July 21, 2017

School District Liability: Duty of Care Owed to Students, Visitors, Volunteers, Trespassers and Local Agencies

Whenever children are involved in events on school premises, there is always the possibility of school district liability for incidents that happen on school grounds or at school-sponsored events. This foreseeability gives rise to a duty to take reasonable steps to prevent a child from being harmed. Public school districts may find themselves liable for injury — not only for those suffered by their own students, but also for those incurred by children who are invited onto school grounds, who attend separate programs on school grounds, and even those who are considered trespassers.

School-sponsored events, such as an after-school club, a school dance, or a daycare program run by the school board, are clearly extensions of the school. With these types of programs, the school’s safety and supervisory policies apply. If a person is hurt or is sexually assaulted during a school-sponsored or operated event, it is generally clear that school district liability will attach if there is a finding of negligence.

A school district’s liability for injuries to children on its grounds is far less clear, however, when an outside organization is involved or when an injured party was not authorized to be on campus. Schools sometimes rent or give space to organizations like the Boy Scouts, a community basketball organization, or a private dance school to provide services to the general public, students at the school, or both. Very often, outside organizations cooperate with the school to provide before- and after-school services for the school’s own students, but these programs are not directly operated by the school. Typically, schools have policies that spell out an approval process for the use of their space. However, based on some of the cases for which we have been engaged, these policies do not always go far enough — thus leaving school districts open to liability if a child involved in an activity that is run by an outside organization is injured on school grounds.

 

School District Liability When an Outside Agency or Organization is Involved

For example, one of our cases involved a school that allowed a community athletic association to use its gym. The board of education approved the application and even noted that the organization had liability insurance. One of the volunteers with the athletic association led a participant, who was also a student at the school, to the restroom — where the volunteer sexually assaulted the student. When we reviewed the facts to render an opinion as to whether this school acted within the professional standard of care, it became evident that the athletic association never trained its volunteers in the prevention, detection, and reporting of suspected child abuse. It did not have a plan for supervising its volunteers, nor did it check their backgrounds before allowing them to have contact with the children in their program.

One of the questions that arose in this case was: Did the school have a responsibility to ensure that the other organization had policies in place to reasonably protect the school’s own students from harm?

School district liability and duty of the school to the plaintiff depends upon the relationship between the plaintiff and the school, the relationship between the plaintiff and the other organization, and the relationship between the school and the other organization. Often, these relationships are complicated, and it is necessary to determine which agency had responsibility for the plaintiff’s safety at the time of the incident.

Consider the following examples:

  • A school allows one of its teachers to use the music room after school to provide private lessons. The teacher systematically lures a student into an inappropriate relationship and is accused of sexually abusing him in the school.
  • A person on the school’s grounds when not authorized suffers an injury. Even though this person would be considered a trespasser, the school may be liable under certain circumstances.
  • The parent of an athlete from an opposing wrestling team falls from the bleachers in the high school gym. Which school — if either — had responsibility for his safety?

In any of these scenarios, the school may become a defendant in a lawsuit and argue that it had no responsibility for the safety of the plaintiff.

One of our cases involved an allegation that two students sexually abused a high school girl under the bleachers during a football game. All three students were at the football field to watch the game and were allowed to be there. The plaintiff student had an implied invitation to enter the premises (the football field), and she entered for the purpose of which the invitation was extended (to watch the game). In a situation like this — all parties at a school-sponsored event were authorized to be there — the plaintiff’s attorney would need to show that the school had a duty to the student to take affirmative action to protect her from an unreasonable risk of harm.

While the school is not a guarantor of the student’s safety, it must take an affirmative action in anticipation of foreseeable injury in order to minimize school district liability. The plaintiff must show that the school knew, or should have known, that the dark area under the bleachers amounted to a defective condition, that the risk to the student could be foreseen, and that because of the school’s negligence in not correcting this condition (not illuminating the area), a student could be assaulted in that location. The defendant’s attorney, on the other hand, must show that this area of the bleachers did not constitute a defective condition, that the information known by the school would not give rise to the foreseeability of the plaintiff being sexually assaulted in that location, and that intervening variables served as proximate cause of her injury. An education administration and supervision expert witness would determine whether the school maintained its property in a reasonably safe condition and whether it reasonably supervised its property during the game.

 

Questions That Help to Determine School District Liability and Duty

When attorneys engage our firm’s services to render an opinion as to whether the school bore responsibility in specific circumstances, we review the duty owed to the plaintiff and whether the school acted reasonably, appropriately, and within the professional standard of care. Often, this analysis begins with a determination of whether the plaintiff was authorized to be on the premises (for instance, a student attending class); was invited to be on the premises (for instance, a member of a visiting football team playing a game against the home team); was a licensee by virtue of an agreement with another entity (for instance, an enrollee in a dance school); or whether the person was trespassing. With each of these classifications, a different approach is applied to the analysis of which entity was responsible for protecting the plaintiff from harm and what that responsibility involved.

When developing an opinion in such cases, our expert witness will apply his education, training, and professional experience to answer several questions: Who was the responsible agency? What policies did the agency have in place to protect individuals from harm? Did the agency apply its policies? What training was provided to the staff that was responsible for supervising children, and was the training reasonable? Did the agency meet other required standards, such as those required by licensing agencies? Did the agency vet and supervise individuals who were responsible for the safety of children?
In examining these questions, it can be determined whether the school had a duty to the plaintiff and whether that duty was breached resulting in school district liability.

Post-Election Hostile School Environment: Protecting Students from Bullying and Harassment

post election school climate

Schools, including K-12 schools, colleges, and universities, have a responsibility to protect their students from harm. Harm includes the inability to benefit fully from education as a result of being in a hostile school environment. The politically motivated rhetoric and actions seen in schools during and after the presidential campaign can create a hostile school environment for which schools can be held responsible.

Many of the attorneys who seek Education Management Consulting, LLC’s expert witness services are involved in litigation over the actions of students toward classmates. In these cases, attorneys want to know whether the school administration responded appropriately and reasonably under the circumstances. Each state has a law that requires schools’ governing bodies to develop and implement policies ensuring that students’ educational environment is free from hostility and is conducive to learning. When campaign rhetoric and the election results spark hateful harassment, intimidation, or bullying, resulting in a hostile school environment, schools must follow state law and respond according to the policies put forth by boards of education, colleges, or universities.

When a group of eighth-grade students intimidate a Latino student by saying, “You have to go back to Mexico now,” and, “You won’t be able to come back to school because there will be a wall to keep you out of our country,” the school needs to address this behavior. The student in this scenario refused to go to school after this occurred on three separate occasions. It can be argued that if the school knew or should have known about the harassment and failed to intervene to end the behavior, resulting in a hostile school environment, there may be an argument that the school breached the professional standard of care and may be liable for damages.

According to a survey by the Southern Poverty Law Center, there were almost 900 incidents of “hateful harassment” nationwide in the 10 days following the presidential election. Schools were the most common venue for these incidents, a result the center called “not surprising, given how prevalent bullying is in our nation’s schools.” The findings correlate with those of a previous study conducted by the center, which reported that the campaign’s scorching words had a “profoundly negative impact” on students. In the earlier study, more than half of teachers said they had seen an increase in harassment, intimidation, and bullying of students whose race, religion, or nationality was the target of political rhetoric resulting in a hostile school environment for all students.

This kind of behavior, when it occurs in schools, colleges, and universities, constitutes harassment (and, under certain policies, intimidation and bullying). Yet 4 out of 10 teachers who responded to the Southern Poverty Law Center’s post-election survey didn’t think their school had a real plan of action for dealing with bias and hate incidents. Some teachers interviewed by CNN said their schools could benefit from better resources and training for teachers, administrators, and staff.

No federal law directly addresses bullying in schools, however bullying in certain instances can overlap with discriminatory harassment based on protected classes. When intimidating, harassing and bullying behavior occurs, there may be a breach of federal civil rights or antidiscrimination laws or state laws against discrimination. No matter what label is used (e.g., harassment, intimidation or bullying), a school that fails to respond appropriately to harassment of students based on race, color, national origin, sex, age, disability, or religion may be violating one or more civil rights laws enforced by the Department of Education and the Department of Justice.

Determining the Professional Standard of Care in Cases Involving Harassment, Intimidation and Bullying

When Education Management Consulting, LLC reviews a case involving a hostile school environment and student harassment, our staff, after determining the issues surrounding a complaint, identifies the standard of professional care. The standard is identified in federal and state statutes, regulations, and advisories to administrators, as well as the policies of the board of education. Next, we review all testimony, reports, and other available information to identify the incident(s) that may have occurred, to whom they were reported, how the school responded, and in the opinion of our education expert witness, whether the school acted appropriately and reasonably and within the professional standard of care under the circumstance. The school may not have been informed of the harassing behavior, and in that case, would not have an obligation to supervise students any differently. If the administration, however, has knowledge of the harassing behavior, the school, through its administration and/or other employees, is responsible for supervising students differently to end the harmful behavior.

A plaintiff’s attorney will need to show that the school had policies to address harassment, that the administration had knowledge or should have had knowledge that harassment occurred, and that ignoring that information caused the harassment to continue or worsen. Additionally, the plaintiff’s attorney will need to show that the harassment was responsible for the creation of a hostile school environment to the extent that the student failed to benefit fully from his or her education.

A defendant’s attorney will need to show that the school had policies to address harassment, that staff was adequately informed and trained regarding the policies, that there was no knowledge of the alleged harassment nor should the school have known of it, and that the plaintiff did not experience a hostile learning environment and continued to benefit from their education.

School Duty Regarding Harassment, Intimidation, Bullying and School Climate

Anyone can report harassing conduct to a school official. When a school receives a complaint, it must take certain steps to investigate and resolve the situation while implementing school policies and procedures. These include:

  • Taking immediate and appropriate action to investigate or otherwise determine what happened
  • Ensuring that an inquiry is prompt, thorough, and impartial
  • Interviewing the targeted students, offending students, and witnesses, and maintaining documentation of the investigation
  • Communicating with the targeted students regarding the steps taken to end harassment
  • Checking with the targeted students to ensure that the harassment has ceased
  • Reporting any criminal conduct to the authorities
  • Implementing the school’s code of conduct and discipline for the offenders

When an investigation reveals that harassment has occurred, a school should take steps reasonably calculated to end the harassment, eliminate any hostile school environment, prevent harassment from recurring, and prevent retaliation against the targeted student(s) or complainant(s). In addition, schools should be proactive and ensure that students, parents, staff, and the community are trained and receive information on the prevention of harassment, intimidation and bullying motivated by political rhetoric and based on race, national origin, color, sex, age, disability, and religion.

Successfully Resolving Harassment Complaints to Avoid a Hostile School Environment

Appropriate responses will depend on the facts of each case. Following a complaint or observation of inappropriate harassing or intimidating behavior, school officials must conduct an “environmental scan” to determine what occurred, who was involved in what occurred, when and where it occurred, and what could have been done differently to avoid the behavior. Once an investigation is completed, the school should continue to monitor the situation, respond to harassment, and take reasonable steps when crafting remedies in order to prevent a hostile school environment. The remedies should include responses intended to minimize burdens on students who were targets of the harassment. Possible responses include:

  • Develop, revise, and publicize the school’s policy prohibiting harassment and discrimination; Grievance procedures for students to file harassment complaints; Contact information for the Title IX and Title VI coordinators
  • Implement training for staff and administration on identifying and addressing harassment
  • Implement training for students on identifying and reporting harassment
  • Provide monitors or additional adult supervision in areas where harassment occurs
  • Determine consequences and services, such as counseling, for harassers, including whether or not discipline is appropriate
  • Limit interactions between harassers and their targets
  • Provide the harassed student an additional opportunity to obtain an educational benefit that was denied (e.g., retaking a test or class)
  • Provide services to a student who was denied a benefit (e.g., academic support services, counseling)

Schools Should Be Diligent, Watchful, and Responsive to Avoid a Hostile School Environment

What motivates students or gives them the impression that they can inappropriately express their bias, anger, or feelings about a classmate can come from various sources, including what is heard through the media, what is heard in the home, and political attitudes and expressions from candidates. Freedom of expression is cherished, but where it enters the light of harassing, intimidating, or bullying behavior that insults or demeans any student or group of students or severely or pervasively causes physical or emotional harm to the student, the school has a responsibility to intervene to end the behavior. If one student tells another student of Middle Eastern national origin, “Get out of this country. You are going to be kicked out. We don’t want you here,” this likely rises to the level of prohibited harassment, intimidation, or bullying. When a school administrator, teacher, or staff member observes such behavior or receives a report of such behavior, the school must immediately apply its policy, conduct an investigation, effectively discipline the offending student(s) according to the student code of conduct, provide support services to the victim(s), and implement other programs and services to inform students of school policy and the consequences of violating it. In the wake of the election, every school should assess the climate within its own walls and develop approaches that provide learning experiences for the students and not a forum for hate.

If a school district or board of education has an appropriate policy; has effectively communicated the policy to its staff and students; provided additional staff and student training programs that cover divergent political views, tolerance, and acceptance; and, acts immediately upon a report of harassment, intimidation, and bullying related to the fallout from the election, the school will have a better chance of defending itself after an incident occurs. On the other hand, if a student brings a lawsuit against the school and can demonstrate that he or she was intimidated because of national origin and that the school was lax in the implementation of its policy, the plaintiff’s attorney will likely have a better chance to prevail.

It is likely that the post-election hostile school environment and climate will continue to embolden some students to harass and intimidate classmates based on their ethnicity, gender identity, sexual orientation, religion, or national origin. No doubt, many schools will be more active in responding to incidents. Before such behavior enters the realm of litigation, schools may be able to respond in a way that not only will protect students from the harm of a hostile school environment, but educates students about acceptance, tolerance, and community.

Student Safety: Screening and Background Checks for School Volunteers

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

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

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

 

State Requirements for Volunteer Screenings and Background Checks

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

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

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

 

Student Safety in Specialized Programs and Placements

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

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

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

 

Student Safety and Standard of Professional Care

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

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

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

Title IX and Sexual Violence at Colleges and Universities

sexual violence at universitiesTitle IX of the Education Amendments of 1972 is a federal civil rights law that prohibits discrimination on the basis of sex in any education program, including in colleges and universities, if those programs or activities associated with the institution receive federal funding. Under Title IX, sex discrimination includes sexual harassment, sexual battery, sexual assault, rape and other sexual violence at school, college or university campuses. Any behavior that disrupts a student’s access to an educational opportunity or benefit constitutes a violation of Title IX. Recent media coverage has brought to light the controversy over the six-month sentence for a former Stanford University student for the rape of a student on campus. There has been outrage over the sentence, and that outrage might be justified, given schools’ responsibilities in similar cases.

The Washington Post reported on June 7, 2016, that nearly 100 colleges and universities had at least 10 reports of sexual violence and rape on their main campuses in 2014, according to federal campus safety data. Brown University and the University of Connecticut tied for the highest annual total — 43 each. In our experience as education administration and supervision and Title IX expert witnesses, many, if not most, sexual offenses against students go unreported to school officials because victims and others who might know of such violations don’t know that their school has a duty to implement Title IX. Colleges and universities are required to develop, publish, and distribute policies against sex discrimination that identify and designate a trained Title IX coordinator, respond promptly to harassment and sexual violence that create a hostile environment, prevent its recurrence and address its effects, provide immediate help for the victim, and conduct an impartial investigation to determine what occurred and take appropriate action. A hostile environment exists when a situation of a discriminatory or sexual nature creates an adverse educational setting, there exists an intimidating or offensive environment that causes a person to; be fearful or there is a setting that denies, limits or interferes with a student’s ability to participate in or benefit from a class, program or activity.

Laws governing schools’ responsibility and how they are to respond to complaints of sexual harassment and abuse are the “hard” elements that are reviewed when answering the question of whether the school acted reasonably within the standard of professional care in a particular circumstance. Schools might have all the appropriate policies in place, but if the culture of the institution doesn’t foster implementation of the standards, then it is not unreasonable to expect that students may be victimized. Victimization occurs first when they are abused, but a second time by the school when the administration fails to provide victim assistance, allows the alleged perpetrator and victim to be together on the same campus, and doesn’t conduct an investigation in a timely manner.

A Brown University spokeswoman told the Post that the university “works very hard to cultivate a culture of forthrightness so this traditionally underreported crime can be addressed and our students receive appropriate services and support.” The concern here is that sexual violence and crimes against students were “traditionally” underreported. One must consider the “tradition” of our educational institutions that encouraged underreporting of such crime. Another spokesman for the university suggested that the relatively high number of incidents at Brown, compared with other universities, is indicative of a culture of openness: “The fact that 43 incidents were reported indicates that we are building trust among our campus community members in how the university responds to reported incidents of sexual and gender-based violence.”

 

Title IX Policies Are Only Effective if Implemented

Many of the cases for which Education Management Consulting, LLC, is engaged to provide consultation and expert witness services require us to review the issues and render an opinion as to whether a high school, college, or university acted reasonably and within the standard of professional care. This is often the heart of the matter when a plaintiff claims that he or she suffered as a result of the school not implementing its own Title IX policies.

In one case, for example, a female college student was sexually assaulted by a basketball player in her dorm room and alleged that for six months following the assault, she was harassed and taunted by students whom the perpetrator told about the violation. Her lawsuit claimed that she was not informed of the college’s Title IX policy, her right to be protected, and how to report the behavior against her. A representative of the school knew of the assault, yet there was no report of it to any school official or the police. Because there was no report the school, authorities were not aware and had no reason to investigate. The school argued that because it had no actual knowledge of the violation, it had no responsibility for the continued harassment of the student.

Our review indicated that the school had very good policies, but those policies were not effectively transmitted to its students and staff. Very few students knew that there was a person on campus designated to enforce Title IX and did not know how to report violations on campus. When students do not understand their right to be protected from sex-based harassment, abuse, and  sexual violence, when school authorities fail to take seriously their duty to protect students from the harms of such behavior, and when violators are allowed to continue such behavior, our schools are letting down the very people they are meant to enrich and educate.

Colleges and universities, as well as elementary, middle, and high schools, exist — or should exist — for their students. Creating a climate in which students are able to learn and reach their academic, social, and emotional potential is — or should be — the primary goal of the school. Students can’t learn in a climate that allows or encourages offensive student behavior. Schools have a duty to be proactive in ensuring that they are free of sex discrimination, including harassment and a hostile school environment related to sexual violence.

 

Title IX Compliance Checklist for Colleges, Universities and Public Schools

Colleges and universities can argue that they are in compliance with Title IX if they can demonstrate that they:

  • Employ a Title IX coordinator who is properly trained to investigate and resolve cases and is involved in all incidents of sexual violence, harassment, and discrimination;
  • Do not act with deliberate indifference to a report of an incident and take immediate action to educate the student body and staff to prevent similar incidents from repeating;
  • Take immediate action to prevent the development of a hostile environment and eliminate the potential for retaliation and/or harassment by suspending or removing the accused while an investigation is pending;
  • Fully investigate under a Title IX coordinator and take appropriate action, even if there is a campus or community police investigation pending or taking place at the same time;
  • Do not use mediation as a tool to resolve cases of sexual harassment or sexual violence and avoid placing the burden on the victim;
  • Use the preponderance-of-evidence standard and stick to timelines for hearings and administrative action;
  • Are proactive in training faculty, staff, and students regarding sexual violence, sexual harassment and discrimination, in order to create a positive learning environment regardless of whether there is a complaint;
  • Offer and provide counseling services, regardless of whether the alleged victim wishes to file or formalize a complaint: and,
  • Widely publicize the school’s policy, provide adequate training to student body and staff, and ensure that policy is consistently implemented.

Schools are required to take immediate steps to address incidents of sexual violence and/or harassment and prevent it from affecting students further. Schools may not discourage victims who do report incidents from continuing their education. Student victims have the right to remain at school and participate in every educational opportunity available to them. It is the school’s responsibility to adequately respond to incidents and implement policies and procedures that protect student victims from further harm.

 

Off-campus Sexual Violence Incidents and Hostile School Environment Under Title IX

A hostile school environment can develop whether an incident took place on or off campus. Sexual harassment and sexual violence and abuse between students on a school-sponsored trip or at a school-sponsored event, or even outside of school between students are cause for the school to implement appropriate policies. For example, an act of sexual harassment might occur between students of the same high school at a weekend party. Initially, it may be considered that because this happened off campus, school policy and Title IX do not apply. However, if one student rapes another, and if students are aware of it and talk about it in school, this can create a hostile environment for the victim.

When a school receives such a report and fails to take action to end bullying, intimidation, or other negative behaviors against the victim, the school may be in violation of Title IX. In one case for which we were engaged, the school had knowledge that two male students sexually assaulted a female student off campus. Weeks passed and the school did not take any action to end the behavior of other students who harassed and intimidated this girl in the aftermath of the incident. It was my opinion, after reviewing the facts, that the student endured a hostile school environment created by the bullying of her classmates.

Schools must have an established procedure for handling complaints of sexual violence and harassment. When a complaint is received, the school must promptly investigate regardless of whether the complaint was reported to the police. Though a police investigation may very briefly delay the school’s investigation, schools are not allowed to wait for the conclusion of a police investigation and criminal proceedings and must conclude their own investigations in a timely manner. 2011 Office for Civil Rights Title IX guidance indicates that 60 days is an appropriate length of time to complete an investigation.

Courts have established that school districts are liable under Title IX if they fail to take effective action. Lack of an appropriate investigation, a Title IX coordinator’s lack of involvement, and lack of remedial action constitute deliberate indifference. Schools are required to use a “preponderance-of-the-evidence” standard to reach their conclusions, meaning discipline should result if it is more likely than not that discrimination, harassment, and/or violence occurred.

The federal government sets civil rights standards. If schools don’t take human rights, civil rights, and personal rights seriously and realize that they are the institutions charged with guarding these rights, then we will continue to be engaged by attorneys representing plaintiffs who claim they were not protected by their schools and by defendants who argue they were never told of any problems that make them accountable for the harassment of a student.

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

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

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

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

 

Duty Under In Loco Parentis

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

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

 

Professional Standard of Care

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

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

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

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

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

 

Training and Oversight are Essential to Avoid Residential Program Liability

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

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

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

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

 

Summary

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

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

Student Sports Injury and School Liability

Sports Injury Liability

Nationwide, 7.6 million students participate in interscholastic athletics, according to U.S. News and World Report. Keeping them safe is critically important to avoid school liability and sports injury lawsuits. And when sports injury occurs, schools may be found responsible if they failed to take reasonable precautions and supervision of students in order to prevent sports injury. Parents send their children to school with the implicit expectation that schools will do whatever is necessary to keep them safe whether in the classroom or on the football field.

Although there is inherent risk in athletic competition, parents rightly expect that coaches will take reasonable and proactive measures to protect student athletes from harm. In the vast majority of cases, coaches do exercise prudent judgment and care. Sometimes, though, coaches are careless or deliberately indifferent, thereby jeopardizing the health and safety of the athletes under their care. Many states have very strict immunity laws protecting schools and coaches for acts of negligence. However, a careful analysis of the actions and inactions taken by coaches that caused injury to an athlete can be introduced by a plaintiff in order to overcome immunity claims by schools.  

 

Policies and Training of Coaching Staff are Key to Preventing Athletic Injury

As expert witnesses, we have encountered many cases in which students suffered physical or emotional sports injuries during their involvement in school athletics. Examples include instances of bullying, hazing, and sexual harassment on buses to and from interscholastic events while coaches were not paying attention. Other examples involve inappropriate behavior, physical assaults, fights, and initiation of younger team players while the coach was in his office with the door closed. Often, such behavior is excused as “boys being boys” or “kids being kids.”

A variety of circumstances on or off the field could potentially lead to personal injury of students. Unstructured practice time, unsafe premises, faulty athletic equipment, failure to follow established school policies, lack of policies, inappropriate and abusive behavior of coaches, and tolerance of such behavior are just a few examples.  Any of these circumstances may place students in situations where they can suffer sports injury, leaving schools liable for those injuries.

To avoid such situations, a school would be wise to begin with a two-step approach. The first is to develop policies that explicitly prohibit hazing and require that coaches, teachers, and anyone else in a supervisory capacity exercise proper care of students. Proper care involves appropriately supervising athletes, ensuring safe facilities, following state guidelines for interscholastic athletics, and directing students to appropriate medical care, if needed. The second step is to ensure that those responsible for carrying out those policies understand them and follow through on procedures for their implementation. It is prudent, for instance, for the athletic director to hold a preseason meeting with coaches before the start of fall, winter, and spring sports or any sports camps to advise coaches of their responsibilities. Parents and students should be invited to those meetings so that they also know the standard of care that coaches are expected to uphold and, if necessary, share their concerns with the athletic director.

 

School Liability for Unsafe School Premises and Defective Athletic Equipment

Because schools have a duty to provide safe facilities and grounds, they should periodically inspect locations where student activities are taking place. Failure to inspect school premises may be grounds for school liability. In one case in which our firm was engaged for expert witness services, a soccer player incurred serious injury during practice on the school athletic field. On several occasions, the coach and others reported to school officials that there were holes or deep depressions on the field, making the field uneven and potentially dangerous. The school did not fix the reported problem and, during practice, a student stepped into a deep depression, permanently injuring her ankle. In such situations, the school are negligent and often have actual knowledge of the dangerous conditions and deliberately ignores the notice, resulting in student sports injury.

In another case, during a softball game the center fielder’s face became stuck to the wooden outfield fence when she attempted to field a ball. As her face brushed up against the fence, a large sliver of wood entered her check, pinning her to the fence until someone came to dislodge her. Such personal injuries may be avoidable if playing facilities are regularly inspected. Upon inspection, unsafe conditions on athletic fields, gymnasiums, and related facilities must be promptly alleviated. Records of such inspections should be kept to ensure that inspections actually occur and to protect the district from a claim of an unsafe condition and school liability.

In certain situations, a school may not be responsible for the condition of its premises and the safety of others. In a 1984 case, (Begin v. Georgia Championship Wrestling, Inc., 172 Ga. App. 293, 322 S.E. 2d 737) a spectator at a wrestling exhibition was injured when her foot got stuck between two seams of plastic covering the gymnasium floor. The three-foot wide plastic strips had been placed around the wrestling ring by the school where the event was being held. The plaintiff sued the promoter of the event and not the school where it was held. The court clarified that, although the school was the sponsor of the event and employees placed the covering on the floor, the plaintiff was an invitee of Georgia Championship Wrestling, Inc., the promoter. The promoter was the occupier of the premises and, as such, is charged with the duty of keeping the premises safe for invitees even though the activity was held in the school gymnasium. An occupier of premises is under duty to inspect the premises to discover possible dangerous conditions  of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. (Prosser, Law of Torts (4th ed.) 393, 61)  

 

Coaches Should Exercise Reasonable Standard of Care to Prevent Student Sports Injury

To protect athletes, coaches should be proactive and consider everything they can do to prevent foreseeable athletic injuries. Participants in interscholastic athletics are students first and athletes second. As such, coaches are in the position of providing, at a minimum, “parental control” and must exercise judgment that a “reasonably prudent adult” would take to ensure the safety of students. That means for example, creating practice and game conditions that are safe, such as pitting athletes of equal (rather than unequal) ability against each other and modeling sportsmanship and ethical behavior.

Sometimes, coaches may be inclined to push athletes into a game situation for the sake of a win. Instead, coaches should have the attitude that the safety of student athletes is more important than wins. They should follow guidelines prescribed by their State Athletic Association regarding concussions or drink breaks, for instance. All reports of injuries should be taken seriously and medical attention provided, even if only precautionary. Many high schools today have athletic trainers available at practices, but some have trainers only at games or not at all.

The same attitude of injury prevention applies to physical education classes. Physical education teachers should routinely monitor and ensure the safety of physical education facilities and equipment. They should take all claims of injuries seriously and have students examined by the school nurse if they claim to be hurt. In our experience, many tragic injuries — and even death — have resulted from dismissing a student’s initial complaint as inconsequential.

Coaches should supervise athletes at all times — while they are in the locker room before and after practice, waiting to be picked up after practice, and any time they are on school grounds. Students are far less likely to do something inappropriate if they are properly supervised and if they know that certain behaviors are not tolerated. When coaches fail to supervise and a student is injured, the school may be held liable.

 

Schools Should Continually Monitor Athletics to Minimize Sports Injury

Finally, school administrators should ensure that coaches and physical education teachers conscientiously carry out their responsibilities. When everyone does their part, the school may avoid liability claims and costly litigation. But absence of claims is not the goal; ensuring the health and safety of student athletes is the goal. If safe conditions are in place, if coaches and physical education teachers supervise students appropriately, and if they respond to injuries quickly, then the likelihood of student athletes becoming injured will be greatly decreased — and students, parents, and the school will all benefit.

Student Injury and Standard of Professional Care Analysis in Schools

student injuryRisk of personal injury to children is reduced when activities, facilities, equipment, personnel, and supervision are brought into compliance with “standards.” There are several sources of standards. Some standards are mandated by law through statutes. Additional standards are set forth by oversight authorities, such as the American Academy of Pediatrics, the American Camping Association, the National Federation of High School Athletic Associations, or the U.S. Consumer Product Safety Commission, to name a few. Other standards involve the customary professional practice of those conducting such activities. Ignorance of such standards is no excuse for failing to comply and schools and agencies with children have a duty to be proactive about implementing standards in order to prevent student injury.

As an education and child supervision expert, I begin my review and analysis of the issues of a case by identifying standards in the field — those mandated by law, or statutory standards, those set forth by oversight authorities as well as the customary professional practice of the school, summer camp or daycare — and then determine whether they met those standards. If my review and analysis demonstrates that standards were not met, then the next step is to consider whether a breach of one or more standards was a proximate cause of alleged student injury. Determining whether a risk of injury exists is, in part, assessed by ascertaining whether compliance with standards is met. For example, although there may not be standards mandated by law for camps that offer swimming as part of their programs, the American Camping Association, an oversight authority, specifies minimum requirements for a lifeguard. Meeting this standard requires a minimum level of training for the lifeguard and also certification. If the camp employs a lifeguard who does not meet these requirements, there is an inherent risk of student injury since the lifeguard was not trained to receive the certification.

Federal statutes, such as the Individuals with Disabilities Education Act (IDEA), require that schools provide a certain level of programs and services for children with disabilities so that children can benefit from their education. Regulations implemented for IDEA specify that schools must develop an Individualized Education Program (IEP) for a child with a disability and that the IEP be reasonably calculated for the child to benefit from his or her education. This, then, becomes a standard of care for comparing how the school met or failed to meet the needs of a particular child. If a child displays significant behavior issues, then the statute requires the school to conduct a behavior assessment and develop a behavior plan to be followed by school employees. Failure to develop an appropriate and reasonable behavior plan as part of an IEP for a child with behavioral problems and failure to train teachers in its implementation may be considered a breach of the professional standard of care. If a plaintiff became seriously injured in a fight with the student who exhibited behavioral issues, and if the school had notice of the student’s aggressive behavior but failed to address it through the IEP, the school may be held liable for breach of the professional standard of care and student injury.

Schools must develop policies to guide their operations, to provide educational services for students, to develop curriculum and to supervise teachers, all for the end result of providing education in a safe environment. Schools have policies that reflect their staff’s responsibility to report child abuse, how to implement the student code of conduct and how to curb hazing in athletics. For example, every state requires local school boards to develop and implement a policy to address school bullying. This becomes another source of the standard of professional care. If a student was identified as one who had bullied others and later seriously injures a student in a fight, one of the questions to be asked is: Did the school meet the professional standard of care required by state statute and by its own policy? Is there a nexus between any breach of care and the student injury? If the school did not have a policy to address bullying or if the policy in place failed to meet key components of state statute such as staff training requirements, those breaches may be a proximate cause of student injury.

 

Student Injury Lawsuits and Professional Standards of Care

Professional standards set the backdrop for case review and analysis. At the top of the list are regulatory requirements in the form of statute, regulation, and licensing standards. In cases involving the death or serious student injury, these are first standards I identify. For example, if the state of Delaware requires that the ratio of certified, trained adults to three-year-olds in a childcare program is one adult for every five children, then that becomes one of the standards. I determine whether the daycare acted within the professional standard of care and whether its actions were appropriate and reasonable under the specific circumstances. If, as an example, a child climbed on top of a table in a classroom, stood up, and was pushed off by another student, I determine how many children were under the care and supervision of the teacher at that time. If the teacher was responsible for 15 students when the injury occurred but the law says there were only to be five students, then one of my opinions might be that the breach of this professional standard of care was a proximate cause of student injury.

Next in line are the policies of the school, summer camp, daycare or other agency responsible for the care of children. In most cases, these policies mirror federal and state statutes and regulations, but sometimes they go beyond them. When the school develops its policies, those policies become part of the professional standard of care as expressed by that school, and the school can be held to compliance with them. In addition, other standards may apply, information contained in parent and staff handbooks. The school must comply with the standards in these documents if it is to demonstrate that it met the professional standard of care.

In some situations, beyond school policy, there may be unpublished standards — “unwritten rules” — that have been developed over time by the school administration. This component becomes another layer of standards and often is difficult to address because it is considered custom and practice within a single school or agency. It becomes difficult to argue against or to defend because in some cases these customs may run counter to professional standards of care. For example, a principal has developed a policy that, when a student misbehaves in the cafeteria, she brings that student to her office to sit out the lunch time. During the time the student is in the principal’s office the principal talks with the student about his behavior. The principal has done this for three years and there has never been a question. This became an unwritten rule, an unpublished standard and practice beyond school policy. However, official policy requires the principal to complete a referral form for the school counselor and the counselor is expected to meet with the student. On one occasion, after several disciplinary issues occurring in the cafeteria, and meeting with the principal in her office, this student attacked a classmate at the end of the school day. A thorough review of the school policies will include the standard developed by the principal which, in this case, was contradictory to official school policy. Although counseling this student in the principal’s office might be shown to have been somewhat reasonable, counseling with the school counselor as per written school policy might have avoided the aggressive behavior and prevented student injury.

 

Professional Standard and School Liability

The appropriate and acceptable standard of care is demonstrated when a person, such as the supervisor of a child, acted reasonably and prudently in a specific circumstance. Failing to act reasonably and prudently may be a proximate cause of student injury. Compliance with standards alone does not entitle the school to summary judgment. Some standards are not adequate for specific situations. Customary usage and practice of the industry is relevant for determining whether a standard had been met. However, such usage cannot be determinative of the standard (Marietta v. Cliffs Ridge, 385 Mic. 364, 189 N.W. 2d 208 [1971]). On the other hand, if a school failed to comply with standards, it makes evidence of improper care easier to show. For example, the required student-to-teacher ratio in a preschool program of three-year-olds is one adult to five children. A school did meet that standard but a student was injured when he ran into the corner of a table when the teacher wasn’t paying attention. Just because the school complied with the teacher-to-student ratio does not entitle it to summary judgment. Often this is argued but other relevant circumstances must be assessed such as the attention of the teachers. If the school had one teacher supervising ten students when an injury occurred, this is clearly a breach of the standard and likely will be a contributing factor to the injury of the child.

Failure to follow some standards may not be related to student injury or loss; there must be proximate cause. In some situations, the level of care promulgated by the standard may not be necessary for providing a safe environment; the standard may go beyond a minimum requirement. The reasonable and prudent professional standard is, therefore, added to the pyramid of standards of care. This standard can be assessed only by a person who is qualified through education, training and professional experience to render such an opinion.
Professional standards are the foundation for determining liability when a child is injured or killed while under the care of a school, camp daycare center, or other agency entrusted with child safety. The many layers of standards, whether these standards were followed, whether actions were appropriate under the circumstances, and whether an action or lack of action was a proximate cause of injury or death weave a complex web in any determination of liability.