Chapter+Eight

Educators and school board members are often concerned about the extent of their liability for damages as a result of their official action or inaction. The area of law that addresses these concerns is called tort law. A tort is a civil wrong in which one suffers loss as a result of the improper conduct of another. This branch of law is concerned with the compensation of losses suffered by an individual owing to an intentional or negligent act. Intentional tort: intent to do harm. Negligent tort: unintended accident or injury caused by the defendant A.  Intentional Torts The most common intentional torts that involve educators are assault and battery. Battery is the unpermitted and unprivileged contact with another’s person. Actual harm is not necessary to bring suit and ordinary contact allowed by social usage is not actionable. Assault is the placing of someone in apprehension of immediate harmful or offensive contact. Although courts have allowed wide latitude, a teacher may be charged with assault and battery as a result of disciplining a student. B.  Negligence An educator may be liable for an injury to a student, for instance, if it can be shown that the alleged negligent party should have anticipated the possible harmful results of his or her actions or inactions. A commonly employed test to determine negligence in a particular factual situation is whether the person accused of negligence acted as a reasonable and prudent person would have acted under the circumstances. The following elements must be present: 1.  Duty of Care There is a duty of care to act as a reasonable person, under the circumstances, toward another person with whom a common-law or statutory relationship exists. The common law, for example, has established a teacher-student relationship that imposes a duty of care on the part of the teacher. 2.  Standard of Care Generally, the standard of care a teacher must exercise to avoid liability is defined as that of the “reasonable and prudent” person. The standard of care varies according to such factors as the age of the student, the child’s mental capacity, and the environment and circumstances under which an injury took place. A higher degree of care should be exercised in potentially dangerous classrooms, such as technical education. 3.  Proximate Cause A causal connection must exist between a teacher’s conduct and the resultant injury for an action in negligence to prevail. Liability may be mitigated, however, if it can be shown that the cause of injury was the result of an intervening act or if responsibility can be legitimately shifted. 4.  Actual loss or injury Proof of damage is an essential element in a negligence action. Damages to assuage one’s feelings generally cannot be recovered in a negligence action where there has been no actual loss. C.  Defenses for Negligence In seeking to avoid liability for an allegedly negligent act, a teacher may attempt to demonstrate that the previously discussed elements necessary to establish negligence were not present. Common defenses include contributory negligence and assumption of risk. Contributory negligence may be available as a defense if it can be demonstrated that the injured party significantly contributed to his or her own injury, for example, by failing to exercise the required degree of care necessary to ensure safety. Assumption of risk may be available as a defense where the injured party knew of the possible danger and either by agreement or actions voluntarily accepted the possibility of harm. A.  Immunity In approximately half of the state, school districts have governmental or sovereign immunity from liability for torts committed by the school district, school board members or employees. The doctrine seeks to protect the limited resources of the school district. Application of the doctrine differed from state to state. Individual liability also varies among the states. Generally, school board members or other officials may be held personally liable for the improper performance of so-called ministerial duties. Ministerial functions are defined as those having to do with the execution of policy as opposed to the formulation of policy represented by discretionary actions. B.  Supervision Issues 1.  Before and After School In the absence of statutory requirements, courts generally do not find a duty on the part of schools to supervise students on their way to and from school except when they are on school buses. However, by participating and accepting funds from a city school crossing guard program, a school board voluntarily assumed the duty of verifying that the crossing guard would be present. **//Barnes v. Bott (1990)//**: A 6 year old girl was killed by a car while attempting the cross the road when a guard was absent. A duty of care of the part of the school may not be established if parents do not follow school rules that have been communicated to them. **//Jefferson//** **//County School District//** **//v. Justus (1986)://** The Colorado Supreme Court held that the school did not have a duty to prevent a student from riding his bicycle home, since his parents allowed him to ride to school. First grade students were not allowed to ride their bikes to school and the parents did not abide by it. Adequate supervision must be afforded students for a reasonable time as they congregate and wait for school to begin in the morning. **//Titus v. Lindberg (1967)//**: A principal was held liable for an injury that happened to a student before school because adequate supervision was not in place. 2.  During School Hours Generally, the standard of care owed to pupils by a teacher during school hours is that care which a reasonable and prudent teacher would observe in comparable circumstances. Although a state statute may require a teacher to “keep good order” in the classroom, this implies the use of reasonable force and does not authorize the teacher’s use of excessive force. Schools must provide proper supervision during times such as recess, passing through the halls, or lunch hour when students are out of class. **//Dailey v. Los Angeles School District (1970)://** The California Supreme Court ruled that school authorities were negligent in the supervision provided at noon recess when students involved in “slap fighting”. Schools may be liable for an injury to a student who leaves school without school or parental permission. **//Hoyem v. Manhattan Beach City School District (1978)://** The California Supreme Court held that the school district could be held liable for injuries suffered by a 10 year old student who was hit by a motorcycle. 3.  Off Campus Activities Required participation in off campus activities, such as field trips or inter scholastic activities including athletics or debates places the school in the same position of duty to use care to prevent injury as if students were on campus.
 * Chapter Eight: Educator and School District Liability **
 * 1) GENERAL PRINCIPLES UNDERLYING EDUCATOR LIABILITY
 * 1) LIABILITY UNDER STATE LAW
 * // Johnson v. Ouachita Parish Police Jury (1979) //** : A 7 year old child was killed while crossing a road in front of his school. Louisiana Appellate Court held that the public school did not have a legal duty to provide safety patrols or adult crossing guards.
 * // Richard v. St. Landry Parish School Board (1977): //** A teacher was not held liable for an injury that happened to a third grade student while unsupervised students were cleaning the classroom.
 * // Bartell v. Palos Verdes Peninsula School District (1978): //** The school district was not held liable for an injury occurring after school hours. The court maintained that school districts and their employees are placed under a general duty to supervise the conduct of children on school grounds during school sessions, school activities, recesses, and lunch periods.
 * // Hampton //****// v. Orleans Parish School Board (1982): //** A court in Louisiana ruled that a school board was not liable for injuries to a student by a rock thrown on school property.
 * // Willoughby //****// v. Lehrbass (1986): //** A Michigan court concluded that a teacher had used reasonable force when in an attempt to take a student to the principal’s office.
 * // Broward //****// County School //****// Board v. Ruiz (1986): //** A Florida appellate court upheld a jury verdict in favor of a high school student who was attacked and beaten by three other students while he waited in the school cafeteria for transportation home. The court rules that the school had a duty to provide some form of security to prevent such incidents from occurring.
 * // Rupp v. Bryant (1982): //** In Florida, a teacher and a principal were found negligent in failing to supervise school club activities.
 * // Raleigh //****// v. Independent School District (1979): //** A school district was found negligent in failing to provide adequate supervision at a required attendance by students of a downtown showing of a controversial movie entitled //King//. Obscene racial comments were made throughout the showing and upon leaving the theater, a student was pushed, her wrists slashed and purse stolen. The Minnesota Supreme Court upheld the awarding of damages against the school for failure to provide sufficient precautions in the light of having knowledge about racial tension.

III. Liability Under Federal law A. Liability under Title IX  1. Teacher to student harassment **//Franklin v Gwinnett County Schools, 503 U.S. 60 (1992)//** – upheld a claim for monetary damages under Title IX when intentional sexual harassment was shown. - A teacher has repeatedly sexually abused a student - Administrators knew about the harassment and took NO action - The decision established that a school district can be held liable for damages under Title IX in cases involving sexual harassment of a student **//Gesber v Lago Vista Independent School District, Supreme Court of the US (1992)//** – If a teacher harasses a student, the school is not liable for damages unless an official who could address the alleged discrimination and institute corrective measures knew and then acted with “//deliberate indifference//” to the harassment. We conclude that damages may not be recovered in those circumstances unless an official of the school district who at a minimum has the authority to institute corrective measures on the district’s behalf has actual knowledge of, and is deliberately indifferent to the teacher’s misconduct. - In 1991 Alida Star Gesber was in 8th grade and joined a book discussion with teacher Frank Waldrop. - During book discussion he made sexual suggestive comments to students. - In the spring he initiated sexual contact with Alida and they had sexual intercourse throughout the remainder of the year. - Gesber did not report the incidents to school officials. - In October 1992, parents of two other students complained to the principal about Waldrop’s comments in class - Principal had a meeting with Waldrop and Waldrop said he didn’t realize the comments he made were of that nature. The principal advised Waldrop to be careful about the classroom comments. - The principal reported the matter to the guidance counselor but did not report it to the Lago Vista Superintendant who was the Title IX coordinator. - A few months later a police office finds Gesber and Waldrop engaged in sexual intercourse and arrested Waldrop. - Largo Vista terminated Waldrop’s employment and revoked his teaching license. - When a teacher’s sexual harassment is imputed to a school district or when a school district is deemed to have “constructively” known of a teacher’s harassment, by assumption the district had no actual knowledge of the teacher’s conduct. Nor did the school district have the opportunity to take action to end the harassment or to limit further harassment. Congress enacted Title VII with two principal objectives in mind: 1. To avoid the use of federal resources to support discriminatory practices 2. To provide all citizens effective protection against those practices Notes **//Bostic v Smyra School District (2005)//** – In this case a 15 year old high school student develops a sexual relationship with a track coach for a year. This case addressed issues of “actual notice” and appropriate official”. Only the coach was found liable for damages ($400,000) as set forth in Gesber under Title IX. Merely having information to alert a school official to the possibility that a teacher was involved in a sexual relationship with a student does not constitute actual notice. - Father talked with the principal who talked with the coach - Coach denied contact but was to “minimize contract with Bostic” and to “cease one on one contact with Bostic” - Superintendent and Assistant Superintendent were notified of the issue - Coach has an encounter with another student - Coach is suspended and arrested - Coach plead guilty to crimes with both girls **//Buckely v Archdiocese of Rockville Center (1998//**//)// – Girl claimed she was sexually harassed by a priest. The school received services from a publicly employed psychologist but the court ruled that it was insufficient to establish the school received public funds. 2. Student to student harassment **//Davis//** **//v Monroe County Board of Education (1999)//** – this case shows the type of conduct and behavior for which a claim for damages may be made if a school shows “deliberate indifference” to “severe, pervasive, and objectively offensive” harassment of which the school has “actual knowledge.” - LaShonda Davis was harassed by GF when he attempted to touch her breast and made vulgar statements such as “I want to get in bed with you” and “I want to feel your boobs”. - Similar conduct continued by GF. - LaShonda reported this to her teacher and teacher told her family that the principal was informed. - LaShonda’s grades drop. - GF’s conduct continued for months. - GF put door stop in pants and proceeded to act in a sexual way in PE class toward LaShonda. LaShonda reported it to PE teacher. - GF harasses again under teacher Pippen’s watch. - Another PE class incident with GF and Lashonda reports the incident to Pippen and Maple. - In April, GF rubs up against laShonda in the hall and LaShonda reports it to Hall. - GF is charged and pleads guilty to sexual battery in mid-April. - LaShonda and other girls try to talk with the principal about GF and were told that “if Querry wants you, he’ll call” - There was never an attempt to separate GF and LaShonda. - After 3 months of the documented abuse, her seat was changed. The drop-off in LaShonda’s grades provides necessary evidence of a potential link between her education and GF’s misconduct. Court concluded that GF’s actions were severe, pervasive, and objectively offensive.

Section B Liability under 42 U.S.C 1983 Peggy Strickland and Virginia Crain brought suit against two school petitioners (school board members) claiming that their federal constitutional rights to due process were infringed under color of state law by their expulsion from the Mena Public High School on the grounds they violated school regulation prohibiting the use or possession of intoxicating beverages at school or school activities. The violation was a result of “spiking” the punch served at a meeting of an extracurricular school organization attended by parents and students. At the time respondents were 16 years old and in tenth grade. When confronted by the activity’s teacher, the girls confessed in hopes the school district would grant leniency and received an initial suspension of two weeks pending a school board meeting. In this first school board meeting, the girls and their parents were not present and the teachers rescinded their vote of leniency and therefore the board decided to suspend the girls for the remainder of the school year (3 mos). A final board meeting was held with the girls, their parents, and counsel in attendance. The board again concluded to expel the girls for the remainder of the school year. According to policy 1983, a qualified good faith immunity to school board members form liability for damages under that section. Although here have been different emphases of the common law immunity of public school officials in cases of student expulsion or suspension, state courts have generally recognized that such officers should be protected from tort liability under state law for all good faith, nonmalicious action taken to fulfill their official duties. We hold that a school board member is not immune from liability for damages under policy 1983 if her knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional right or other injury to the student. A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.
 * // Wood v. Strickland (Supreme Court 1975) //**

The Court of Appeals for the 7th Circuit held that students are entitled to recover substantial nonpunitive damages even if their suspensions were justified, and even if they do not prove that any other actual injury was caused by the denial of procedural due process. Jarius Piphus a freshman at Chicago Vocational High School during the 1973-74 school year was caught by the building principal smoking an odd shaped and irregular smelling cigarette. Meeting were held that included Piphus, his mother, his sister, school officials, and legal aid counsel. These meetings were held solely to explain the reason for the suspension, not to determine whether he had been smoking marijuana. Piphus and his mother filed suit against petitioners in Federal District Court charging that Piphus has been suspended without due process of law in violation of his Fourteenth Amendment rights. After 8 days of his suspension, Piphus was readmitted to school under a temporary restraining order pending actual and punitive damaged in the amount of $3000. The legislative history of policy 1983 demonstrates that is was intended to create a species of tort liability infavor of persons who are deprived of rights, privileges, or immunities secured to them by the Constitution.
 * // Carey v. Piphus (Supreme Court 1978) //**

Section III Case 2 and Section IV, V, VI

CAREY v. PIPHUS

This case covers the elements and prerequisites for recovery of damages by students who were suspended from public elementary and secondary schools without procedural due process. It was granted that the students are entitled to recover substantial non-punitive damages even if their suspensions were justified.

Piphus was outside smoking pot and was caught by the principal of a Chicago Vocational High School in 1973-74. He was then suspended for 20 days due to the violation of the school rule against drugs.

Piphus’s mother wanted a meeting and the purpose of the meeting was not to determine whether Piphus had been smoking marijuana, but rather to explain the reasons for the suspension. Piphus only served 8 days of his suspension and was awarded $3000.

Brisco was in 6th grade in Chicago and came to school wearing on small earring. (male) The previous school year the school principal had issued a rule against the wearing of earrings by male students because he believed that this practice denoted gang membership. He was suspended but deprived of his right to procedural due process.

Federal courts appear to be reluctant to hold school officials liable for damages unless they were deliberately indifferent to the possibility of these incidents happening.

FLORES v. MORGAN HILL UNIFIED SCHOOL DISTRICT

Teachers and administrators failed to stop the name-calling and anti-gay remarks and responded with inadequate disciplinary action to physical abuse of homo-sexual students.

IV. Parental Consent

Written parental consent for participation in extracurricular activities, such as athletic competition, field trips, or travel related to a school activity, is often required by school district policy. The importance of having some form of parental consent for travel to an off-campus activity is definitely needed. One can only imagine the difficulty, and increased legal complications, in having to inform parents of an off-campus injury to their child when those parents had no knowledge of an away-from-school activity or had not given consent for their child to participate.

V. Malpractice

There are three types of educational malpractice as non-actionable:


 * 1) Poor academic instruction
 * 2) Failure to place a student in an appropriate educational setting
 * 3) Failure to properly supervise students

Donohue v. Copiague Union Free School District

The plaintiff alleged that upon his receipt of a certificate of graduation he lacked the rudimentary ability to comprehend written English on a level sufficient to enable him to complete applications for employment.

VI. Insurance

Although it is important for educators to be aware of their potential liability for failure to act in a reasonable and prudent manner in preventing injury, the fear of significant monetary loss has been lessened by the availability of liability insurance. Many educators have such coverage as a part of their membership in a professional organization.