August 21, 2017

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

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

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

 

Professional Standard of Care Defined

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

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

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

 

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

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

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

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

 

Legal and Professional Standards of Care for Children with Disabilities

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

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

Public and Private School Employment Discrimination Lawsuits

School Employment Discrimination

Employment decisions in public and private schools should be based on qualifications, performance, merit, and seniority, rather than race, national origin, gender, religion, age, or disability.

Employment decisions in public and private schools should be based on qualifications, performance, merit, and seniority, rather than race, national origin, gender, religion, age, or disability. Teachers and other school personnel can sue for employment discrimination if they are wrongfully dismissed or demoted, if they were prevented from initially obtaining a job, or not appropriately accommodated for a disability or medical condition. Most employment discrimination violates either state or federal law, and legal protections are found in the 14th Amendment to the Constitution and Title VII of the Civil Rights Act of 1964. Additionally, two primary federal statutes prohibit disability discrimination in employment: the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) of 1990.

Statutes are extensive, complex, vary considerably, and can be confusing. As such, there is no simple solution to every case involving employment discrimination. But a careful review of the progression of events associated with a complaint often will bring litigation to a reasonable conclusion. In such cases as a teacher being fired or an applicant being excluded from a job interview, attorneys representing plaintiffs and schools must present a clear timeline of events leading up to a decision. Often, this task is accomplished in retrospect after a lawsuit has been filed, and any lack of documentation can make it difficult for plaintiff to argue employment discrimination or for a school to defend its decisions.

Reconstructing the file — an employee’s discrete, day-to-day personnel issues or the employment interview and process, for instance — is necessary to be able to determine whether the school, through its administration, acted appropriately, reasonably, and within the professional standard of care. Knowledge of employment law and the nuances that often exist in the school context is helpful to attorneys in representing the best interests of their clients in employment discrimination claims. Above all, however, a timeline of events and analysis of each significant entry are most important in determining whether a school met the law.

Anatomy of an Employment Discrimination Lawsuit

The importance of a timeline is illustrated in a recent case in South Carolina. Spartanburg School District Seven reportedly will pay $62,000 to settle a former teacher’s employment discrimination suit. Frances Grady claimed she faced discrimination over her disability, race, and age. Full details of the case were not disclosed publicly; however, court documents reveal the basics.

Grady, who was employed by the district for more than 30 years, was diagnosed with a condition that weakened her immune system. Grady said the school made accommodations for her, allowing her to teach smaller groups of students as an “interventionist.” In my opinion, such an accommodation would be appropriate and reasonable, and would have met the needs of the employee and the school at that time. Of course, a district’s needs may change over time, possibly necessitating a restructuring of staff. In other words, Grady’s accommodation might be viable one year but not the next. The following year, the school reassigned her to teach first grade.

This brings up a question: When did the school know of Grady’s disability? Did it make an accommodation for her by assigning her to teach as an interventionist — or did Grady disclose her disability after the school reassigned her to teach first grade?

In her employment discrimination lawsuit, Grady claimed to have told school officials that her condition prevented her from teaching first grade. Further, she said, the school told her it would no longer use interventionists, forcing her to go on leave without pay because, in her belief, the school would no longer accommodate her disability. Subsequently, Grady was not offered a teaching contract.

Later, Grady, who is white and in her 50s, learned that a younger, less-experienced African-American male was hired as an interventionist, thus prompting her claims of race and age employment discrimination.

If it could have been demonstrated that the school knew of Grady’s disability, accommodated her by assigning her to the interventionist position, then reassigned her to first grade — knowing that her disability would not allow her to be effective in that role — and finally replaced her with someone else, the school would have had difficulty justifying its position.

In its own defense, the school denied that Grady had been offered the interventionist position because of her health. The school also claimed that it was only after her reassignment to first grade that Grady submitted medical documentation about her diagnosis and requested an accommodation. The school acknowledged that Grady was not offered a teaching contract after granting her request for medical leave, but denied its action stemmed from any discriminatory or retaliatory reason.

If the school can show that it declined to offer her a contract because of a change in the school’s staffing structure — and not because of her disability — then it is likely the school would have been able to justify its position.

Title VII School Employment Discrimination Protections

Title VII prohibits entities with 15 or more employees from discriminating on the basis of race, color, religion, gender, or national origin. The statute covers hiring, promotion, and compensation practices, as well as fringe benefits and other terms and conditions of employment. Discrimination in hiring can be established by showing that the applicant is a member of a protected class, applied for and was qualified for the job, and was denied the position while the employer continued to seek applicants with the plaintiff’s qualifications.

When a public or private school posts a position for a teacher, lists the qualifications, interviews several qualified candidates but denies the position to a highly qualified individual who discussed her religious affiliation with interviewers, this individual might believe she was subjected to religious discrimination. In this example, the candidate would need to show, at a minimum, that she met the posted requirements for the positions, that other candidates were not as experienced and thus not as qualified, that the school did not offer her the position, and that it continued to interview.

In its own defense, the school would need to state a reason for its decision that does not violate Title VII. A reason for not hiring may be objective, such as the requirement that the candidate possess a graduate degree; subjective, such as an assessment of interpersonal skills; or a combination of both in determining which applicant is best qualified. If the school is unable to show a nondiscriminatory reason for its action, a decision for the plaintiff most likely would be granted. Additionally, the school should present a timeline of events from the time the position was posted (including a copy of the posting), through the interview, reference check, and finally a decision to hire another person. If the timeline reveals gaps in documentation and the school is not able to account for actions that should have been taken, this will strengthen a decision for the plaintiff.

Given the ease of presenting a nondiscriminatory reason, schools should be able to provide a satisfactory response in nearly every instance. For example, if the school hiring the teacher can show that discussions with past employers revealed that a candidate was not liked by fellow staff and often argued with them in an unprofessional way, these are valid considerations in the hiring process. How much weight this should have, however, is often argued in litigation. The school should develop a process for documenting interviews with former employers, particularly with respect to specific statements provided by an interviewee and the impressions of the person making the call.

If the school argues that nobody who interviewed the candidate knew of her religious affiliation and that it was not included on the application, then it has a good chance of showing that it acted appropriately, reasonably, and within the professional standard of care, and that it met the requirements of Title VII. On the other hand, if one of the interviewers pointedly asked the candidate about religious holidays she would be likely to take during the school year, this may be interpreted as obtaining information about the person’s religion that later factored into a hiring decision. In a situation where events during the interview might be the subject of disagreement, the jury will address the credibility of the witness.

After the school provides a rebuttal, the plaintiff then has the additional burden of proving that the school’s stated reason for not hiring is false and is but a pretext for prohibited intentional discrimination. In most instances, it is difficult to show a pretextual basis for discrimination. The plaintiff is likely to be successful only when it is clearly articulated, verbally or in writing, that the candidate was not hired because of a protected factor. This information may be found in a thorough document review during discovery. Notes made by people who interviewed the candidate might reveal bias through comments such as “too many religious holidays.”

Protection against discriminatory employment practices is not absolute. Facially discriminatory practices on the basis of religion, gender, or national origin (but not on race or color) may be permitted if they relate directly to a bona fide occupational qualification, such as a requirement that the head of a Catholic school be Catholic.

Disability Employment Discrimination

Another area that often comes forward in employment lawsuits is disability, either that of an individual applying for a position or that of a current employee. Federal disability law protects individuals who can show that they are “otherwise qualified” for a job, although reasonable accommodations may be needed at times. If a person meets the requirements for a position but uses a wheelchair, for instance, the school must consider how it can make an accommodation so that the individual can function successfully in the job.

When a person with an identified disability applies for a position at a school, the school must determine whether he or she is otherwise qualified. To be an otherwise qualified individual with a disability, the applicant must be able to perform the essential functions of the job in spite of the disability, although reasonable accommodation at times may be necessary. Consider, as an example, a school that posts a position for a high school social studies teacher. The announcement attracts the attention of a junior high school social studies teacher who has taught in the district for seven years. When it first hired her, the district assigned the teacher to a classroom on the second floor of a three-story building. Because of her disability, the teacher used a wheelchair and used an elevator to get to her classroom. The high school is in an older building with three floors but no elevator. In this situation, the school must first consider the applicant’s qualifications for the position, regardless if she uses a wheelchair. If she is otherwise qualified, then the school must consider reasonable accommodations necessary for her to function in the position.

Would it be reasonable, in this case, for the school to construct an elevator to accommodate the teacher if she were to be assigned to a classroom on the third floor? Alternatively, would it be a reasonable accommodation to move the social studies class to the first floor so she would be able to get to the classroom? Assuming she was otherwise qualified but not offered the position, the teacher would have a valid claim that she was discriminated against because of her disability and could present the position that simply moving the class to the first floor would have been a reasonable accommodation.

In defense against such a suit, the school should produce documentation that during the interview process and afterward, it considered what accommodations would be necessary for the person to be successful in the position. Suitable documentation would include a checklist of potential accommodations and/or modifications, such as moving a class to the first floor for a teacher who uses a wheelchair or constructing a handicapped-accessible bathroom on the first floor of an older building.

Conclusion

Basing employment decisions strictly on qualifications, performance, merit, and seniority, rather than race, national origin, gender, religion, age, or disability is the law. However, prospective employees or current teachers or staff can interpret employment decisions any number of ways, raising questions of equity. Sorting out what is in the best interest of the school while assuring that an individual’s rights are maintained can be confusing. Sometimes, decisions need to be made for the school, but not to the exclusion of the employment rights of the individual. It is not easy to balance the institution’s needs with its provision of an adequate education for students and the employment rights of its teachers and staff.

For both plaintiff and defendant attorneys, clearly documented timelines are essential. These are necessary for reviewing and analyzing whether a school acted within the law when making employment decisions. Documentation of candidate interviews, reference checks, and of issues leading to a decision to bypass a candidate for a job is essential for determining whether a school acted within the professional standard of care.

The important thing to remember is that treating all potential or current employees the same may not accommodate individual needs and may inadvertently result in discrimination resulting in employment discrimination lawsuits. Alternatively, treating each person differently may provide advantages to some over others. There is no simple solution for every case.

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

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

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

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

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

It was never about the kids

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

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

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

Beyond classroom instruction

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

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

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