May 28, 2017

Student Safety: Screening and Background Checks for School Volunteers

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

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

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

 

State Requirements for Volunteer Screenings and Background Checks

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

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

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

 

Student Safety in Specialized Programs and Placements

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

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

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

 

Student Safety and Standard of Professional Care

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

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

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

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

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

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

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

 

Duty Under In Loco Parentis

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

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

 

Professional Standard of Care

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

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

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

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

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

 

Training and Oversight are Essential to Avoid Residential Program Liability

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

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

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

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

 

Summary

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

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

Title IX and Sexual Abuse in K – 12 Schools

Hostile School EnviromentAs difficult as it might be to accept and understand, abuse of children is occurring at an alarming rate in our nation’s schools, daycare centers, camps, and other institutions. Even with state laws that require child abuse reporting and institutional policies that address sexual abuse prevention, identification, and reporting, abuse is not going away. More civil lawsuits are filed with each passing year, and schools and other organizations are not always appropriately responding to this epidemic.

At a school or any institution responsible for protecting the safety of children, the existence of a policy isn’t enough. It is evident from my involvement in such cases that when schools have adequate policies that are living documents — supplemented by training and a culture where all reports and rumors are taken seriously —children tend to be better protected. Children are more frequently harmed in a climate where reports of sexual abuse are discouraged, rumors are not taken seriously, and staff training is lacking.

According to a 2014 federal report, U.S. schools are failing to protect students from sexual abuse, and instances of district cover-ups, lack of staff training, and incomplete teacher background checks are not uncommon. The U.S. Government Accountability Office determined that K–12 schools lack a systemic approach to preventing and reporting sexual abuse of students, despite longstanding evidence of widespread sexual abuse at the hands of educators. A previous federal report had estimated that 9.6 percent of students are sexually abused by school personnel.  A school district may be liable for damages under Title IX if it fails to take action to stop known sexual abuse and harassment.

 

Appropriate and Immediate Response Is Critical

Based on my experience as an expert witness in school and institution administration, virtually every school district in the United States and Canada is, at some point, likely to hear rumors or receive a complaint about the sexual abuse of a child by a staff member. The safety of children depends on several elements. One such element is an adequate response by the administration, including prompt and adequate investigation and taking appropriate action to protect children from harm.

The professional standard of care requires that those responsible for the safety of children respond appropriately when there is an observation, report, or rumor of inappropriate sexual behavior between an adult and a child in a school. For example, when a librarian sees a teacher kissing a student in the gym, the librarian’s observation provides clear notice that the teacher is breaching the professional code of conduct and school policy. Any reasonable staff member would also conclude that it is more likely than not that the teacher and student are engaged in an inappropriate sexual relationship. The librarian’s responsibility would be to report the observation immediately to her supervisor, usually the building principal, and to report the behavior to the state agency that investigates allegations of child abuse.

Likewise, any observation, report, or rumor that children in school may be engaged in inappropriate sexual behavior with each other warrants an immediate response to protect children from harm. In some circumstances, student-on-student sexual behavior will be considered typical depending on the age of the children. For example, two 5-year-olds may expose themselves to each other with no intention of sexual abuse. On the other hand, if a vulnerable child with a disability is sexually touched by a nondisabled child of the same age, it might be considered abuse because of the imbalance of power between the two children. This also might be true when a much older child is sexually active with a younger child. Age, in this situation, creates the imbalance of power.

 

Supreme Court cases defining Title IX liability Following Sexual Abuse

In Gebser v. Lago Vista Independent School District, (524 U.S. 274 (1998)), the U.S. Supreme Court established standards for school district liability under Title IX when a sexual relationship occurs between a teacher and a student. The court found that a school district will not be liable unless: (1) an appropriate school official has actual knowledge of discrimination; (2) the school official has authority to take corrective action to address the alleged discrimination: (3) the school official fails to adequately respond; and (4) the inadequate response amounts to deliberate indifference.

In Davis v. Monroe County Board of Education, (526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999)), the Supreme Court established that a school district may be liable for damages under Title IX if it fails to take action to stop known student-on-student harassment. In Davis, the alleged conduct of the perpetrator student was outrageous, and despite repeated complaints of sexual harassment over five months, the student was not disciplined. In fact, the victim was not even allowed to change classes to escape the harassment of her classmate. Moreover, the board of education had not instructed its personnel on how to respond to peer harassment and had not established a policy on the issue.

Actual notice. Since the Davis decision, there has been a pattern of cases granting summary judgment to school districts on the basis of insufficient evidence of actual notice. However, the issue of what constitutes sufficient notice to the school is not yet settled. For example, in Doe v. School Administration District N. 19 (66 F. Supp. 2d 57 (D. Me. 1999)), it was found that the school had sufficient notice when a substitute teacher met with the principal to report that a female teacher “might be” having a sexual relationship with at least one male student. The principal allegedly told the substitute that she could be “sued for slander for saying those things” and declined to investigate. The court believed this verbal notice was sufficient where the alleged sexual misconduct was severe and where the school community was small (the high school’s faculty numbered 15). From the substitute teacher’s report, the administrator had a duty to conduct a sufficient investigation and, likely, to file a report with the appropriate child protective service in the state as well.

Insufficient notice was found in Turner v. McQuarter (79 F. Supp. 2d 911 (N.D. Ill. 1999)) where a female basketball player claimed to have been coerced into a sexual relationship with a female coach. Because the student and coach had the same home address, the plaintiff alleged that the university’s athletic director knew of the relationship. A district court concluded that it was difficult to imagine under what circumstances the identical addresses would have come to the attention of school officials. In this case, the court determined that unless there is sufficient notice or a report that a sexual relationship was taking place and that the coach and student resided at the same address, it would have been unlikely that the school would have found out on its own.

Deliberate indifference. The adequacy of a school or institution’s response once the appropriate officials have actual notice also has been examined. For example, in Kinman v. Omaha Public School District (171 F.3d 607 (8th Cir. 1999)), the Eighth Circuit Court of Appeals found that prompt investigation, corrective action, and ultimate termination was a sufficient response by a school district in response to allegations of a sexual relationship between a teacher and a student. After the student graduated, the relationship resumed, and the teacher was terminated for violating the district’s policy that prohibited teachers from engaging in sexual relationships with former students within two years of graduation. The court dismissed the Title IX claim.

How various courts respond to the issue of deliberate indifference is illustrated by Flores v. Saulpaugh (115 F. Supp. 2d 319 (N.D. N.Y. 2000)). A student’s petition survived the school district’s motion for summary judgment because a fact issue existed regarding the administrator’s response to the student’s complaints. In this case, the student and her parent complained to the principal of a teacher’s suggestive behavior toward the student. The principal promised to investigate the matter but did not do so, nor did he notify the Title IX coordinator of the complaint. Harassment, according to the student, continued for about a year after the complaint. In this matter, the court found a fact issue regarding the alleged indifference of the principal’s response. The court found that the principal had actual notice, effective at the time the student and her parent made their complaint. The principal also had corrective authority over the teacher. The court ruled that failure to investigate and to notify the Title IX coordinator constituted deliberate indifference, and the continued inappropriate behavior of the teacher may have caused harm to the student.

 

Rumors and Suspicions of Child Sexual Abuse are Enough to Warrant Action

How should a school respond to rumors of an inappropriate relationship between a child in its care and a staff member? Is a rumor sufficient to be considered notice? Schools can be sidetracked by the “logistics” of the rumor mill, short-circuiting a thorough investigation of what may, in fact, be an actual abusive relationship. For example, when a school principal knows that students are talking about a sexual relationship between a teacher and a student and are saying that the teacher and student have been texting and sending pictures to one another, the school must take these rumors seriously. Taking them seriously — that is, focusing on the alleged behavior as the genesis of the rumors rather than focusing on the way students are communicating (the logistics) — is key. I have seen too many situations where rumors were considered not credible — brushed off as children bullying each other — while an inappropriate relationship went on. It is important that reports of this nature are made to the state child protective agency so that specially trained and experienced individuals can conduct a thorough investigation. School officials are not trained to make a determination as to whether an allegation of sexual misconduct is substantiated or to determine that rumors can be dismissed.

In my practice, I have reviewed and analyzed the issues in numerous civil lawsuits as to whether a school or other agency met the professional standard of care in responding to rumors of sexual abuse. One of these cases involved the Texas City Independent School District in 2004. The district was accused of a breach in the professional standard of care, resulting in the sexual abuse of a preschool child by a classroom aide. This female student, because of her gender, was discriminated against when she was sexually abused. This was cause for a federal lawsuit under Title IX.

As the expert witness, I reviewed the case material, including sworn depositions, policies of the school district, records of the student, and information about the classroom teacher and aide. I determined that the teacher was not trained in the prevention, detection, and reporting of child abuse, including sexual abuse; the aide was hired without a proper background check and was not trained; the teacher allowed the male aide to supervise “bathroom time” with this girl, who had a disability, and the teacher wasn’t there to supervise. Another instructional aide in the class admitted having observed physical evidence that caused her to believe that the child was being sexually abused, but she failed to notify anyone about it and the abuse continued.

Although there was a policy in the school that addressed sexual abuse and reporting requirements, it was not implemented. Training was insufficient or nonexistent. The aide did not know how to report her concern. She did not know that she had a duty to report her observations to state child protective services and to the school administrator. The abuse continued until another professional also became concerned, at which time the matter was reported, investigated, and the aide was arrested. It was my opinion that this breach of the professional standard of care was a proximate cause of the girl’s abuse. Adequate training and supervision, in my opinion, would have prevented abuse of this child.

 

Summary
Sexual abuse of students is tragic, and its rate of occurrence is unacceptable. Schools and other institutions have a responsibility to protect the children in its care. Beyond policies, a culture of training, supervision, and adequate follow-through on reports of abuse against students is a proactive strategy for reducing the potential for harm to children.

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.

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.

Liability in Child Injury Cases at Non-School Programs

Personal Child InjuryIn settings where children are supervised by adults, we often think about traditional settings, such as schools and summer camps. But these are not the only places where children participate in activities that require adult supervision and which can result in child injury cases. Some nontraditional settings include resort and vacation day care programs, community recreation centers, church-sponsored events, and Boy and Girl Scout activities, among others.

In these and other nontraditional settings, when children are involved and adult supervision is required, the organization has a duty to protect the children. Breach of that duty may extend beyond inadequate supervision or lack of supervision; staff and volunteers must be appropriately trained, and rules and regulations must be considered. If a plaintiff can show that poor supervision, inadequate training, or a lack of rules and regulations is a proximate cause of a child’s injury, the organization may be liable for child injury cases.

Importance of Training and Supervision Standards in Child Injury Cases

Schools and summer camps hire certified and trained employees, and they generally provide additional staff training in supervisory methods related to the age of the children and the activities in which they participate. Schools and camps also have formal child supervision policies and procedures, and they evaluate staff on their supervisory performance. Beyond schools and camps, however, many organizations with supervisory responsibilities for children are often much less rigorous in their methods.

Most frequently, these organizations do not have written policies and don’t provide training on how to keep kids safe from harm. Few provide adequate staff training and child supervision. These are often the elements that plaintiff will address in a lawsuit claiming negligence. Regardless of the organization, once it sponsors an activity involving children, it is responsible for their safety, which is incrementally enhanced with the level of appropriate training and supervision. In child injury cases in programmatic situations, approximately 80 percent of plaintiffs’ allegations involve negligent supervision.

Volunteers become an integral part of the work of most not-for-profit organizations and often fill a gap when paid employees are not available. At many organizations that provide services for children, volunteers conduct countless tasks. Churches often see themselves as “families” and sometimes may overlook the importance of training or supervisory functions of Sunday school teachers or of parents who organize and conduct activities such as Friday evening scavenger hunt. But all volunteers need adequate training.

For these organizations, external resources are available. GuideOne Insurance, for instance, offers SafeChurch training programs that provide church workers and volunteers important knowledge about potentially significant safety risks. These programs cover facility safety, transportation safeguards, and other categories. The company also provides informational resources about child abuse prevention, daycare and nursery safety, and playground safety.

To protect themselves from potential liability in child injury cases, many churches and other volunteer organizations have policies addressing the hiring of paid staff and the engagement of volunteers who work with and supervise children. For example, the Archdiocese of Baltimore requires each volunteer who has substantial contact with children at a parish or school to complete an application. Three references are provided, checked, and documented. A criminal history screening is conducted, and the volunteer must participate in training about child abuse and the protection of children. The archdiocese uses a compliance management system to track completion of these requirements.

Cruise ships offer an example of a nontraditional supervisory setting involving paid employees. Many cruise lines offer programs that provide young passengers an opportunity to explore art, play games, and to get acquainted with other children. Holland America Line, for instance, offers children’s programs during the day so that their parents can be on their own for a period of time. Most programming is during sea days, with late-night group babysitting available on some ships for a fee. On Carnival Cruise Lines, Camp Carnival is a fleetwide program for children who are 2 to 11 years old. Carnival also offers separate programs for children aged 12–14 and those 15–17.

These programs and others such as dance studios, karate centers, gym daycares, township recreational programs etc. are essentially the same in terms of duty as those provided in school and by other organizations, and the people responsible for children in their care have a duty to supervise them appropriately in order to protect them from harm. Cruise lines that offer youth programs generally accept all children who are potty-trained and meet the minimum age requirements, without knowing anything more about the child or his or her history of behavior. What parents don’t typically realize is that the cruise line can be held liable for child injury when supervision of these children is negligent.

Parents have a “contract” with caregivers and teachers to supervise and protect their children. In a child injury case for which I was engaged as the child supervision expert witness, a parent left his 7-year-old son in an afternoon program on a cruise ship, where about two dozen other children ranging in age from 7 to 10 participated in arts and crafts projects, a sing-a-long, snack time, and a nap. During nap time, when children were lying on mats on the floor and covered with light blankets, a 10-year-old moved over to the 7-year-old and sexually assaulted him. Testimony from other children in the room was that the person who was to have been supervising stepped out on deck to talk with another ship employee, leaving the children unsupervised for several minutes.

Determining duty was not an issue. Because the parent entered into a “contract” with the supervisor, and essentially the cruise line, that his child would be safe, the cruise line had a duty to protect. That duty required that a responsible adult be present to oversee the children during nap time and to intervene if any behavior on the part of a child might cause injury to another child. The program did have a policy that during nap time, floor mats were to be kept at least 18 inches from each other. This policy was practical, but it did not prevent a child from sexually abusing another. The only thing that would have prevented this was diligent supervision by a competent adult employee. Because the supervisor was not in the room for a significant amount of time, the opportunity arose for the 10-year-old to sexually assault the younger child.

Negligent supervision of children or lack of training for adults — be they paid staff or volunteers — may not necessarily create liability for an organization if a child is injured physically, is sexually assaulted, or dies while in the care of an organization. In child injury cases plaintiff must show that inadequate supervision or training is the proximate cause of the incident. The competence and training of the person supervising, the location of the supervisor at the time of injury, and the number of supervisors on duty are key elements in determining liability. The age and abilities of the child and the foreseeable dangers in the location of an activity are additional factors when determining liability.

Importance of Adequate Policies and Procedures in Child Injury Cases

As with schools, daycare centers, and summer camps, nontraditional organizations must consider policies and regulations when children are involved and supervised by adults. There are rules that may be developed into written policies made by the organization’s governing body; rules that are operational in nature, made by administrative and supervisory personnel; those that are considered ministerial acts for which there usually is liability; and rules of a specific activity that the children are engaged in, such as baseball, karate, or even crossing the street as a group. At this level, the supervisor or the person in charge of the conduct of the activity is required to see that the rules are followed.

The overriding assumption is that rules are developed to provide for the safety and protection of children, and that if they are not enforced, there is a greater possibility that a child will become injured during the activity. However, while there may be a duty to establish rules and regulations — either by statute or by virtue of a potentially dangerous situation — the mere fact that there were no rules or regulations is not negligence per se in child injury cases. As with lack of supervision, lack of rules and regulations must be the proximate cause of the injury.

One of the key responsibilities of supervision in any child-centered organization is to identify dangerous conditions or activities and then either warn of the condition or stop the activity. The supervisor must take appropriate action — and possibly create the rules on the spot — for the protection of the children. Duty to warn contemplates opportunity to know of danger (actual or constructive notice) and to have time to communicate it. Two children colliding while running on the playground may not rise to the level of negligent supervision in a summer camp because it’s not unusual for 6- and 7-year olds to run during recess on the playground. This would not be considered a dangerous condition or activity for which the counselor would need to warn or stop. On the other hand, when children are throwing rocks at each other, the supervisor has a duty to end the behavior and to warn children of the danger that someone can become seriously hurt. Then, the supervisor needs to keep diligent watch over the children and the area to ensure that the activity doesn’t reoccur. A supervisor should also prevent children from using defective equipment that would cause an activity to become dangerous. This might include a hazardous condition on the playground, unsteady gymnastic equipment, or a karate mat that has lost its padding.

Conclusion

The standard of care owed to children who participate in organization-sponsored activities must be consistent with legal standards and the standards of a reasonable person under the circumstances. In order to fulfill their mandate to see to the safety of children, nontraditional agencies that provide services for children need to know the requirements for reasonable and prudent operations. Anticipating dangers and correcting for them by warning participants and eliminating the dangers will help to protect children from harm. Training supervisors to keep an eye on children at all times and to anticipate that children don’t always act the way one might expect — they might run into the street or throw a rock at another child, for instance — will help protect children and the organization.

The standards by which nontraditional organizations operate are not always clear-cut. The methodical and systematized practice of safety education within the agency until all employees and volunteers are thoroughly educated and habitually perform their functions with safety as the uppermost concern will go a long way toward protecting children from harm and protecting the organization from costly litigation for child injury cases.

Mandatory Child Abuse Reporting and School Liability

Lost and aloneWhen child abuse is alleged to have taken place in a school, daycare facility, preschool program, summer camp, or other entity responsible for the supervision and safety of children, there is always the possibility that the entity may be liable if negligence can be established. Schools and other entities with a duty to protect children often become embroiled in lawsuits alleging that breach of this duty was a proximate cause of a child’s injuries. Though laws vary, states adopt a broad definition of child abuse, including physical and emotional abuse, neglect and abandonment, incest, sexual molestation, and sexual exploitation. Typically, a child abuse report must be made to a designated state agency responsible for child protective services when a person, in his or her official capacity, suspects or has reason to believe that a child has been abused or neglected, or knows that a child has been subjected to conditions that could reasonably be expected to result in harm.

Mandatory Child Abuse Reporting

For example, if a parent takes a child to the emergency room after the child comes home from a day care center with an injury, the treating physician may make a child abuse report based on a reasonable suspicion that abuse occurred at the center. The child protective agency will conduct an investigation to determine whether the report can be substantiated. If it is substantiated, the parent may file a civil lawsuit against the daycare center for claims that might include negligent supervision of children; negligent hiring, training and supervision of staff; breach of professional standards of care; breach of the day care center’s own standard; and any other claims that may have been a proximate cause of the injury.

All U.S. states and territories have laws identifying individuals who are required to report suspected child abuse. Social workers, doctors, teachers, school principals, and other professionals who frequently work with children are usually identified as mandated reporters. Mandates aside, any person with reasonable cause to believe that a child was abused can make a report — and a handful of states, such as New Jersey and Wyoming, requires anyone who knows of or suspects abuse to make a report. State laws anticipate that schools and other entities will have developed internal systems for processing child abuse reports and complying with state statutes. The law may also require the school or entity to provide its employees with written information explaining reporting requirements and to provide training in their execution.

Lack of Child Abuse Reporting Training and Procedures

During the course of an investigation into alleged child abuse, it is not uncommon to learn that staff at a daycare center or school had knowledge of, or had observed behavior indicative of, child abuse or neglect but failed report it to the appropriate agency. Failure to report often results from lack of training about mandatory child abuse reporting laws and detection of child abuse and neglect. This can leave a school or other entity involving children liable for a child’s physical and emotional injuries. Thus, for the protection of children, it is extremely important that all employees are trained in the prevention, detection, and proper reporting of child abuse. Many schools and daycare centers bring in outside companies and professionals to provide training.

Schools often lose a civil lawsuit when a plaintiff’s attorney can demonstrate that staff was not aware of their responsibility to report suspicion of child abuse. Consider this example: An elementary school librarian watched as a child with a disability who exhibited behavior problems was aggressively dragged out of the library by her special education teacher and forcefully slammed onto a chair in the hallway. Concerned, the librarian reported the teacher’s behavior to the principal. “Oh that’s happening again?” the principal responded. Neither the librarian nor the principal subsequently reported the incident to the proper authorities, even though the principal had prior reports of this teacher mistreating students. The teacher’s behavior continued for several months until a parent went to the police and filed a complaint.

In this case, if the plaintiff’s attorney can demonstrate that the teacher’s behavior would lead a reasonable professional to report such behavior — yet the lack of such a report allowed the behavior to continue, ultimately resulting in harm to a child — then he or she will be in a strong position to settle in favor of the child. If, on the other hand, the defendant’s attorney can demonstrate that the school had appropriate policies and procedures; adequately trained its staff in the prevention, detection, and reporting of child abuse; disciplined the teacher appropriately when an incident occurred; and took other measures to protect students, including the plaintiff, the school will have a better chance of defense.

At schools and other entities responsible for the supervision and safety of children, staff may learn of abuse in two ways. They may see abuse or have direct knowledge of it. Alternatively, they become aware of the possibility of abuse through rumors, innuendo, or secondhand reports. A pattern of poorly explained bruises and other injuries may raise reasonable suspicion of abuse on the basis of conversations with the child or his or her parents, family, or friends.

To protect children and to allay fears of legal reprisals, people who report child abuse are granted civil and criminal immunity. In some states, immunity is absolute, meaning there is no liability, even for maliciously and knowingly submitting a false report. In other states, immunity is granted only for reports made in good faith. Good faith will be presumed if the reporter acted in the discharge of his duties and within the scope of his employment, and if the report did not result from willful misconduct or gross negligence.

Even with the protection of immunity, administrators and teachers often hesitate to make child abuse reports. Failure to make a report is a misdemeanor that exposes the educator to the possibility of criminal prosecution. There is also the possibility of civil liability if harm done to a child might otherwise have been prevented by reporting prior behavior. It is, therefore, a legal imperative that teachers, counselors, and others responsible for the safety and welfare of children file a report whenever they have reasonable cause to suspect child abuse.

Carrying Out the Duty to Protect Students from Child Abuse

Schools and other agencies have a duty to protect children in their care from harm. This includes abuse inflicted or created by its own staff and by fellow students. Although laws vary from one state to another, definitions of abuse often are based on the federal Child Abuse Prevention and Treatment Act (CAPTA) of 1974. CAPTA identifies child abuse and neglect as “the physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child … by a person who is responsible for the child’s welfare.”

While acts by a staff member that result in student injury generally fit into the category of negligence, a teacher or an administrator as a state actor can generate a state-created danger. As opposed to negligence, state-created danger is generally applied under Section 1983 of Chapter 42 of the United States Code. School officials can be held responsible when they knew of impending danger, were recklessly indifferent to it, and thus knowingly created a dangerous environment that led to an otherwise preventable injury. Section 1983 has been used to seek monetary damages for violations of what courts refer to as bodily integrity, which is protected by the 14th Amendment, which prohibits “unjustified intrusions on personal security.” Most such cases involve either sexual molestation or excessive corporal punishment.

At the state level, case law has established a school’s responsibility for protecting students against the actions of other students, in addition to the actions of staff members. In Frugis v. Bracigliano (177 N.J. 250 [2003]), the New Jersey Supreme Court ruled that “[a] board of education must take reasonable measures to assure that the teachers and administrators who stand as surrogate parents during the day are educating, not endangering, and protecting, not exploiting, vulnerable children.” Four years later, the same court, in L.W. ex rel. L.G. v. Toms River Regional Schools Board of Education (189 N.J. 381 ([2007]) expanded “reasonable measures” to include protection from student-on-student harassment. This case involved a youth whom classmates taunted with homosexual epithets. The majority opinion stated that “although Frugis involved the need to protect children from adults, its rationale also applied to the present circumstances.”

Schools often establish procedures requiring teachers and other employees to report suspected abuse to the principal or school social worker. When a statute requires a teacher to make a prompt report of suspected abuse to state authorities or law enforcement, the teacher is not relieved of this obligation simply because he or she has followed internal reporting procedures. Some state laws do excuse a teacher from state-mandated reporting if someone else either has done so or will report the incident of suspected abuse. In these situations, teachers should always follow up to ensure the report was made to the appropriate agency.

Assessing whether a school or other entity acted reasonably, appropriately, and within the professional standard of care in a given circumstance requires comparing the standard (state law requirements and the school’s own policies and procedures) against school officials’ behavior. Their actual behavior, or response to an issue of abuse, is established by reviewing the facts as identified through reports and testimony. For example, if a school requires that all staff receive copies of the state statute and the school’s own policy governing the prevention, identification, and reporting of suspected abuse, the plaintiff’s attorney may argue that the school either failed to have the policies required by law or, at best, had these policies in place but failed to implement them effectively, constituting proximate cause of injury to a child. The defendant’s attorney, on the other hand, will argue that the school or entity met the professional standard of care by having appropriate and reasonable policies and procedures but that an intervening element, such as an employee’s willful disregard for this standard, was a variable leading to the injury.

Should the School Have Known of Child Abuse?

To what extent must a school or other entity responsible for care of a child have knowledge of a reason to take action before it can be held liable? A Kansas case is illustrative of this point. In Canaday v. Midway Denton U.S.D. No. 433 (218 P.3d 446 Kan. Ct. App. [2009]). a student alleged abuse by a coach whose predisposition to sexual misconduct was known by the school. The school countered that that coach’s conduct was unforeseeable. Prior to the allegation, the superintendent received two reports from other students who claimed that the coach inappropriately touched them. A prior investigation did not reveal evidence to support a claim of misconduct at that time, though the court concluded that the investigation provided grounds for the case to survive summary judgment and that a jury should determine whether the school should have foreseen the teacher’s conduct.

In another example, a federal court in Pennsylvania determined that school officials must take prompt legal action if they know or suspect that a teacher or other staff member is abusing a child. In Kimberly F. v. Northeastern Educ. Intermediate Unit 19 (2007 U.S. Dist. LEXIS 35778 [M.D. Pa. 2007]), a parent of a child with autism sued on numerous federal and state grounds, alleging that the teacher hit, grabbed, stepped on, verbally abused, and physically restrained their child. The suit also claimed that two assistants had notified supervisors, but the supervisors purportedly failed to investigate or report the teacher’s alleged conduct to child welfare authorities. The parent claimed that the supervisors instead accused the assistants of “breaking a silent code” and transferred them to another district. The court wrote that it was reasonable to infer that the supervisors “were on notice about [the teacher’s] alleged abusive acts and knew or should have known that their nonfeasance would allow the abuses to continue.” The court disallowed the supervisors from asserting qualified immunity as a defense.

Summary

Some things a school or other entity should consider to protect the safety of children in their care and to safeguard themselves from liability:

  • Train staff to identify indicators of abuse and about their duty to report
  • Develop and rigorously enforce a clear policy on each employee’s role in protecting children and responsibility for reporting abuse
  • Employ screening methods and follow state background check laws to keep abusers from having contact with children through the hiring process, and carefully check employment references
  • Educate children in how to recognize abuse and how to respond when they are abused

Together, state law and internal policy constitute the professional standard of care for a given school or other entity entrusted with the care and safety of children. The question of whether the entity acted reasonably and appropriately and within the professional standard of care with regard to the protection of children is addressed through the context of both. There are common elements in state child abuse statutes. The laws require certain professionals with “reasonable cause to believe” or “reason to believe” that a child has been abused or neglected to report suspected abuse. Actual knowledge of abuse is not necessary. Once abuse is suspected, the report must be made immediately to designated child protection agency, department of welfare, or law enforcement unit, depending on the specifics of the law.

School teachers and administrators and staff at daycare centers, camps, and other entities are often the first line of defense against abuse of children. Lawsuits against schools and other entities often focus on inadequate policies, lack of appropriate training, poor investigative procedures, failure to report to the a child protective agency, and deliberate indifference to what officials knew or should have known. When any of these elements can be demonstrated, the institution may have difficulty defending its actions. On the other hand, if the school or other entity takes some important steps to protect children — and abuse nonetheless occurs — the defendant may be able to present a cogent argument that it met the professional standard of care and that failures to report or follow procedures were not a proximate cause of injury.

Child Injury and Daycare Negligence: Liability Expert’s Analysis

Daycare Negligence Expert

Daycare accidents and injuries are preventable with proper supervision, regular inspections and adequate training.

Millions of children participate in programs operated by daycare centers, nursery schools, and camps across the United States and Canada. The most important aspect of childcare is the safety and supervision of children. When a teacher, recreation leader, camp counselor, or other supervisor is engaged in activities involving young children, there is a duty to protect the child from physical harm, sexual abuse, and other forms of personal injury. A breach of duty to protect the health, safety, and welfare of a child that leads to injury may result in daycare negligence lawsuits.

As an example, just before naptime a 4-year-old in a nursery school found a small button-shaped battery. Before dozing off on the cot, the child put the battery in his nose. A few days later, his mother noticed a discharge from his nose and thought he had a cold. After the boy complained of facial pain, she took him to a doctor. The battery was discovered lodged in his nose, leaking toxic chemicals. The battery caused serious burns and injuries, requiring extensive medical care.

Child Supervision and Daycare Negligence

Parents who leave children in the care of professionals trust them to make the decisions necessary to protect their children. This is reasonable, and every parent expects their children to be as healthy when they pick them up at the end of the day as when they left them there in the morning. Daycare programs, nursery schools, and camps, then, must exercise the highest degree of protection with children under their supervision. This includes taking adequate precautions to prevent all reasonable dangers; failure to do so can leave these programs liable for injuries to children in their care — and thousands of dollars in settlement or litigation costs.

These programs, however, are not “insurers of children’s safety.” The law requires those in charge to follow a standard of care that is appropriate for the age of the children under supervision and the particular circumstances. This duty does not require individual supervision of each child at all times. If a child sustains a serious injury while under the care of a daycare, nursery school, or camp provider, courts typically apply a duty/risk analysis to determine whether the provider met the applicable standard of care. This analysis takes into consideration the age of the child and the activity in which an injury was sustained, and then considers the program’s duty of supervision against the risk of injury. The standard of care forms the basis of reasonable actions for maintaining the health, safety, and welfare of children engaged in a specific activity.

While states and courts vary on examples of reasonable dangers in daycare centers, nurseries, and camps, the general rule is: Identify risks associated with operating a program and supervising children, and correct for those risks. This includes the risk that toys may become unsafe with use or neglect. Staff should also check for such dangers as electrical hazards, sharp objects, and unprotected holes in the playground surface. It is important to note that reasonable dangers are those that the staff can control. A facility inspection will reveal many of these potential dangers. In addition to physical risks, staff supervision should be a consideration. Does the facility provide the required ratio of appropriately trained supervisors to children? Compliance with this standard can reduce the potential for liability and claims of negligent supervision of students and staff.

In addition, the question of whether injury to a child was foreseeable is often addressed in litigation and argued by plaintiff and defendant attorneys in such cases. For example, if the director of a daycare center conducts a safety inspection and discovers the slide on the playground is not securely fastened to the ground, causing it to sway when children use it, is foreseeable by any reasonable person that a child could be injured when playing on it. Once the program director knows of a hazard, that person has a duty to correct the hazard and to guard the children from injury until it is corrected. In this example, a daycare administrator knew of the defect and reported it to the maintenance department but failed to warn of the danger by restricting children from using the slide and did not follow up to ensure that the maintenance department repaired the slide in a timely manner. The following week, when three children climbed the steps of the slide, it fell over, seriously injuring one child. This injury was foreseeable and the daycare center could not defend its inaction, which was judged to be a proximate cause of injury to the child.

Courts are less likely to hold daycare centers, nursery schools, and camps liable for injuries resulting from normal childhood play. For example, if a nursery school maintains the correct level of supervision and two children are running while engaged in play typical for their age, collide, and one is injured, the facility is unlikely to be held liable. This is considered typical child play that presents possible physical injury, a normal part of childhood interaction.

A child finding a loose battery on the floor of a nursery school and inserting it in his nose is not typical child play. When a facility provides equipment and supplies, including electronic books and toys, the agency has a duty to reasonably assure that children will use these items in a way that does not present a risk of harm. Program administrators have a duty to check consumer warnings and recalls on equipment. Following manufacturer recommendations and training staff on appropriate use of equipment is insurance against misuse that might cause injury to a child. A facility can reasonably protect a child from harm by regularly inspecting its equipment and placing any unsafe item out of commission. In this case, there was no inspection of the battery-operated electronic books, even though a staff member was aware that the battery compartments were compromised on several books. Lack of attention to this detail cost the daycare center substantial litigation costs and a large settlement.

Daycare Accidents and Negligent Supervision and Training of Staff

Other types of accidents can be prevented and daycare negligence claims avoided with proper staff training and with appropriately developed and implemented policies and procedures. For example, children in an afterschool daycare program in a school cafeteria were running when one ran into a 300-pound, fold-up cafeteria table left in the middle of the room. The table fell over, crushing the head of another student. In this situation, the person in charge failed to make even a cursory assessment of any dangerous conditions present. Any reasonable person would agree that injury is foreseeable if there is a non-stationary fold-up table in the middle of a room where children are running. This example illustrates the importance of staff training, policies, and procedures and regular inspections for hazards to ensure children’s safety. The procedure of the school custodian was clearly outlined in her job description: After lunch, fold up the tables, move them to the wall, and secure them in their proper location. The school had an adequate policy and the procedure was written.

Questions remained, however: Was the custodian adequately trained? Also, was the person appropriately supervised to ensure that she was meeting the requirements of her job description? The custodian saw or should have seen the table in the middle of the room. She should have moved it and secured it to the wall but didn’t. Additionally, the teacher saw the table in the play area but did not warn the students — and even encouraged them to play around an obviously dangerous item that was not supposed to be there. The custodian and the teacher both saw the table but deliberately ignored the foreseeability of student injury.

Sometimes, accidents and child injury are unavoidable even when daycare centers, summer camps, and schools follow all of the rules. For example, a child in a summer preschool program was accidentally struck in the eye with a stick, causing serious permanent injury, despite the presence of an appropriate number of counselors who were trained and carefully supervising the children. Because this center acted reasonably and appropriately with regard to staff hiring, training, and child supervision, it had a strong defense against liability.

Beyond accidents and environmental hazards, claims against a staff member of sexual or physical abuse or neglect, student-on-student sexual abuse, and even wrongful death are not always the fault of the program. A strong defense can be made when the agency practices appropriate supervisory techniques, develops and implements good policies and procedures, trains and supervises staff, and follows up on any foreseeable hazards and safety concerns. These steps include regular background checks for employees and volunteers, making sure that facilities are properly secured so that children can’t leave the premises, child–staff ratios, keeping up with state licensing requirements, training staff on how to report child abuse and neglect, and inviting outside agencies and professionals to conduct trainings and safety-and-risk assessments. Various online resources can provide daycare and camp administrators in the United States with additional information on local, state or national standards and guidance on health and safety requirements. The Canadian Child Care Federation also provides numerous guidelines and resources for childcare providers.

Conclusion

The standard for daycare centers, nursery schools, and camps is higher than one would expect of parents who supervise children at home or at a playground, and courts have continuously upheld supervision and safety as the primary intent of such facilities. The standard of care is measured by the judgment, knowledge, experience, perception of risk, and skill that a person in a professional capacity would have, and this standard must be comparable to best professional practices. Did the nursery school administration in the battery example take reasonable precautions to prevent injury? Did the administration of the day camp take reasonable precautions so that a child would not be injured with a stick? Although it is reasonable for parents to demand a safe environment for their children while at a nursery school, daycare center, or camp, courts recognize that it is impossible for caretakers to prevent every possible injury. On the other hand, those responsible for the safety of children must demonstrate that they acted appropriately, reasonably, and within the professional standard of care if they are to avoid liability and costly lawsuits.

Private School Lawsuits: Contractual v. Constitutional Standard of Care

Sexual abuse in private schools

In private schools, academic and conduct issues involving students raise contractual as opposed to constitutional issues.

The relationship between private schools and their students is very different than the one that exists when a student is in a public school. In private schools, the relationship is contractual in nature. The contract is expressed or implied in written documents, such as promotional literature, student applications, and student and staff handbooks. By contrast, the relationship between public schools and students is governed by federal and state statues, such as the Individuals with Disabilities Education Act and Title IX. In public schools, students are afforded constitutional, substantive, and procedural protections that are generally not applicable in a private school. In private schools, academic and conduct issues involving students raise contractual, as opposed to constitutional, issues.

This article will present standards that should be considered by an attorney representing a plaintiff or defendant in private school lawsuits and while assessing the rights of private school students regarding academic matters, discipline, and the right to an education.

Contractual vs. Constitutional Standing

Private school students do not enjoy the wealth of constitutional rights afforded to students in public schools. Public schools are generally treated as governmental institutions, and various statutes protect students against discriminatory actions by governments. The private school, however, is not an arm of the government. Therefore, private schools do not have the same responsibility a public school has to provide a student with a disability an appropriate education, for instance, or to protect a student from harassment, intimidation, and bullying.

Private school students and their parents, however, have come to expect due process if they perceive that their rights have been denied. Relying on the framework of public-sector rights will often focus dispute resolution in a private school on concepts of fairness that mimic due process in public institutions.

Due process means that people will be given an opportunity to tell their side of the story before an authority makes a decision. There is the expectation that students will be treated fairly and will be subject to rules that are fair and consistent for everyone. In the public school sector, this is identified as procedural and substantive due process rights. In private schools, a 1993 case in Louisiana (Ahlum v. Administrators of Tulane Educ. Fund) validated the expectation that rules and processes be clearly stated and that they are neither arbitrary nor capricious.

In a private school, the expectation of fair treatment is viewed in a contractual context: Unacceptable conduct by a student may result in penalties, discipline or sanctions. The language contained in private school promotional materials, admission applications, student and staff handbooks, and other documents forms the basis for such a contract, and the standards articulated in these documents form the basis for determining whether a private school met a professional standard of care. If the language in these documents is concise, unambiguous, and supported by the school’s mission and goals but the student breaches this contract, then the school can act within the confines of the document without retaliation from the student. Whenever these documents create conflicting or ambiguous standards, however, students are likely to contest any discipline on the basis that they have been treated unfairly.

Illustration of Successful Private School Lawsuit

In a prestigious private church-related school, a coach and student were having a sexual relationship. The coach was fired and the student remained at the school. Firing the coach was appropriate and met the school’s standard of care. In the school’s written employment agreement with the coach, there is specific language prohibiting such behavior and outlining the consequence: immediate termination. In addition, the staff handbook clearly identifies prohibited behavior between a staff member and a student. In this situation, there could have been no successful challenge by the coach.

The behavior between the coach and the student was reported, investigated, and found to have merit. He was arrested after admitting guilt. The coach left the school without a challenge. The student, on the other hand, remained at the school. Jessica was a year and a half out from graduation and intended to apply to several colleges based on her excellent grades and competitive success in sports. As soon as the story hit the media, her classmates began harassing the girl, saying, “Why did you ruin Mr. Hank’s career?” “You should have kept quiet. Now look what you’ve done.” “You ought to leave the school.” The talk became so open and abusive that some teachers told the administration that it impeded their ability to teach. Jessica’s continued presence, they maintained, caused such disruption that other students were losing out. Wanting to quiet things down without generating more media attention, administrators met behind closed doors and developed a plan to extract Jessica from the school. Without her, they concluded, the problem would go away and the administration would be able to focus on recruiting other students.

Jessica, meanwhile, continued to be victimized by those she thought of as her friends. The headmaster called Jessica’s father and asked him to come to the office to talk about how the school can curtail the “disruptive” talk among the students and what to do to help Jessica. What parent wouldn’t want to meet with a school official to put an end to his child’s harassment?

Jessica’s father showed up at the headmaster’s office ahead of schedule, anxiously wanting to work with the school to help his daughter. He was invited into the administrator’s office, where he was greeted by the headmaster, the dean of students, and the attorney representing the school. The headmaster told Jessica’s father that she was no longer welcome at the school. She needed to leave, he was told — now, mid-way through the school year — and she would not be allowed to return for her senior year. The headmaster also told Jessica’s father that the school would not write favorable recommendations to colleges. On the other hand, he was told, if he signed a withdrawal agreement immediately, the school would return one half of the year’s tuition, would support her application to another high school for her senior year, and would write favorable letters to colleges later.

Jessica’s father wasn’t prepared to be blindsided. Under the pressure of the situation, he did not consider that the school had very clear policies against student-to-student harassment, intimidation, and bullying. The student handbook clearly prohibited students from intimidating or spreading rumors about one another, making Jessica’s treatment by fellow students in violation of the school’s standard. The student code of conduct called for suspensions of students who engage in such behavior. If the behavior was severe enough or if it occurred a second time, the student could be considered for expulsion. The handbook and code of conduct did not provide for disciplining or expelling the victim of such behavior. Under pressure, Jessica’s father signed the agreement and took his daughter out of the school that day.

He later had second thoughts, realizing that he had been coerced by a school more concerned about its economic future than Jessica’s emotional future. Because this was a private school, the administration had the right to determine whether Jessica would be accepted back for her senior year. However, the school had a duty to follow the professional standard of care it defined in its own promotional materials, student application, and other documents.

Thus, Jessica had been wronged by the school twice — once when it failed to protect her from the coach’s abuse and a second time when it expelled her. She didn’t return, but with the help of an attorney Jessica’s father filed a lawsuit against the school. A jury awarded Jessica $12.5 million in compensatory and punitive damages based on emotional and academic harm. Let’s take a closer look at this case.

Assessing Private School Claims

An attorney representing a plaintiff or defending a private school should follow these steps when assessing a case such as this:

  1. The standard. The standard that must be applied in a private school is derived from the school’s own documents, such as its promotional materials, statements on student applications, teacher and coach handbooks, student handbooks, and disciplinary codes.

The private school in this example was very clear in its promotional materials and student handbook. In its brochure, the school’s stated goal was to promote the well-being of its students and, to that end, it touted a program described as supportive — one that encourages friendships and discourages inappropriate interactions between students such as harassment, hazing, and bullying. The student handbook clearly stated that no student shall spread rumors about another student and that no student shall harass, intimidate, or bully another student. The school provided information about its policy at an assembly at the beginning of each school year, and every student and parent received a copy of the policy. The student code of conduct reinforced this policy, stating that students found to be spreading rumors would be subjected to discipline, including a suspension of up to three days. A student found to be harassing, intimidating, or bullying another student in a way that interfered with another student’s education or school life would be suspended immediately for three days. If it happened again, the aggressor would be considered for expulsion.

  1. Breach of standard. Once it is established that the school has a standard of care, the next element to examine is whether it breached that standard by the actions or inactions of its administration and/or other employees.

Knowing what was occurring among the students will indicate what the school, through its administration, knew and whether its policies were being violated. In this case rumors, harassment, intimidation and/or bullying were known through the reports of the teachers, students, and other observers. Documentation in the form of written reports, disciplinary action taken toward any student, and letters to parents and students all form the basis for analyzing how the school met its duty according to its policy. Did the school appropriately respond to reports of rumors? Did the administration investigate the reports of harassment, intimidation, and bullying of Jessica according to its standard? What did the school officials determine — and did they appropriately and reasonably apply its policies?

  1. Harm to the student. If a private school breached its own established standard, then the next element to review is damage, if any, to the student. This damage can be academic or emotional. If there was no breach of standard, there might still be harm but that harm might have been caused by an intervening variable. The school might successfully defend against harm caused by external factors. On the other hand, if the school breached its own standard, ignored its own policy, or acted outside the contract it had with students and parents, and if it can be argued that this breach caused the student harm, the plaintiff may prevail.

If a student stays home for a period of time because other students’ intimidation, rumors, or bullying made her fearful of going to school, it might be argued that the student was not able to access her education as per her contract with the school. Further, it may be argued that this situation caused damage to the student through the school’s breach of its own contract or policy. When a private school publicly states that it does not tolerate intimidation and that it has a process for disciplining students who engage in such behavior, it has a duty to fulfill that contract. If the school chooses instead only to focus on its concern for negative publicity, an argument can be made that the school focused on the wrong thing, breached its own standard, allowed the harassment to continue, and permitted the student to suffer academically and emotionally.

Summary

The rights of students are different in private schools than in public schools. In private schools, contractual rights prevail, and those rights are determined through explicit and implied agreements in documents produced by the school. In determining the merit of filing an action, plaintiff’s attorney should review these documents and focus on explicit language that leaves no doubt of a contract between the student and the school. When defending against a claim in a private school, defendant attorney should review the language of these same documents and be able to argue that the school did not act in an arbitrary or capricious manner.