February 20, 2018

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.

School and Summer Camp Liability

summer camp safety

End of School Year and Summer Camp Liability

As we approach summer, many children look forward to graduation or summer camp, or are excited about building memories and finishing the school year with exciting field trips and proms. Few schools and camps, however, consider the liability that might stem from relaxed rules, “summer fever,” and hastily organized activities. Many children are injured at this time of year when rules are relaxed and supervision is not always provided the way it should be increasing school and summer camp liability which could potentialy lead to legal action.

Graduation activities — all-night lock-in parties, in particular — present several dangers. All-night parties under school supervision are popular because they reduce the risk of alcohol and drug abuse by students who might attend other, nonsupervised events. But they expose students to a new danger: sleep deprivation, graduation’s night silent killer and the second biggest killer on our highways. Typically, event planners keep high school graduates, who have been in school since early morning, entertained from the beginning of the party until the next morning with a variety of activities. In the morning, students leave unsupervised and in a condition that research shows is similar to alcohol or drug intoxication — resulting in car accidents and death. Yet, based on data I gathered through a telephone survey of more than 300 high schools across the United States, those who plan all-night graduation parties generally do not consider fatigue and sleep deprivation as potential risks.

A few easy and effective precautions can protect schools from lawsuits. Transporting students in school buses to the event and back home in the morning can save lives. Even if transportation is provided, adopting clear policies and procedures to protect students from driving while sleep-deprived is just as important. These policies should specify that under no circumstances will any student, staff member, or parent chaperone be allowed to drive after an all-night graduation party and must make other arrangements for transportation. Schools have a duty to protect students from harm, and no reasonable educator would allow an intoxicated student get behind the wheel of a car. Why allow a sleep-deprived student to do the same?

Field trips                                                                             

The same logic follows when it comes to end-of-the-school-year field trips and other activities, as well as half days and irregular schedules. Unfortunately, there are numerous cases involving field trips that resulted in drowning deaths, sexual assault, hazing, and bullying — all resulting from the lack of organization or clear rules, too few chaperones, or inappropriate supervision of certain students. Teachers in charge need to maintain high standards of supervision for all students during field trips. Some considerations include:

  • The age of the students
  • Whether a student has a disability that requires additional supervision
  • The number of adults needed to keep an eye on all the students
  • The uniqueness of the location that might require additional supervision
  • Safety hazards at the site, such as a river, cliff, or highway

All of these issues should be considered and addressed before the administration approves a trip and sends notices home to parents. Planning, clear rules and policies, and appropriate supervision can save a student’s life and prevent a costly legal battle for the school if a child is injured while participating in the activity.

Summer camp liability

Parents should keep liability issues in mind when researching summer camps they want their children to attend. Overall, summer camp can be a valuable and fun opportunity for any child, as it is a place to try new things, meet new people, and develop as a person. On the other hand, camps can be full of hidden liability traps; sleep-away nights, horseback riding, archery, rifles, rope swings — all involving children who are supposed to be supervised by trained adults (in some circumstances, college students) — are accidents waiting to happen. Cases involving campers being injured or sexually abused as a result of poor supervision and staff training are not unusual.

To avoid exposure to a litigation-conscious population, summer camps have instituted the practice of making campers and families sign all-inclusive liability waivers. When well-written waivers have been in place, many verdicts have favored camps and other agencies that supervise children’s programs because parents released them from liability. If a camp or agency institutes clear policies, follows procedures, and does everything right, it is highly unlikely that a parent would win an injury lawsuit.

All-inclusive waivers, however, do not always protect a camp. A waiver is not valid if an injury can be attributed to the camp having breached a standard of care or if it was careless or negligent about supervision. If, for instance, the camp or agency didn’t maintain its playground equipment properly and a child was injured, the camp may be liable, invalidating the all-inclusive waiver. Depending on the specific issue of supervision (or lack of it), an all-inclusive waiver might not protect the camp.

10 considerations

Numerous elements should be reviewed when examining cases that involve injury at a school-sponsored event or summer camp. In no particular order, here are 10 key considerations:

  1. What risk-management procedures does the school or camp have in place?
  2. How are staff, counselors, and volunteers screened and selected? Are criminal background checks performed prior to supervision — even for summer jobs?
  3. How are volunteers trained before they supervise on a school- or camp-sponsored trip?
  4. What kind of discipline code is followed? Is it enforced? By whom?
  5. Are yelling, bullying, harassment, or physical force tolerated? How are incidents of violence and abuse handled?
  6. Do students or campers know whom they can talk with and what to do if they feel unsafe?
  7. Are appropriate procedures in place to prevent teachers, counselors, and volunteers from being alone, one-on-one, with children?
  8. Are at least two counselors or adults present in each cabin at a sleep-away camp?
  9. On class trips, is there adequate supervision for the size of the group? Are there, for example, at least two staff members or volunteers for class trips of eight or ten students?
  10. Are age groups reasonably established and kept separate for activities and sleeping?

Meticulous planning will not necessarily prevent lawsuits in case of an injury, but it will keep children safer and could help a school, camp, or agency avoid liability. School and camp administrators should instruct their staff to consider all the possible dangers that might cause injury to a child at an all-night graduation party, a field day activity on school grounds, a day or overnight trip, or other end-of-the-year or summer activity. Make a list of how each of these possible dangers can be avoided. Looking at the possible unfortunate outcomes of injury and planning for the protection of children is the duty of those responsible for children in schools and camps.

Another Look at Guns in Schools: Liability

school liability

Guns, Student Safety & School Liability

South Dakota became the first state to enact a law explicitly authorizing school employees to carry guns on the job. Several other states already have provisions in their laws — or no legal restrictions — that make it possible for teachers to possess guns in the classroom. In fact, a handful of school districts do have teachers who carry firearms. Eighteen states allow adults to carry a loaded gun on school grounds, generally provided that they have written permission from an administrator or the school board. Only some of those laws specify reasons for giving teachers or adults the authorization to carry a firearm.

The American Federation of Teachers and the National Education Association have campaigned against such measures, but not all teachers and administrators share their position. In Tennessee, the membership of Professional Educators of Tennessee, a nonunion professional organization, is split about 50-50 on proposals like this. J.C. Bowman, a spokesman for the organization, told reporters in Chattanooga, “Some don’t want the responsibility, and they worry about liability.”

School liability for injury from guns

Liability, the legal responsibility for damages, is a real concern whenever something can possibly cause harm to a person. Poorly designed playgrounds, heavy televisions not properly strapped to a TV cart, poorly lighted parking lots — and guns — all present a risk of harm to kids and staff. Take, for example, the potential for harm when a security officer left a firearm unattended in a Michigan charter school bathroom. The school claimed that no children were in danger. Was there a risk of harm?

From a liability perspective, consider this potential scenario: What if two students went into the bathroom when the gun was left there? One student picks up the gun and, out of curiosity, pulls the trigger, shooting and seriously wounding — or worse, killing — his classmate. How would that situation play out in terms of negligence? Would the school be liable? Negligence is the failure to exercise the standard of care for the wellbeing of others that a reasonable and prudent person would exercise under similar circumstances. If this school employee breached his legal duty to protect students from an unreasonable risk of injury by leaving his gun in the bathroom (negligence) and a student was harmed (proximate cause), would the school be liable for the security guard’s negligence?

In the wake of the shootings at Sandy Hook Elementary School, one Pennsylvania state representative proposed that with proper training and certification, teachers should be allowed to carry guns in classrooms. The security officer’s actions in Michigan, however, raise questions of whether he was properly trained and whether his superior or principal appropriately supervised him. Appropriate and adequate training and supervision are elements, once demonstrated, that can help to protect a school from liability stemming from an employee’s negligence. If the board of education, for instance, approved a rigorous training program that attuned the security officer to the risks firearms in school and how to protect students and others from harm, the court may be convinced that the school provided appropriate training. The school, then, might not be found liable if the officer fails to exercise proper control of his weapon, in violation of school policy.

The National Rifle Association has called for arming school security officers. Could more guns in schools prevent another Sandy Hook, or does it create opportunities for negligent behavior and school liability? Does it really help our kids feel safe at school?

Some students and teachers say that placing cops in schools to keep kids safe often has the opposite effect — it intimidates students. In effect, it makes the police the de facto disciplinarians in schools. Some students have voiced the feeling that they’re walking into a prison every time they enter their schools patrolled by armed police officers. One student dropped out of school because her backpack and pockets were searched every time she came to school.

The National Association of School Resource Officers, a training organization for police officers who work in schools, received more than double the normal requests for training after the Newtown tragedy. Properly trained school resource officers (SROs), working with school employees and students, can help to create a safe school environment. Susquehanna Township, Pa., Police Chief Rob Martin, whose department has assigned an SRO to the Susquehanna Township School District for the past 7 years, told the Harrisburg Patriot-News that staffing a school with an SRO “is about helping them, counseling them, guiding them through a very tough period in their lives.” It’s not, he added, about arresting kids or finding kids in trouble. When part of an effective school safety team, SROs can benefit schools and develop positive bonds with students. The officers can train faculty and staff to deal with emergencies, help to develop safety plans, conduct safety drills, and teach students about personal safety. SROs can also humanize police who are in the school on a regular basis and are there to kelp kids.

But it can also go very wrong.

David came to his middle school with a knife some described as a machete. He walked into the SRO’s office, a 9-by-12-foot space with a desk, chairs, and a filing cabinet. He approached the SRO and, according to the officer, threatened him with the knife. Several teachers watched events unfold through a window but were helpless to intervene. The student was shot 12 times by the officer, who never even attempted to leave the room for his own safety. The student had a behavioral disorder and was in a special class where he received behavior modification and counseling. His teachers knew how to use strategies to calm David, “disarm” him emotionally, and even to take the knife from him.

The school never communicated this information to the SRO, who acted in a negligent way by all standards. Is the school now liable for this student’s death? In this case, the key question becomes whether the school adequately trained the SRO regarding the needs of the student and how to deal with his behavior. If it did not, the school may be vulnerable to liable for the actions of its SRO.

This incident raises an important consideration in any discussion about arms in schools: Whether a school provides appropriate training in interactive skills between students and staff.

In a small private school for children with behavioral disorders, a high school student acted out violently after his teacher directed him to do something that he didn’t want to do. The student rampaged through the school and into the parking lot, brandishing a pair of scissors. The school called 911, and three local police officers confronted the student as he ran from the school. “Put down the weapon,” the police commanded. “Put down the weapon. Put down the weapon.” The student ran toward the officers. According to police procedure, one of the officers shot and killed the student.

The town and its police department were exonerated because, according to the judge, the procedure met the standard in the field of police work and the officer acted in accordance with the standard. The school, however, severely missed the mark. The school through its teacher, counselors and administration, created a situation that caused this student to snap — leading to a situation requiring the police to “control” him and ending in tragedy. In this situation, even though school personnel carried no weapons and did not shoot the boy, it was sued for negligent supervision of the student alleging its failure to act in a way to protect the student from harm. The school filed for summary judgment which was granted by the court.

Key issues: training, risks, and obligation

Is security a state of illusion? Are there risks of liability if things go wrong? These are serious questions that schools need to explore. Of course, there are liability risks. If something goes wrong, what should an attorney review? One of the most important elements is training. Was the person carrying the weapon appropriated trained? What did that training consist of? Was the person informed about specific students and how the staff deals with them so that the student doesn’t escalate the danger to a point of no return? Is there a risk of calling the police to handle a student when the police don’t know the student but the school possesses the skills to “talk the student down?”

Preventing school-related injuries is an ethical and legal obligation for schools. Whether arming school personnel increases or decreases this risk is a matter of debate. It also raises important questions about the type of culture we want to cultivate in schools. Because a wide range of injuries are litigated and often require schools to pay costly awards to injured parties, the issue of guns in schools takes on even greater importance.

Addressing Sexual Harassment in Schools to Avoid Lawsuits

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

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

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

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

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

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

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

Questions regarding Sexual Harassment in Schools

The questions in all three of these cases are:

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

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

The administrative test, therefore, is:

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

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

Abduction of Students from Schools is Preventable with Proper Safety Procedures

School Safety and Security

Keeping students safe at schools and away from dangers of abduction is schools duty.

Recently another child didn’t make it home at the end of the school day. This time, it was because a substitute teacher at Bryant Elementary School in Philadelphia handed over a 5-year-old to an adult whom school personnel didn’t properly screen.

Posing as the girl’s mother, a woman walked into the school and signed in at the front desk. In violation of school safety protocol, she walked not to the school office but directly to the classroom. There, she told a substitute teacher she had come for the child — and took her out of the building. Several things went wrong here: Because the woman never went to the office, nobody checked her identification. The substitute teacher handed over a child to an adult without finding out who she was or checking with the office.

After a day- and evening-long search for the girl, a sanitation worker found her clad in just a T-shirt — shivering and crying for help but otherwise OK — in a playground at 4:30 the next morning.

How does something like this happen when we have been so sensitized to school safety following the atrocity at Sandy Hook Elementary School? How did this happen in any school, where staff has a duty to protect children from harm? Kids are in danger when adults fail to pay attention and become complacent.

It was a lot easier for the substitute teacher to let the child go with someone he did not know than to contact the office and follow the school’s protocol. Was the person at the sign-in desk distracted — or just unobservant? Why didn’t he or she make sure that the visitor went to the office, where her identification would have been checked?

Having a policy isn’t enough

When it comes to protecting our children, don’t ever take the easy way out. It can lead to tragedy.

In the nearly 100,000 public and 33,000 private schools in the United States, administrators, teachers, and other staff sincerely want to protect children from harm —and, as we saw at Sandy Hook Elementary, some even die protecting their children. Schools establish procedures to protect kids — things like checking the identification of anyone who takes a child out of school; making sure the identification matches an up-to-date list of people approved to take the child; ensuring that the child knows the person; and, if it’s not the parent picking up the child, that the parent knows who’s there and gives permission. But, as with the Philadelphia incident, procedures don’t protect children when adults don’t follow them.

As an education expert witness, I have provided consultation to attorneys around the country on similar cases. In one, a student slipped out of school undetected and drove off in a car, only to get into a serious accident. In another case, a 7-year-old student was allowed to leave the school with a teenage boy she didn’t know. The boy then took the child to a nearby apartment and sexually abused her.

It’s not always possible to keep an eye on every student every moment of the school day. In the case of the student who left the school undetected, it was my opinion after reviewing the issues and documents that the school had proper procedures in place and met the standard of care. The student snuck out. Was the school liable when she got into a car and drove into a tree? No. She planned to leave and deliberately evaded detection. The school did nothing to encourage her to do what she did.

It was something else, though, in the case of the 7-year-old who left school with the teenager she didn’t know. A 14-year-old called an elementary school to say he was coming to pick up his sister because their father had been in an automobile accident. The 7-year-old didn’t have a brother — and the father was safe at work.

The school had a set of steps in place for anyone wishing to take a student out of school early. The protocol required the secretary to check the student file to ensure that the person had the parents’ permission to pick up the child. Next, the secretary is to check for proper identification and, in some situations, contact the parent to verify that their child can leave. None of these things happened, nor did the office staff check out the boy’s story that “their father” had been in an accident. The office staff simply asked the child to report to the office.

When the girl got there, the secretary said, “Your brother is here to pick you up.” Not wanting to alarm her, the secretary didn’t say anything about the father. In a quiet voice, the student said, “I don’t have a brother.” Still, he was allowed to leave with her. The teenager, who knew the girl from the neighborhood, walked her a few blocks to his mother’s apartment, brought her upstairs, and sexually assaulted her. After the assault, he walked the traumatized little girl back to the school, left her at the front door, and walked away.

It’s not difficult for a reasonable person to figure out what went wrong in this situation. So why don’t school officials — who have a special duty to protect our kids — pay attention?

Part of the reason is leadership in the building. It’s fine to have policies. But the principal of a school is responsible for making sure that the staff knows the rules, why they exist, and the consequences for ignoring them or becoming lax in enforcing them. In too many cases involving abductions from schools, I have seen students injured or killed after a school’s good policies were not followed.

It was preventable

Returning to the Philadelphia case — what should have been done? What would have saved this little girl from the trauma she will likely live with for a long time?

Quite simply, the school should have followed its own protocol!

According to a district spokesperson, policy requires anyone taking a student out of school to go to the office and provide identification that matches a list of approved individuals. News reports indicate that the person signed in at the front door using the first name of an individual who was, in fact, on the list. No one, however, verified that this person was whom she claimed to be. That was the first breach of school protocol. The police believe the person was a stranger unknown to the girl.

The person was told to go to the office. But no one could have been watching, because the woman walked right to the girl’s classroom. Another breach of school protocol, did the school, through its staff, act reasonably and meet the standard of care in accordance with customs and practices of the field? No.

This, in my opinion, placed the child in harm’s way and created a situation that otherwise would not have existed had the school followed its own protocol. As a result of these failures, the student was abducted, taken to an unknown location, blindfolded, released, and found crying in a park.

We cannot protect all our children all the time. But it is the duty of schools to foresee that danger can come to children if safety protocols are not followed to the letter. This unfortunate situation is yet another reminder that kids are vulnerable and the adults around them have a responsibility to watch over them.

Sandy Hook School Shooting Liability Hinges on Foreseeability

The return of students to Sandy Hook Elementary School in Newtown, Conn., reminds us that a safe school is one where students can learn and teachers can teach in an environment free of threats, intimidation, violence, and fear. Children and parents should never have to experience the pain they endured in Newtown — especially in the midst of a holiday season that celebrates mankind’s desire for peace on Earth.

In a recent blog (“3 Questions in the Wake of the Sandy Hook School Shooting”), I introduced three things we must ask ourselves as a nation:

  1. Are schools developing and updating safety plans on a regular basis with the involvement of parents, teachers, and the community?
  2. Are we providing sufficient mental health services in our schools and communities — and, had the gunman had received such services, could this have been avoided?
  3. Is it necessary to allow semiautomatic weapons in the hands of civilians?

Since then, there has been a lot of discussion about the issues raised in questions 2 and 3. In this article, I will delve into the issues inherent in the first question: the standard of care in the field of school safety and a school’s liability for a student injury that resulted from a breach of that standard.


One of the most important legal concepts I consider in school safety cases is foreseeability. The scope of liability hinges on whether there is a foreseeable risk of injury. The conduct of a school administrator or employee cannot be considered unreasonable if the risk is not foreseeable. If an act cannot reasonably be anticipated, or if its occurrence — in the eyes of reasonable people — would be unlikely, it cannot be said that the event was foreseeable. If it was not foreseeable, there was no duty to provide against it.

In the case of Sandy Hook Elementary School, then, the question becomes: Would a reasonable and prudent school administrator have been able to foresee the killing of so many children by a disturbed individual with a semiautomatic weapon?

Let’s return to this question after looking at some case studies of student injury or death that revolved around the issue of foreseeability. My firm, Education Management Consulting, LLC, provided review and analysis and expert reports in each of these cases, and in some instances, court testimony.

The school shooting.In a private school in a nice neighborhood, a woman walked in the door and was greeted by the secretary. These two people knew each other from the neighborhood. There was no buzz-in or camera system at this school, but even if such systems were in place, it is very likely that the woman would have been admitted. The visitor said she was bringing her nephew’s lunch to his class because his mother was not able to come to the school.

Instead of a peanut butter-and-jelly sandwich, she had a gun in the bag. She walked to the classroom, opened the door, and shot and killed the teacher in front of 24 first graders. The visitor and the teacher had been involved in a neighborhood feud. The school was sued for negligence. Could it have done anything differently?

After review and analysis, it was my opinion that the school had no need for a system for checking whether a visitor was carrying a weapon. The school was in a safe neighborhood and a weapon had never been brought into this school. It could not be foreseen that a feuding neighbor would ask to deliver a lunch to her nephew — only to shoot a teacher. The school could have done nothing different to prevent this tragedy. I determined that the school had met the standard of care in accordance with the customs and practices of the field and was not liable for the death of the teacher.

The school bus stop. A school assigned a bus stop that required two sisters to cross a busy four-lane highway. Although there was a traffic light at the intersection, there was no pedestrian crosswalk or “walk/don’t walk” signal. The mother had tried, unsuccessfully, to have the bus stop moved to the other side of the street. One dark morning, the sisters crossed the highway to the bus stop and were hit by a car.

My opinion was that the school breached the professional standard of care, failed to act reasonably, and placed students at risk of harm when it assigned the bus stop where it did. The school would not have experienced any economic hardship by placing the bus stop on the other side of the street. The school was on notice that the parent was concerned about her daughters’ safety when she asked that the bus stop be changed. Any reasonable administrator would have foreseen the potential for student injury when the bus stop was placed in an area that required students to cross a busy highway.

The sex club.When the parents of an eighth grader found out that he was part of a “club” involving other students and their teacher, they sued the school under Title IX, which protects students from sexual harassment. The boys were having sex with their teacher at her house. The suit claimed, among other things, negligent hiring, supervision, and retention of the teacher.

In this case, I focused on whether the school had actual knowledge of the activity and whether the administration acted deliberately indifferent in the face of that knowledge. If so, did that deliberate indifference interfere with the student’s right to an education? These are the elements to consider in Title IX discrimination cases.

My review and analysis uncovered no evidence that anyone employed by the school had knowledge of this activity that would have caused a reasonable administrator to be concerned that this teacher was sexually harassing students. None of the students informed anyone at the school that their teacher was taking them to her home, nor did any inform their parents. Unaware of what was happening, the administration had no reason to act. Without that knowledge, the administration had no duty to supervise the teacher or students differently. My professional opinion was that the school could not have foreseen the events that ensued and thus was not liable for this teacher’s actions.

The TV cart.A third-grade teacher asked two students to return an audio-visual cart topped by a 50-pound television to the library — and told them not to fool around on the way. Kids being kids, however, the two made a game of it once in the freedom of the hall. One student pushed the cart from behind while the other mounted its front, holding on with both hands. The student pushing let go of her grip and allowed the cart to tip over. The TV fell onto the other student’s head, causing him permanent brain damage.

Any reasonable person — and to a higher legal degree, any reasonable and prudent teacher — would have considered the danger of sending two third-grade students into the hall, unsupervised, with a TV and an AV cart. My opinion was that the teacher breached the professional standard of care.

The javelin.Students were throwing javelins during track-and-field practice. At the end of the day, the coach announced, “Practice is over.” Several students still had javelins, however, and the coach did not collect them right away. One student was downfield retrieving her javelin when another took just “one more throw.” The javelin hit the girl and embedded in her head.

Javelins are considered weapons, and their use must be supervised carefully. It is obvious to a reasonable person that to avoid injury, a coach must be diligent in his or her supervision. My opinion was that the coach acted improperly and outside the professional standard of care. The coach should have collected and secured the javelins first, then announce that practice was over. This would have given the coach control over the javelins and the behavior of the students in his care.

Any reasonable professional in a similar circumstance would have foreseen that if practice had ended, students had vacated their practice stations on the field, and javelins had not been collected, there was a possibility that a student would be injured.

Was Newtown foreseeable?

A Hartford attorney recently withdrew his petition to file a lawsuit against the state of Connecticut claiming, among other things, that the Sandy Hook murders were foreseeable. The proposed lawsuit indicated that the state Board of Education, Department of Education, and education commissioner failed to provide a safe school setting; failed to review annual strategic school profile reports from the school district and Sandy Hook Elementary School; and failed to require the school and the board of education to implement an effective emergency-response plan.

Back to our question: Would a reasonable and prudent school administrator have been able to foresee the killing of so many children by a disturbed individual with a semiautomatic weapon? The answer, in my opinion, is no.

Solely on the basis of information reported in the media, I have drawn a preliminary opinion that Sandy Hook Elementary School did not appear to have breached a professional standard of care and did not place students in harm’s way. It is my opinion, based on the information I have reviewed, that the Newtown Board of Education, its administration, and other employees acted reasonably and met the standard of care in accordance with the customs and practices of the field.

The school had appropriate safety measures in place. Just like more than 95 percent of U.S. schools, Sandy Hook Elementary locked its doors when classes started that morning, and a system to check visitors before they were allowed into the building was in place. The gunman shot his way into the school. Teachers acted quickly to protect their children. Told that the school was in lockdown, they moved the children to designated safe areas.

At Education Management Consulting, LLC, our team of highly trained professionals reviews and analyzes cases like these. Sometimes, we must tell a client-attorney representing a school or agency that it breached a standard of care and placed a child in harm’s way. Because we provide exceptional expert-witness services, we do not advocate for one side or another. We advocate for a comprehensive review and analysis of the issues, development of a thorough expert report, and the provision of competent expert testimony.

3 Questions in the Wake of the Sandy Hook School Shooting

Children and parents should never have to experience the pain and suffering that was brought down on them in Newtown, Connecticut. What went wrong?

By all accounts, Sandy Hook Elementary School had appropriate safety measures in place. Doors were locked when class started. There was a system to check visitors before they were allowed in the building. Teachers were well trained and knew what to do in this type of emergency. There had been lockdown drills and safe places were established for children and teachers to go. Everything was done right.

There was nothing the school could have done differently to prevent this horrendous incident. No one could have predicted that a person with mental health issues, armed with an assault rifle and two other semi-automatic weapons, would shoot out the glass and force his way into the school. This is neither the type of school nor a community where a security guard is needed at the entrance. The safety measures were appropriate. The staff implemented them, went into lockdown mode, and protected their children the best they could — sometimes acting as human shields.

There are three things that we must ask ourselves as a nation after this tragedy:

  1. Are schools developing and updating safety plans on a regular basis with the involvement of parents, teachers, and the community?
  2. Are we providing sufficient mental health services in our schools and communities — and had the shooter received such services, is it possible that this would have been avoided?
  3. Is it necessary to allow semi-automatic weapons in the hands of civilians?

Safety in schools

A good school safety plan is a detailed blueprint of procedures designed to keep children safe during normal school operations and in an emergency.

It should include such things as: the chain of command; where school safety agents normally stand; visitor-screening procedures; how to report an intruder; how to cover lunchrooms if staff are absent; and provisions for security before school, while classes are in session, and during after-school community programs.

Even the best safety plans are worthwhile only if a school community is familiar with their provisions. Staff and students should know clearly what to do in everyday situations — and during a crisis.

Every school should prepare a safety plan, review it annually, and update it as the school’s needs change. It should distribute a school safety handbook to all staff and parents annually. A strong board of education policy and adequate funding to support a school safety committee are necessary.

The very lives of our children are at stake.

Mental health services

What causes me the most concern is the emerging information about the shooter as a troubled individual. A full picture is not yet available, but reports suggest he had Asperger’s syndrome, had a history of difficulty getting along with classmates, was home schooled, and eventually dropped out of school. His mother reportedly was not pleased with the way his high school dealt with his disability, and this seems to be why she withdrew and homeschooled him. Often, children with Asperger’s syndrome are misunderstood, shunned, or bullied because of their different way of interpreting social interactions. If they are not taught how to improve their social interactive skills, and if other kids misunderstand and ostracize them, it can lead to frustration and anger.

Schools generally provide some level of services for students who experience mental health or other issues that generate from a disability. But through the consulting work I do with schools and my expert witness services with attorneys, I have found that it’s never enough — no matter whether the school is in an affluent community like Newtown or the inner city. The level of services depends on the school budget, which often depends on a community’s ability to support the budget. Poorer communities don’t provide much service.

Students who don’t get along with peers usually get branded troublemakers. Standard discipline — detention and suspension — without attempting to deal with the root issues leads only to despair for the student and continued problems in school. When troubled behavior repeats itself, there’s a need to find out what is causing this student to act out, help this student understand what drives his behavior, and take steps to change it. This isn’t always easy to do. When schools don’t have the baseline resources to even consider this kind of intervention, we are on the path to losing our kids and laying our children open to being hurt.

Parents don’t usually tell others about the trouble their child brings into the family. Families keep these secrets, and sometimes, frustration builds either to the Hook of giving up or dealing with the child in counterproductive ways. These parents need help. They need to understand why a child behaves in a way that causes others to be fearful of her. They need tools that will help them at least try to work effectively with a child so that their actions do not exasperate the problem behavior.

Parents also need to know that they can’t always do it alone, and that it’s okay to ask for help. They need to feel comfortable about seeking help, and they may need help paying for these services. We need to remove treatment barriers imposed by one’s type of insurance and by insurers’ level of payment to mental health professionals.

The very lives of our children are at stake.

Gun control

I’m not going to wade into the gun-control debate, other than to say that the Second Amendment was written at a time when the militia used muskets that took several minutes to reload — not semi-automatic rifles that spew dozens of bullets in a few seconds.

In this situation, a young man with a history of social-interactive problems and little, if any, mental health support, had access to his mother’s legally registered weapons — and acted on whatever compulsion or illness drove him. If the shooter, disturbed as he may have been, had not had access to that weapon, parents today would be thinking more about their child’s upcoming winter break than whether they are doing the right thing by even sending their child to school.

Is it necessary to allow semi-automatic weapons in the hands of our civilians?

The very lives of our children are at stake.


Newtown, Connecticut, will heal, but this horrible tragedy is a reminder that we have work to do. I would like our nation to remember that while schools are, by and large, safe places, it takes the involvement of all of us to make them so. I would like our nation to focus renewed energy on the provision of, and equitable funding for, mental health services to kids and parents. I would like our nation to have the courage to take real steps toward effective gun control.

Schools are safe places for our kids. Let’s make them even safer by focusing on what we can learn from this sadness.

Child Safety Warning Signs and School Liability

Those of us who are passionate about child safety have a vision. It’s a vision we share with concerned parents, educators, and especially the kids whom schools and other agencies that supervise children, such as daycare centers or community youth organizations, have a responsibility to protect.
It’s a vision where our public schools and agencies become safe havens for kids: warm, welcoming sanctuaries that foster an environment of teaching, learning, and positive socialization — and which wall off the threats and violence that are so pervasive in our society.
In my talks across the country and in court cases I’ve worked on, it’s clear that child safety in schools and other agencies has become a paramount public concern. That’s good news if shining a brighter light on the problem makes it easier to establish a mindset that ultimately makes things safer for kids.
The potential for increased awareness to protect our kids from harm couldn’t be more timely. More and more, news reports focus on critical problems proliferating in our schools: bullying, teachers having sex with students, and rapes and murders in schools. In other places, like daycare centers, childcare programs on cruise ships, and afterschool community programs, similar tragedies occur. The mentality that something “would never happen to us” can be tragically naïve — at odds with headlines about children dying on class trips, being hit by cars at poorly planned bus stops, beating up their teachers and other kids, and being sexually assaulted in the very programs that parents trust with their safety.
As an authority on school and agency safety and a child-supervision expert witness in high-profile cases around the country, I’ve rendered opinions in a variety of cases. In some, I have concluded that a school or agency breached the professional standard of care, ultimately leading to a child being harmed. In others, it was clear that a school or agency met the professional standard of care under the circumstances. In all, a common thread is that schools and agencies that seriously consider the safety of children are less likely to be held accountable for injury.
Keep an eye out for these
Here are several situations you can find in many schools, agencies, and afterschool programs — along with concerns that may be warning signs of trouble.
Situation: Take a walk through any public or private school during a change of class, go into the cafeteria at lunchtime, or stroll onto the playground during recess. What is your first impression? Is the school calm and orderly, or are students running, shouting, pushing, and shoving? Are teachers visibly present, standing at their classroom doors and directing students in the lunch line? Does the principal stand in plain view greeting the kids in the morning and helping them on their way?
Concerns: Student conduct outside of class is disorderly. On the playground, three aides huddle in one corner and talk while students throw rocks at each other at the other end of the yard. Several kids pick on a vulnerable student in the hallway, cafeteria, or on the playground but no adult intervenes.
Situation: Do teachers, afterschool program advisers, or coaches meet one-on-one with kids? What policies does the school or agency have in place regarding relationships and contact between adults and kids? Do employees and kids both understand the boundaries of their relationships? Does the school or agency have clear rules on sexual harassment?
Concerns: Staff and kids receive no meaningful training about interpersonal boundaries. No policies and procedures exist, or no monitoring takes place, with respect to staff members’ contact with children. Teachers, afterschool program advisers, or coaches meet with kids alone behind closed doors or drive students home. Students call teachers on their cellphones after school.
Situation: Are parents contacted when a teacher is planning a class trip? Are chaperones assigned? When planning a trip, does the teacher consider the students’ age and experience, any potential hazards, and the adult-to-student ratio? Did the supervisor review the trip with the chaperones and assign specific children to each? Has the principal or agency director reviewed the activity? Are emergency measures in place to allow for cellphone and radio contact between the person in charge on the trip and an official at the school or agency, the presence of a nurse, and special provisions for students who may be allergic to insect bites or certain foods?
Concerns: Children embark on trips without parental notice. The teacher or supervisor is unfamiliar with the site and its potential hazards. The teacher or supervisor is the trip’s sole chaperone. The nurse has not been contacted to consider the students’ safety or special needs.
Situation: Go out and observe the bus stops. Where are they? If the district operates or contracts for school buses, it must make bus stops safe. Do students have to cross a highway in the dark morning or evening hours to get to a bus stop? Is there a pedestrian crosswalk and other aids such as a traffic light or crossing guard to help students cross the street safely? Do students at a crowded bus stop push and shove one another close to the road? At the end of the day, do students need to pass between parked cars in the lot or street to get to their bus? Has a school official directly observed each bus stop to decide whether it’s safe? Can parents easily register concerns about their child’s bus stop assignment?
Concerns: Children must cross four-lane highways in the dark or walk between parked cars — making them less visible to drivers. The school or agency transportation coordinator assigns stops by consulting a map but never observes students at the location. The district does not have written criteria for how a bus stop will be located and how it can be changed. Parents are unaware that they can complain or ask questions about bus stops.
Take charge
It is the responsibility of the principal — the school’s educational leader — to identify concerns and issues that might lead to the injury of children, get information from those who report them, assess the situation, make modifications, and protect the kids. At other agencies like a YMCA camp or an after school program, it is the responsibility of the program director to identify similar concerns and issues and act reasonably to protect children from harm.
Safety is something that should be at the top of every school and agency leader’s priority list. It requires open communication in a climate where everyone is aware of the need for child safety and where one individual is identified as the person who takes care of things. Remember, safety counts.

Who Did the Right Thing in the Chicago Teacher Strike? – When Kids Are Used as Pawns

I was excited and filled with hope when I landed a job as the superintendent of a small suburban school district. My ideal, if not naïve, attitude set my compass squarely on creating a climate in the school — one where the teachers, even those whom in my opinion not the best, and the kids, including those who were labeled “trouble,” somehow connected to impart knowledge and excite a “learning community.”

Then, out of nowhere, I was hit with a sack of potatoes and knocked to the ground.

“Let me introduce myself. I am Ken Foreman, the president of the teacher’s union. I am here to inform you that the teachers will not report for work tomorrow.”

Now what was I to do? I was responsible for assuring the education of the kids. I was responsible for implementing the policies and wishes of my employer, the board of education. I was responsible developing a positive working relationship with the teachers so that they would feel good about being at my school and, in turn, be excited about teaching. My only thoughts were, “How can teachers just walk out on the kids?” and “How can I keep the school open?” The kids and parents were depending on me.

It was never about the kids

My little district wasn’t comparable to the third largest school district in the country. But in looking at what went wrong, there were similar principles at work. When I was hired, the teacher’s union and the board of education had hit an impasse over salaries. The union leadership — against many of the teachers’ simple desire to teach — wanted to show muscle and bully the board into a pay increase by using the kids as insignificant objects. If kids stayed home, parents would be upset and put pressure on the board to settle.

I also came to realize that the battle between the board and the union had nothing to do with educating children. If the issue was really about what’s best for our kids, the board and union would have worked together to determine what was necessary to improve education in our district — be it hiring more remedial education teachers for kids with disabilities, adding a half-day Saturday tutoring program, or expanding art and music programs — and then do an honest determination of whether the money was there to do these things. What happened, instead, was that the teachers wanted more money, and the board said, “We don’t have any more to give you.” In reality, funding was available; the board didn’t want to have to go back to voters and try to justify a tax increase to fund raises.

In Illinois, it is illegal for public employees, including teachers, to strike over anything other than wages. This is where it gets murky. The Chicago Board of Education and the Chicago Teachers Union had been negotiating since November over class size, the way teachers are laid off and recalled, and compensation for working a longer school day. The law requires alternative dispute resolution (not a strike) as the means for resolving issues such as these. Alternative dispute resolution failed after, in my opinion, meager attempts to make it work. I am not sure that the strike was justified on the grounds of salary. Was the union acting in the best interest of kids, or was it using kids for the interests of its membership? Nearly 25% of the teachers voted against the strike. It seemed to me that the union was — just as I had experienced — using the students as pawns to get what it wanted.

Beyond classroom instruction

During the Chicago strike, the board created places for the 400,000 students who receive breakfast and lunch through the National School Lunch program to get meals they would ordinarily receive if school were in session. Only about 1% of the students took advantage of these “Children First” sites, but the board understood its obligation and provided an opportunity. But two casualties of the strike — services for kids with disabilities and the safety of Chicago schoolchildren — left kids on the streets. I don’t know if any students experienced street violence during the time they could have been in school, but statistics indicate that when kids are in school, they are safer than being on the street. As for students with disabilities, federal and state laws require implementation of individual education programs. When school is out, these students lose out. The longer they are out of school, the less likely they are to recover their losses.

I kept my school open by bringing in substitute teachers and volunteer parents. At least 85 percent of the students reported for school and we conducted a somewhat normal day. By that evening, the board and union had reached an agreement. I don’t even remember what it was, but I do remember the effort to keep the school open for the good of the kids. Bullying and power plays never benefit students. They only create difficulties after the storm settles. For months following the one-day strike in my little district, my efforts to build a climate of respect and learning were thwarted. There was resentment that I was able to keep the school open for the kids.

I had spoiled the union’s bully plan, but as an education leader, I did the right thing.

An Education Expert Weighs In on Student Injury, Negligence and School Liability

The Incidents:

The gate:
Mr. Finkel’s mind was racing as fast as he was driving. What would he see when he got to the school? Would his daughter be screaming in pain? How badly was she bleeding? Did she lose all her fingers? Three minutes earlier, the school nurse had called him at work and said there was an accident at school. “Ashley was climbing on the gate out on the field and her hand got stuck on something. I don’t know exactly what happened but there was a lot of blood. The rescue squad is on the way.”

Mr. Finkel wheeled into the parking lot fearing the worst. As he drove up to the fence where the accident had occurred, he realized his daughter has already been taken to the hospital. The principal and a few others were milling around the scene of the accident. As he ran up to the gate, he saw the blood and — to his disbelief — he found a severed finger lying near the gate.

It couldn’t be reattached.

The saw:
Mr. Moes ran a tight ship in his woodshop class. Before the students ever used a power tool, they were fully instructed in safety and proper use of the tool. Mr. Moes tested the students on paper and watched how they used the equipment. If they didn’t use it properly, he corrected them and made sure they understood how to operate it safely before they could use it without his strict supervision.

It was Friday afternoon during fourth period when Jack screamed out over the din of the table saw. He was pushing a board between the saw blade and the guide when the guide suddenly started vibrating, causing the blade to become unprotected for a split second. The saw severed three fingers from Jack’s left hand.

The path:
Alan and Dave were pretty good friends in middle school and in their upper-middle-class suburban neighborhood. They went to each other’s houses for dinner, played video games, and wrestled in Dave’s basement. The kids in this neighborhood walked to school, and Alan and Dave were no exception.

In the high school parking lot, a group of about five or six kids gathered. They proceeded to walk the paved path through the woods toward the junior high school, passing a security guard along the way. The night before was Halloween, and Alan, Dave, and their group had collected pounds of candy while trick-or-treating. This morning, the kids had brought some of the spoils from the night before.

Suddenly, Dave thought it would be fun to see Alan’s reaction when he hurled a handful of M&Ms his way. Alan, who was in a pretty bad mood that morning, twirled around and went to hit Dave with his skateboard but he blocked the attempt. It’s not clear what went down from that point, but we know that Dave punched Alan in the face. Alan flinched but decided not to retaliate. Shortly, they came to the front of the junior high school, where a half dozen or more teachers and administrators were supervising while students entered the building. Alan walked past everyone and went to the nurse’s office, where he collapsed.


The issues:

The parents of the injured students in each of the above scenarios ended up suing their children’s schools for negligent supervision. They each claimed that the school had breached the professional standard of care by failing to provide reasonable and appropriate supervision. If this supervision had been provided, according to their claims, then their children would not have been injured.

I was an expert witness in all three of these cases. Before we look at each of the three cases through the eyes of an education administration, supervision, and safety expert, I want to provide some legal background and focus. Then, I will give you my opinion as to the schools’ liability in each case.

Doctrine of in loco parentis:

The doctrine of in loco parentis means, in essence, that the individual or agency that provides for a child stands in the place of a parent and is charged with a parent’s rights, duties, and responsibilities. Under this doctrine, a school must act in relation to the child as the “reasonably prudent parent” would, protecting the child from danger and preventing the child from engaging in activities that could result in self-injury. Thus, a duty can arise from the “parental” relationship the school assumes.

The applicability of the doctrine of in loco parentis to duty should be distinguished from negligence as related to the activity in which the child is engaged. In loco parentis does not extend beyond matters of conduct and discipline. So, the school is responsible to correct students’ conduct and discipline them as a reasonable parent would, in accordance with state laws. Schools need to establish a student code of conduct with consequences for violation of the code, much like a parent says to their child “You are to be home by 9:00 PM and if you don’t show up you’re grounded for the weekend.” Once the school has established such rules and consequences they have a duty to implement them. If they fail to implement they might be breaching their standard and considered negligent.

The reasonable and prudent professional

A school is not required to guarantee a student’s safety, but to act reasonably in view of the probability — not possibility — of injury. Schools and other agencies that supervise children are responsible for providing reasonably safe premises and supervision, given the nature and conduct of children.

The standard of care required is that of a reasonable and prudent professional. Acting as a prudent citizen or parent might act is not adequate, and it is not the standard of care required in a school. A school must go beyond what a reasonable parent would do because professionals in schools have specific training that most parents do not. An educator is expected to exercise the degree of skill commensurate with his or her position. For example, a physical education instructor would have to act not only as any ordinary, reasonable, and prudent person, but also as a reasonable and prudent physical educator who has specific training and skills. The standard of care, then, would be measured by the judgment, knowledge, experience, perception of risk, and skill that a physical education teacher typically would have.

There is another aspect to the standard of care: the reasonable care concept. Negligence is the failure to exercise a reasonable degree of care under the circumstances. What should be considered “reasonable” depends on the situation and is usually determined by three elements — the activity, the environmental conditions, and the participants.

The test of foreseeability

Foreseeability is an important consideration in establishing the absence of reasonable care. The scope of liability is determined by whether there is a foreseeable risk of injury. Conduct cannot be considered unreasonable if the risk cannot be foreseen. In a given situation, a reasonable and prudent professional might foresee potential consequences that others in the same situation without his or her training and skills would not. As such, that professional has a responsibility to guard against potential consequences.

Depending on the circumstances of a situation, a reasonable and prudent professional should be able to foresee a danger to the student — a danger that presents an “unreasonable risk of harm” against which the student must be protected.


The outcomes:

Now, let’s look at each case.

The gate:

To keep cars out of the playing fields but allow service vehicles to enter when necessary, the school had installed a cantilever gate, which moves along rollers at the top and bottom. The gate had exposed, 4-inch rollers that could be covered, but the school opted not to purchase covers and install them over the rollers. Any reasonable administrator should have been able to foresee that, when students are outside at recess with the cantilever gate unlocked, the absence of protective covers exposed students to a risk of serious injury.

A group of girls was playing on the fence, pushing the gate back and forth along the rollers while some of them hung from the rail. Ashley jumped on the rail and her friends gave her a ride — one she never expected would change her life. A roller crushed and severed Ashley’s fingers. In time, she would need to learn how to play using both hands again.

I rendered an opinion that the school, through its administration, breached the professional standard of care. An injury of this nature was foreseeable. The company that made the gate provided safety covers for the rollers because there was a serious risk of harm if someone hung from the top rail — just like Ashley did. The school also breached the professional standard of care by failing to provide sufficient supervision in an area where they could have heard or seen the girls and intervened to stop dangerous behavior. In other words, the school didn’t take reasonable steps to make its premises safe.

The table saw:

The school, through its administration and teacher, did everything right — to a point. The teacher warned students of the dangers of the saw. He taught them how to use it safely and tested them to be sure they demonstrated competence in its use. The one thing the teacher did wrong was to fail to maintain the saw according to the manufacturer’s specifications.

When he first noticed the blade guard vibrating, the teacher reached into a drawer at the workbench, took out a bolt, and replaced the one that seemed to be causing the problem. The teacher caused the next problem. The bolt did not match the specifications and failed to keep the cover in place, shaking loose and ultimately leading to Jack’s injury. For all the things the teacher had done right, he failed to maintain the saw in a proper manner. As a reasonable and prudent professional, this was his responsibility — a necessary intervention to provide students with reasonable protection from harm.

My opinion was that the school, through its teacher, breached the professional standard of care when it failed to properly inspect and maintain its equipment. This breach caused Jack’s injury.

The path:

In this case, my opinion was that the school, through its administration, was not liable for Alan’s injuries. The school met the professional standard of care. The injury to the student was caused not by anything the school did or failed to do, but by the sudden and unforeseen action of another student. The school knew of one fight in the area 6 years prior, but it had happened in the woods, not on the path. The school provided the appropriate level of supervision by assigning a school resource officer to patrol the path.

Nothing about the relationship between Alan and Dave suggested that this incident could have been foreseen. There was no known animosity between the two students — and in fact, they were good friends. The school acted appropriately and in a timely manner when Alan reported to the nurse and the nurse immediately called the rescue squad. In addition, Dave was suspended from school for 3 days in accordance with the student code of conduct.


The Education Expert:

As an expert in education administration, supervision, and safety, I provide an understanding of how schools work and should operate. Based on my education, training, and professional experience, I can render an opinion as to whether a school met the professional standard of care in a certain situation. Regardless of whether I am engaged by an attorney for the plaintiff or the defendant, I provide an unbiased assessment of whether a school acted appropriately and within the professional standard of care. If you are working on a case involving injury to a child in a school or child care facility feel free to contact me at 609.397.8989 or at edragan@edmgt.com to discuss the issues of the matter and to determine if my expertise would help bring the case to resolution.