonable school administrator, can hold the key to whether to file, strongly defend, or settle school liability cases.

School Safety Expert on Student Injury Liability and Negligence

Children in the United States under the age of 15 sustain more than 14 million unintentional injuries each year. It is estimated that 10 to 25 percent of these injuries occur in and around schools.

Negligence of teachers, coaches, camp counselors, bus drivers and others resulting in injury to a child is ever present the news. Negligence that results in sexual abuse, death, injury from faulty equipment, and sports accidents all present opportunities for large settlements or jury verdicts.

Plaintiff and defendant attorneys can follow a few recommended steps to determine the merit of filing a complaint and the strength of a defense.  In this article, school safety expert presents a systematic process  to guide attorneys when assessing student injury liability as the result of negligent employee behavior in schools and agencies.

Professional Standard of Care

Schools and other agencies that supervise children are held to a high standard of to protect the health, safety and well-being of children. A reasonable school or agency administrator or teacher/supervisor standard is applied when assessing school and agency negligence. This standard compares how another person of the same education, training and experience would respond in the same circumstance. This goes beyond the typical “reasonable person” standard and requires an assessment based upon the professional standard of care in the field of child supervision. When a child is injured, dies, is assaulted, or sexually abused often the outcome is a lawsuit claiming negligence on the part of the staff member. The court might find the school or agency guilty of a tort if the employee breached a professional duty which can be demonstrated as a proximate cause of the injury. If, on the other hand, the school or agency, through its employee, acted reasonably under the circumstances and within the professional standard of care, the defense is likely to prevail.

School Related Injuries

Because nearly 80 million children in the United States and Canada spend a great deal of their waking hours in school the potential scope of liability for negligence resulting in injury is broad. Public perception, however, tends to distort both the extent of school liability and the nature of injuries that children sustain while at school or when engaged in school-based activities.

Public attention on student injuries often focuses on school violence because that is what the media report. However, the vast majority of injuries to children at school are accidental and minor. Studies indicate that school-aged children are nine times more likely to sustain an unintentional injury than to be the victim of an intentional injury while at school.

Children in the United States under the age of 15 sustain more than 14 million unintentional injuries each year. It is estimated that 10 to 25 percent of these injuries occur in and around schools. In all, 1 in 14 students suffers a medically attended or temporarily disabling injury at school. [1]

In elementary schools playgrounds are associated with the preponderance of injuries. In secondary schools, athletics, including both physical education classes and organized sports, account for the majority of injuries among students. [2]

Extent of School Liability

Zirkel and Clark (2008) analyzed the trends in the frequency and outcomes of published decisions of student-initiated negligence claims in K–12 public schools in the United States. In each of these cases, schools and/or personnel were named as defendants. The researchers analyzed a representative sample of 212 published decisions involving personal injuries to students during a 15-year period from 1990 to 2005.

The sample included only student claims of simple negligence and excluded actions that alleged gross negligence, intentional torts, and educational malpractice. The sources of the data were the Sports and Torts sections of the Education Law Yearbook (ELA 1991–2006). The authors selected every fourth case within these boundaries to develop their sample.

In almost two thirds of the cases in this sample, the school successfully defended itself conclusively. The plaintiff won conclusively in less than one tenth of them.

The 212 decisions ranged across 40 states, with the largest number of total decisions in New York (n=66). On a per-capita basis, New York again led the nation, with 23 decisions per 1 million students. Among the 24 decisions (11%) in which student plaintiffs won conclusively or otherwise were awarded damages, Louisiana recorded the most (n=9), while New York (n=3) was the only other jurisdiction with more than one decision in the student’s favor. Louisiana, therefore, had the highest rate of decisions against schools, with students winning damages in 9 of the 14 cases during the study period (64%).

Among the various bases for decisions in this study, government and official immunity was the most prominent factor (46 percent) in school-favorable outcomes. The plaintiff’s failure to prove breach of duty, one of the elements of negligence to be discussed below, was the key element in 41 percent of cases decided in favor of school districts.

Secondary schools accounted for a notably higher frequency of published negligence decisions, a greater than 2-to-1 ratio. The authors attributed this to several factors that typically distinguish high schools from elementary schools: the greater availability of risky specialized activities; a larger proportion of students who are prone to violence; and generally larger student bodies. Primary schools accounted for a significantly higher proportion of conclusive decisions in the plaintiff-students’ favor (16% vs. 7% for secondary school students). In large part, the authors note, this is likely because younger students are considered more vulnerable, which places a higher duty of care on the school and contributes to a lower incidence of contributory negligence.

Among cases either decided conclusively in favor of student plaintiffs or where students were awarded damages, the most frequently named negligent individuals were coaches (n=5). Teachers were the source of the negligence in only two decisions, and in both cases, the teachers were not found personally liable. Other decisions were attributable to transit-related activity (n=12) — defined as the student riding on a school bus, walking to or from a bus, or walking between home and school; negligence in maintaining the premises (n=3); supervisory failure to prevent a student-teacher sexual relationship (n=1); and student bullying (n=1).

The key findings of this analysis, that the frequency of published decisions remained stable and that schools won the large majority of cases, are contrary to the general perception that school negligence is a major and increasing source of liability for schools. In fact, it is neither. This is a perception that is fueled by a number of factors, such as campaigns by political lobbying organizations and the liability insurance industry. It is also fed by the news media, which report on a handful of high-profile cases showcasing emotionally charged people. In truth, most cases that are similar to those reported by the media never make it as far as a courtroom. It should be noted, however, that in the small sample cases in which students won conclusively or received partial damages, the average known award was significant — $430,000.[3]

These findings illustrate the importance to attorneys of understanding what juries look for when determining a school or agency liability for the injury of a child. Let’s review the elements of tort law as it applies to school liability.

Elements of Tort Law and School Liability

Tort law provides a framework for determining school and agency liability.

Tort claims in the context of schools and agencies are based on the premise that an employee is liable for the consequences of his or her conduct if it results in injury to a child. The majority of child injury lawsuits involve claims of negligence. Tort claims are governed by state and provincial laws, but as with any negligence claim, each of the following elements must be assessed by both plaintiff and defendant attorneys: duty to protect, failure to exercise a reasonable standard of care, proximate cause, and actual injury.

Plaintiff and defendant attorneys should consider the following questions when assessing a school or agency liability for injury:

  • Did the school or agency have a duty to protect the child in the particular situation?
  • What was the reasonable standard of care under the circumstances, and did the school or agency apply that standard?
  • If there was a breach of the standard, was it a significant factor in causing the injury?
  • Did the party contribute to the injury through his or her own negligence?
  • Where there any intervening variables that may have interrupted the proximate cause or causation of injury.
  • Was there substantiated injury?

Duty to Protect

School and program administrators and child supervisors have a responsibility to anticipate potential and foreseeable dangers and take reasonable precautions to protect children from those dangers.

With respect to activities that take place during the school or agency program, the duty to protect is usually easy to prove. In addition to the school day and on school grounds, courts have held that this duty may apply beyond school hours and off school grounds. For instance, the school may have a duty to protect children on a school-owned or a contracted school bus. A teacher or aide may have a duty to protect a student from wandering off during a class trip. A teacher may have a duty to protect a student whom he drives home from football practice on Saturday morning.

Failure to Exercise a Reasonable Standard of Care

If a school or agency employee fails to take reasonable steps to protect a child from injury, the employee can be found negligent. Courts will weigh the actions of an employee against how a reasonable employee would have acted in a similar situation.

For instance, would a reasonable teacher hand a pair of a sharp scissors to a third-grader and ask her to scrape hardened clay from a wall while standing on a ladder? Would a reasonable custodian fail to repair a latch on the cafeteria wall that holds a 300 pound table in place? What precautions or level of supervision should the school or agency consider to protect children from injury in these situations?

The degree of care exercised by a reasonable administrator, teacher, bus driver, or other employee of a school or agency is determined by considering:

  • The employee’s training and experience;
  • The age and capacity of the child;
  • The type of activity and, if necessary, was the child trained and warned of dangers;
  • Whether the supervising employee was present; and,
  • The environment in which the injury occurred.

An elementary school student and a child in a pre-school age daycare center will typically require more supervision than a high school student when playing on the playground or on a class trip. And students in a physical education class will require closer supervision than those who are reading quietly in the library.

A child’s disability, if one is present, presents an additional layer to the definition of reasonable standard of care that must be considered. A child with a known behavioral disability, for instance, may require closer supervision on the playground. Courts have held that several factors, such as a student’s disability and unique needs, are relevant in determining a reasonable level of supervision in certain situations.

Proximate Cause

Did the school or agency employee fail to exercise a reasonable standard of care, and if so, did it place the child in harm’s way and result in injury?

The ability to prove this element, called, proximate cause in the United States (or causation in Canada and remoteness in the United Kingdom), depends on establishing that a child’s injury could have been foreseen and prevented. If the injury could have been anticipated and prevented by an employee’s exercise of a reasonable standard of care, legal causation may exist.

The question to ask is whether the injury was a natural and probable result of the wrongful act and should have been foreseen and could have been prevented in light of the circumstances. A wrongful act could be described as failure to supervise, for instance, or could involve a deliberate action such as sending a student off campus for a non-educational reason, however well intentioned, that leads to an injury. Let’s look at an example of a deliberate action. A woodshop teacher replaced a broken bolt for a protective device on a table saw with a bolt he finds in a desk drawer. The teacher knew that the bolt didn’t meet the manufacturer’s specifications but decided to use it anyway. Three days later, the device came loose and a student nearly severed three fingers while using the saw. A jury could determine that the teacher’s decision to use the nonstandard bolt was a deliberate action and proximate cause of the student’s injury.

A negligence claim will not be successful if the injury could not have been prevented, even when reasonable care is exercised. The inevitability of an accident nullifies proximate cause. This may hinge in part on whether the child contributed to his or her own injury. Let’s return to the woodshop and the table saw. Another teacher provided clear instruction on how to use the saw, tested each student with a paper and pencil test and individually observed and instructed each student at the saw. Students were provided with the safety rules and told of the danger of using the saw in the wrong way. The saw was regularly inspected and taken out of use if in need of repair. A student disregarded the instructions and warnings, used the saw inappropriately and was injured. Is the school liable for the student’s injury? Did the student contribute to his injury?

Contributory Negligence in School Liability Cases

If it can be revealed that a child contributed to the injury, the school or agency may invoke contributory negligence, a common defense against liability. If the court holds that contributory negligence was a factor in the child’s injury, the school or agency may be held only partially liable or not liable at all, depending on the jurisdiction. It is difficult to prove contributory negligence against children under the age of seven because tort laws generally hold that young children are incapable of contributory to their own negligence at that age. If, for instance, a pothole in the playground blacktop is marked off with orange cones, contributory negligence may not be a factor if a young child walks through the cones, trips in the pothole, and breaks an ankle. Even with adequate barriers and warnings on the playground, a young child may not be expected to understand the danger and protect his own safety and a child may be able to collect damages even if she contributed to her own injury.

Actual Injury

The presence of an actual injury is the final element that must be proven in a school or agency negligence case. The injury does not have to be physical — it can be emotional — but it must be documented and sustainable. Without a provable injury, damage suits will not be successful — even when negligence is involved.

School Liability

Understanding School & Agency Liability Involving Child Injuries

SUMMARY

The extent of claims against schools for negligence has remained fairly constant for more than two decades. Overwhelmingly, published decisions in simple negligence cases have favored school district defendants. A large proportion of these decisions have hinged on government and official immunity and on failure of plaintiffs to prove breach of duty.

Courts have examined the key elements of negligence in the context of schools and agencies responsible for the health, safety and wellbeing of children and the reasonable professional standard of care. It is important for attorneys who seek to bring a case against a school or agency, and attorneys who defend schools and agencies to have a system to determine the extent of a school or agency liability for the injury of a child.



[1] National SAFE KIDS Campaign. School Injury Fact Sheet. Washington: NSKC, 2004.

[2] Ibid.

[3] Zirkel, P.A. and Clark, J.H. “School Negligence Case Law Trends.” S.Ill Univ Law J. 2008:32; 345-363.

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

Antibullying Programs

Legal Standard of School Bullying in US and Canada

Bullying Legal Standards

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

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

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

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

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

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

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

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

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

What is Bullying?

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

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

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

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

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

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

Are Antibullying Programs Working?

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

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

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

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

Who is the bully?

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

Bullying a Public Health Issue

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

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

Where do we go from here?

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

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

School Liability under Section 1983

school liability

School liability under section 1983

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

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

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

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

Conditions for liability under Section 1983

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

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

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

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

Foreseeability and willful disregard

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

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

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

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

Student on student abuse under Section 1983

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

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

Damages under Section 1983

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

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

What attorneys should review

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

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