September 23, 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.

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

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

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

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

 

Duty Under In Loco Parentis

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

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

 

Professional Standard of Care

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

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

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

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

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

 

Training and Oversight are Essential to Avoid Residential Program Liability

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

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

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

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

 

Summary

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

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

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.

Assessment of Liability: Child Abuse and Injury in Residential Care

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

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

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

Reasonable and prudent parent standard

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

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

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

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

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

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

Standard of care for residential and boarding schools

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

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

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

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

Expert role in assessing standards of care

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

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

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

Real case examples

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

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

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

Violation of Right to Bodily Security and Student Injury at School Resulting from Seclusion and Restraint

injury from restraints at school

Liability for Student Injuries at School

The first responsibility of educators and those who supervise children in residential programs, day care centers, before- and after-school programs, and other settings is to make sure that these programs foster learning and care in a safe environment. Asking third graders to move a cart with a heavy TV on top, inadequate staff instruction in safe techniques to quell disruptive students, not carefully checking that the door to the pool closes and locks the way it is supposed to, excessive discipline, playground aides talking among themselves but failing to pay attention to the children, not providing a sufficient number of nighttime supervisors in a dormitory, and a school police officer not trained on how to interact with children with behavioral disorders — any of these circumstances can lead to student injury at school or death of a child and high litigation costs. The overriding professional standard of care is to protect children’s health, safety, and well-being. Under this umbrella fall the development and implementation of policies, adequate staff training, and a level of supervision reasonably calculated to keep children safe.

Children in public and private schools and residential programs can be subjected to harm by the very adults charged with protecting them. Preventing this from occurring requires getting to know a student, his or her emotional status, and what circumstances might trigger certain behaviors. For example, a child who has an Individualized Education Program (IEP) is recognized as someone who needs special accommodations. The IEP must be adequately developed and then implemented by all staff who come in contact with the student, including teachers and classroom assistants, bus drivers, cafeteria staff, school police, and custodians. When staff is neither informed about a student with special needs nor trained in techniques for de-escalating combative behavior, the stage is set for disaster. And if results are student injury at school, the school can be held liable.

Understanding the child’s abilities and limitations, knowing how to interact positively with the child, establishing clear policies, consistently following the rules, and adequately training staff will go a long way toward avoiding interactions that end up resulting in student injury at school.

Student Injury at School and Failure to Meet Standards of Care

Let’s look at some examples from my own work as an expert witness on standards of care in schools and residential facilities. In California, a child who had autism and mild mental retardation was forcibly restrained by as many as four people who held her at her classroom desk while forcing her to color a sheet of paper for one to two hours. She was also placed in a locked seclusion room for as many as five hours a day, during which she experienced severe duress and wet herself. She was told she could not change her clothes until she finished her time out and then finished the work she had refused. Even when time out was over, the child was kept in the seclusion room because it was designated as her classroom by the school. This case was litigated before a hearing officer and a court, with both holding that the school had violated her rights.

In this case, the school had a duty to develop an IEP that was reasonably calculated to help this student benefit from her education and to deal with any behavior or disability issues that could prevent her from learning. If she was being forced to color and was locked in seclusion for hours, she was not benefiting from her education. The school breached the professional standard of care that requires it to revise the IEP if it is not working. Any time a student must be overly disciplined, the IEP and any behavior plan are not working. In this example, the school failed to assess the child’s placement in an adequate way; failed to conduct a behavioral assessment to determine why the student was behaving the way she did; failed to develop a plan to de-escalate her behavior; and failed to train staff how to intervene appropriately to protect her from harm. In my opinion, the combination of these failures led to the physical restraint of the student, her placement in a seclusion room, and psychological, emotional, and educational harm.

In another example, a school resource officer in New Jersey shot a child numerous times when the student allegedly acted aggressively toward him. No one had told the officer that the student, who was in a special education program at a public school, had a disability that manifested as aggressive tendencies, nor did the school train the officer in how to de-escalate aggressive behavior of this student or others with similar behaviors. The student was carrying a knife. The officer ordered him to put it down several times, and when he did not, the officer fired his semi-automatic pistol at the boy nine times. The police department that hired the officer and placed him in the school in collaboration with the board of education investigated. Ultimately, it determined that the officer had acted properly and according to police protocol under the circumstance.

This example brings into focus the role of police and school resource officers. Many schools either directly employ police officers or have agreements with police departments to allow officers in the school to work alongside staff. These arrangements are generally positive. Officers on campus are able to observe students in the context of the school and get to know them, as well as interact with them in the community after school, which can strengthen community/police relations.

In schools, the key to effective police work is training. Officers who interact with students must understand the school behavior code, information about specific children who need special supervision, and the developmental stages of children. Many seventh and eighth grade children, for instance, are developing social maturity — and they don’t always think before acting. High school students, on the other hand, can be quite mature and may have other goals when interacting with one other. More importantly, students with disabilities may need to be communicated with in a different way than non-disabled students and might react unpredictably if they are frustrated or perceive that they are being bullied.

The police officer who emptied his weapon at this student had seen the student around the school but had no idea about his disability. He was never informed that under some circumstances, this student was capable of becoming aggressive — not because of his nature but because of an emotional immaturity that caused him to act before thinking. School staff understood how to de-escalate this student’s behavior when he began to show signs of frustration or anxiety, and they had been successful at protecting him and other students in such circumstances. The professional standard of care requires that all school personnel who are likely to encounter the student’s behavior be trained in how to deal with it by de-escalating the situation. The school resource officer was not trained to deal with the student in this way, however. His only training was from the police department: If a person coming at you with a weapon does not follow a command to drop the weapon, you may protect yourself with deadly force. Police are trained to focus on crime, and when a school does not adequately train a school resource officer to deal with students who have behavioral issues, a child can be harmed.

In another case for which I was the designated education administration and supervision expert witness, a judge ordered a school district to place a teenage student in a residential school that specialized in services for severely emotionally disturbed children. The school disagreed with the order but was obliged to comply. On the student’s second day at this facility, he ignored a staff person’s directive. Interaction between the student and the staff member escalated to the point where the staff person forcibly “placed” the student on the floor and sat on his back to restrain him. When the student struggled violently, the 200-pound male staff member pressed harder with his body to keep the student in place. Eventually, the student stopped struggling. He was dead when the EMTs arrived. The staff member was fired.

This case was complicated because the state, through the administrative law judge, ordered placement at the residential facility. The state was immune to a lawsuit, leaving the public school, the facility, the staff member, and his supervisors as defendants. The public school did not agree with the placement but complied under a legal order. The questions in this matter, then, were whether the residential facility met the professional standard of care and whether it acted appropriately and reasonably under the circumstance to protect the safety, health and well-being of the plaintiff.

My analysis of the facts led me to the opinion that the facility was negligent in its training. The school created a situation that otherwise would not have existed had the staff member been adequately trained and supervised. The staff member was minimally trained but no one assessed his ability to restrain a student in a safe manner. This was the first time the staff member had restrained a student in this manner. According to witnesses, the staff member did not attempt to de-escalate the situation — as is recommended by most accepted training in the use of physical restraint — before applying the deadly restraint. In my opinion, the staff member did not exercise reasonable care when it was quite apparent that disastrous injury could result from his action. His failure to de-escalate the confrontation and, in my opinion, failure to exercise care that even a careless person would use amounted to reckless disregard of the consequences of sitting on a student’s back. It is likely that the trier of fact in such a lawsuit would determine this behavior gross negligence. My expert opinion was that the school’s failure to provide adequate training was a proximate cause of this child’s wrongful death.

Student Rights to Bodily Security

Schools and other programs responsible for children can misuse punishment, and the effects of that misuse can cause years of damage to a child. Any new teacher, camp counselor, or child care worker knows that teaching children appropriate behavior is important for their own safety. What I learned as a teacher and school administrator is that establishing a mutual sense of respect is the first step on that path. Without question, everyone needs to know how to get along with others and to interact in a socially appropriate manner. However, one must be extremely careful when using punishment to change behavior — especially the behavior of an often temperamental or non-communicative child with a disability. Ill-timed, vengeful, and capricious punishment without incentives only creates a negative template for children to follow. Punishment that places kids in isolation only provokes counter aggression. When teachers deal with a student’s frustration or misbehavior by putting him in isolation, it is likely that the student would respond by expressing aggression through screaming, disrobing, soiling himself and, in some cases, hurting himself. Because of their disability, some students are unable to express themselves verbally, so they express their frustration the only way they were taught — through aggression.

When a child is restrained or forcefully taken to a time-out room, slammed into a chair, and yelled at to “sit still,” or encounters a teacher who slaps, pinches, or spanks her, her constitutional right to bodily security has been breached. The right to security of one’s person and body is generally protected when there is no justification for physical contact. This does not prohibit physical contact that is justified by a need to protect others or school property or to maintain order, and when the manner and degree of authorized physical force or restraint is reasonable. While some incidents of student abuse give rise to multiple constitutional, statutory, and common law claims of injury to bodily security, those sources create different standards of student rights and school district liability. Title IX indirectly supports the view that sexual abuse of students is a serious invasion of a constitutional civil right.

Student suicides and sexual abuse of students have brought to light another theory of constitutional right, namely that public schools, as state-created, state-operated institutions with full, though temporary, control and custody of their students, have a “special relationship” with an affirmative constitutional duty to protect students from harm which includes student injury at school. It is easier to prove a violation of this duty than to prove that a school was grossly negligent or deliberately indifferent to student harm. Students injured at school by school employees while in the custody of the school may argue that their public school relationship is more like the situation of a prison, where inmates are substantially required to be there and controlled by the state. However, in public schools, the duty-to-protect argument is open to further clarification and case development and is often the subject of many lawsuits against schools and other programs in charge of caring for children. In two federal cases (Walton v. Alexander [1994] and Pagano v Massapequa Public Schools [1989]), for instance, courts have issued contradictory opinions on the circumstances around which a “special relationship” exists.

Duty to protect is often the subject of cases involving wrongful death and serious student injury at school. The concept of constitutional breach of protecting children and their bodily integrity may be argued in such cases. To mount a strong defense against such a claim, the school or agency must show it had and implemented, at the time of the alleged injury, clear and concise policies, a comprehensive training program, and diligent supervision that assured that through its administration and/or other employees, the school or agency is protecting the health, safety, and well-being of children.