Scared or Prepared Lockdown on Liability

1. Scared or PreparedLockdown on Liability

2. Presentation Completed by • David Lamar • Michelle Ledbetter • Melanie Lewis • Legal Entanglement Project for Education 545

3. Project Agenda or Outline 1. Introduction 2. Objectives 3. Definitions 4. Elements of Negligence 5. What do we have to fear?

4. Agenda continued 6. What is our responsibility? 7. Supreme Court Decisions 8. Future Legal Concerns 9. Threat Assessments 10. Take a Positive Approach

5. INTRODUCTION • More than ever before, today's schools are serving children from dysfunctional homes, children living in poverty, children of teenage parents, special education students and children of illegal immigrants. Unfortunately, resources to adequately serve the total range of needs presented by each of these increasing populations has becoming increasingly limited. Adequate parental supervision and control of these students has weakened, and many students have diminished respect for all forms of authority, including the authority of school personnel.

6. INTRODUCTION cont. • As a result, schools are confronted with problems of students possessing weapons, students involved with gang recruitment and rivalry, and students engaged in drug trafficking, both as sellers and buyers. Such problems lead to violent acts in and around schools. In order to create a safe environment that is conducive to learning, schools must implement safety plans and comprehensive prevention programs that address the root causes of violence or face Tort Liability charges.

7. Proposed Outcomes from this Project "Our schoolchildren should never fear [for] their safety when they enter into a classroom." - President George W. Bush, 10/3/06 • The goals for this project are to • Educate administrators about current trends in school violence. • Make administrators aware of Tort Liability issues as related to school safety. • Demonstrate how using a threat assessment could benefit a school.

8. Let’s review some definitions before we proceed any further.

9. Tort Laws Tort laws are laws that provide remedies to individuals harmed by the unreasonable actions of others. Tort claims usually involve state law and are based on the legal premise that individuals are liable for the consequences of their conduct if it results in injury to others. Tort laws involve civil suits, which are actions brought to protect an individuals private rights.

10. Two Major Types of Torts • Intentional torts: Offenses committed by a person who attempts or intends to do harm that result in injury • Negligence torts: When a person’s actions lead to injury and those actions were neither expected nor intended

11. Intentional Torts • Elements of an intentional tort • A person intends to do another person harm • Actual injury • Types of intentional torts • Assault: An overt attempt to injure another or create fear or apprehension • Battery: A person is injured as a result of intention physical contact

12. Teachers & Intentional Torts • Assault & battery cases in education often result from attempts to discipline a student or stop a student from injuring someone • Because courts are reluctant to interfere with a teacher’s authority to discipline, teachers are given considerable leeway by the courts in assault & battery cases. • Courts, however, have found teachers guilty of assault & battery when discipline is cruel, brutal, excessive, or administered with malice, anger, or intent to injure.

13. Determining Liability • When determining if a teacher’s actions or discipline constitutes excessive or unreasonable punishment, courts will examine: • The age of a student, • the instrument, if any, that was used, • the extent of the discipline, • the nature & gravity of a student’s offense, • the history of the student’s previous conduct, • the temper & conduct of the teacher

14. Negligence Torts • The difference between intentional torts and negligence torts is that in negligence the acts leading to injury are not intended to cause harm but were caused by a person failing to act reasonable to prevent the injury • Students bringing negligence claims must prove that school personnel should have foreseen and prevented the injury by exercising proper care • Accidents that could not have been prevented by reasonable care are not negligence

15. The Elements of Negligence • Duty to Protect • A reasonable standard of care • Proximate cause • Actual injury

16. Duty to Protect • The first element that must be proven in negligence cases is the duty to protect. • Teachers have a duty to anticipate foreseeable dangers & take necessary precautions to protect students in their care • Duties of educational personnel: • Adequate supervision (includes activities on and possibly away from school grounds) • Maintenance of equipment & facilities • Heightened supervision of high-risk activities • This element is easily proven in most cases

17. Failing To Exercise a Reasonable Standard of care • The second element that must be proven is that the teacher failed to exercise a reasonable standard of care to protect his or her students from injury. • Courts will gauge a teacher’s conduct on how a “reasonable” teacher in a similar situation would have acted. • Degree of care is determined by: • The teachers training & experience • The student’s age & disability (if one exists) • The nature of the environment & activity • The presence/absence of a supervising teacher

18. Proximate Cause • The third element that must be proven is whether there was a connection between the teacher’s breach of duty and the student’s injury. • This element often hinges on the concept of foreseeability. • Was the student’s injury something that should have been anticipated by the teacher? • If the injury could have been foreseen and prevented by the teacher and/or if a reasonable standard of care had been exercised, a logical connection, and therefore negligence, may exist.

19. Actual Injury • The final element that must be proven is that there was was actual mental or physical injury. • Even in instances where there was negligence, if there is no actual injury, damage suits will not be successful

20. What do we have to fear? • It's difficult to get a handle on trends and patterns in school violence, but the following slides do give a little perspective on what schools may be facing.

24. Wait! Are those statistics improving? • Maybe the statistics seem to be better but they are by no means acceptable. Also, there is one area where statistics are not improving.

27. Is it right that even one child be fearful of school?

28. Let’s define bullying • Bullying is when someone keeps doing or saying things to have power over another person. Bullying is abuse and schools may be held liable for allowing this abuse to continue.

29. Who are the bullies? • Bullies may be other students. • Or bullies may be educators. • A bully is anyone thatkeeps doing or saying things to have power over another person.

30. The School’s Responsibilities School districts should develop policies regarding standards of care & supervision There are five things every school should do to protect itself. • Plan for Problems. • Supervise students carefully. • Keep thorough records. Document, Document, Document. • Educate all stakeholders on the topics of tort and violence. • Report incidents to the proper authority.

31. What are the courts saying about school liability?

32. After experiencing an increase in criminal activity at North Central High School, the Metropolitan School District of Washington Township (IN) hired Northeast Security, Inc. to provide exterior security at the high school. Nick King, a student at North Central High School, was attacked and brutally beaten by four other students in the school’s parking lot. Nick sued Washington Township and Northeast Security for negligence. The Indiana Supreme Court has ruled that a school district can be sued for failing to take reasonable steps to provide security on school grounds. The court also ruled that a private security firm hired by the district could be held liable for negligence in performing its contractual duties. The Indiana Supreme Court held that both defendants could be held liable for negligent failure to take reasonable steps to provide adequate security against the criminal acts of third parties. In the case of the school district, the court concluded that while school districts cannot be sued for failure to prevent crime, they may be held legally responsible for failure to take reasonable safety precautions. Regarding the claim against Northeast Security, the Supreme Court found that the company could be held liable for negligence “in carrying out its contractually assumed obligation to the district.” King v. Northeast Security, Inc.

33. On August 30, 2002, Rachel Jennings and Lauren Schwaigert got drunk prior to taking part in a cheerleader squad performance at a football jamboree at Wentzville Holt High School. At the squad meeting the girls denied drinking when questioned by their advisor, Diane Moran. After five of the cheerleaders threatened to quit, Moran arranged for all the girls to meet with her where the girls once again denied their drinking. When Moran talked to the parents the next day, the girls admitted to their parents that they had been drinking. When principal Waters and District Superintendent Byrnes conferred they removed Moran from “her position as advisor to the squad because of their belief that she exhibited poor judgment in conducting such a late-night meeting.” When Waters gave the girls and their parents opportunity to deny the charges and defend themselves they failed to respond with answers or defense and instead presented a lawsuit. Simultaneous with the suit, the principal suspended both girls for 10 days according to school board policy. The judgment at the Appeals court presented by Riley agreed with the District that “Rachel and Lauren received all the process they were due for the suspension, there is no constitutional violation upon which municipal liability can be based.” They also ruled that a “single incident…is insufficient to make a lack of training patently obvious.” Regarding Water’s partiality, they agreed with the district that he was simply acting as an administrator and following District guidelines when he suspended the girls. Jennings v. Wentzville R-IV School District

34. A drawing depicting East Ascension High School under siege was found in a sketch pad carried by Middle School student, Andrew Breen drawn by his brother Adam Porter two years prior to this. “It was crudely drawn, depicting the school under a state of siege by a gasoline tanker truck, missile launcher, helicopter, and various armed persons.” “The sketch also contained obscenities and racial epithets directed at characters in the drawing, a disparaging remark about EAHS principal Conrad Braud, and a brick being hurled at him.” After suspending Andrew, the sketch was sent by Middle School principal, Linda Wilson to Mr. Braud at the High School. Braud confronted Adam and a box cutter and references to death, drugs, sex, depictions of gang symbols, and a fake ID were found after a search. After being told to remain at home until a hearing, Adam was arrested for “terrorizing the school and carrying an illegal weapon. After being counseled by the hearing officer that he was likely to be expulsed, Linda Lamendola decided to sign a hearing waiver and enroll Adam in alternative school. After returning to EASH the following August, he dropped out in March 2002. Later, Mrs. Lamendola decided to sue the school board and its superintendent and both principals. At the District Court level all claims were dropped against all defendants except Principal Braud. The decision was presented by Higgenbotham, Circuit Judge for the United Court of Appeals for the Fifth Circuit. In reverse of the Circuit Court, the appeals court found that Adam’s first Amendment rights were violated because he did not “intentionally” take or present the drawing and vulgar, racial and threatening words at the school. Therefore, they presented no “true threat.” However, Braud was entitled to “qualified immunity” because he perceived the drawing and words as a threat to the students safety and “he acted without the benefit of established law.” The upper court, however agreed with the Circuit court that his search was reasonable after Adam admitted that the drawing was his. Also, his procedural rights had not been violated because he admitted to the drawing and the incriminating items were found in his possession Porter v. Ascension Parish School Board

35. James R. Meeker, a freshman at Rosewood High School, in Wayne County, NC, joined the wrestling team where William H. Edmundson, II was the coach. From November 2000 through January 2001, Coach Edmundson encouraged Meeker’s teammates to abuse him. The complaint alleged that at least 2 team members would restrain Meeker and repeatedly beat his bare belly, known as “red bellies”. This occurred at least 25 times during the few months he was a member of the wrestling team. These beatings were endorsed by the coach in order to precipitate Meeker resigning from the wrestling team as there was a no-cut policy. When Meeker approached the coach about the beatings he was told they would continue until he “toughened up and stopped crying”. In January 2001, Meeker suffering from “traumatic stress” and the most recent beatings, brought a “multi-tool” to school. This led to his suspension and reassignment to a new school. In August 2003, Meeker’s parents filed suit against Edmundson, the principal, the superintendent, the chairman of the school board and the school board for compensatory and punitive damages for violations of the parents’ constitutional rights and civil rights. The court dismissed all the charges except the violation of Meeker’s constitutional rights by Coach Edmundson. The Court refused to grant Edmundson qualified immunity and he appealed to the superior court The beatings allowed by Coach Edmundson violated a constitutional right of Meeker, sighting Hall as precedence for a substantive due process claim. The court recognized the Fourteenth Amendment liberty interest in bodily integrity from Ingraham and the adoption of the Hall rationale and holding. Meeker v. Edmundson

36. Richard Simonetti, a fifth grade student, upon returning from recess to his classroom, was struck in the eye with a pencil being propelled from another student who had tripped while running. The teacher, Mrs. Powell, an employee of the School District of Philadelphia, was in the hall monitoring the return of her students from recess and speaking with another teacher when the incident occurred. The student, from whom the pencil was propelled, was being punished along with two other students for misbehavior that occurred earlier in the day and so had not been at recess. They had been speaking with the teacher during this time and when the other students were returning from recess, they were instructed to take their seats as the teacher stepped out of the room. The action against the School District of Philadelphia contended that the teacher was negligent in failing to properly monitor and supervise her classroom. The case was tried without a jury and damages were awarded by the judge in the amount of $15,000 to the plaintiff and his mother. An appeal was entered on the case. The Supreme Court, in 1984, dismissed the superior court’s ruling in favor of the appeal due to it being improvidently granted. Simonetti v. School District of Philadelphia,

37. L.W., who attended school in the Toms River Regional School District, suffered repeated physical assaults and verbal slurs over his perceived sexual preference. His parents brought an administrative action against the school district, alleging peer sexual harassment based on L.W.'s perceived sexual orientation. The Superior Court of New Jersey, Appellate Division, has upheld the state's Director of the Division of Civil Rights' (DDCR) ruling that a school district was liable for peer sexual harassment based on sexual orientation under New Jersey's Law Against Discrimination (LAD). L.W. v. Toms River Regional Schools Board of Education

38. Tanika Tate, a 15 year-old student at Suitland High School in Prince George’s County, Maryland, left school without permission in the company of her uncle-in-law for the purpose of having sexual relations with him. The uncle-in-law was later convicted of statutory rape and other offenses. Tanika sued the school district, claiming that school officials were negligent in not preventing her uncle-in-law from removing her from school without permission. The school district raised the defense of assumption of the risk, arguing that Tanika intentionally and voluntary exposed herself to the known danger of sexual relations with an adult. Tanika countered that the school district should be barred from raising assumption of risk, because consent is an essential element of this defense and a criminal court had already ruled that, as a minor, she was unable to give legal consent. A Maryland appellate court has ruled a school district can raise assumption of risk as a defense to a negligence claim by a student victim of statutory rape where the student consented to engaging in the sexual relations. Tate v. Board of Education of Prince George’s County

39. What will happen in the future to education if school violence is not addressed? While educators have typically enjoyed immunity from legal charges concerning liability, violence in schools is an emotional issue for many tax holders. More and more courts will hold schools responsible for issues of violence. This includes the issue of bullying.

40. Recommendation: Threat Assessments Today, more than ever, school officials are confronted with questions as to how they should handle student threats associated with "I'll kill you" comments, death threats and hit lists, murder plots, bomb plans, and related school safety and security concerns.  One idea is to use a threat assessment format whenever an issue arises.

41. How would this situation be handled in your school? A 5th grade boy named Michael was in a public park with his friend, Ethan. The two boys were throwing fire crackers on the side walk under the supervision of Ethan’s father. When the two boys were called to leave they stuffed the fire crackers in their jean pockets. Michael told Ethan not to forget and take the fire crackers to school because the firecrackers could blow up the school. At that moment a girl from their class happened to walk by and heard Michael say, “blow up the school”. This was the only part of the conversation she overheard.

42. How would this situation be handled in your school? Cont. The young lady went home and reported to her mother the part of the comment she overheard. The mother immediately called the principal. How should the principal handle this situation? What steps need to be taken?

43. The end result of the case Before school started the next morning, the principal phoned Michael’s mother at her work site to notify her that her son would be arrested. He did not speak with either of the boys before this phone call. Unable to leave her work, the mother in panic called her husband. The father went to the school to deal with the situation. The father persuaded the principal to listen to the facts of the situation and Michael was allowed to return to class.

44. The end result of the case, cont. Ethan’s father also came to the office to help deal with the situation. Ethan’s father happened to be the school guidance counselor. This case is a factual case happening at a private school in Lynchburg, VA. Schools and Educators need to learn how to ask real questions. Tort Liability charges can be leveled at any school or educator.

45. Questions to ask during a threat assessment. • What motivated the subject to make a threat or take an action? • What has the subject communicated concerning his or her intentions (to the target, friends, family, law enforcement, in a diary or journal)? • Has the subject shown an interest in: assassins, weapons, radical groups or ideas, mass murder, workplace violence, stalking? • Is there evidence that the subject has engaged in menacing, harassing, stalking, or attack related behavior? • Has the subject developed an attack idea or plan? • Has the subject approached, visited, or followed the target? (with or without a weapon) • Has the subject attempted to circumvent security? • Has the subject assaulted or attempted to assault target?

46. Does the subject have a history of mental illness involving hallucinations, delusions, or feelings of persecution with indications that the subject has acted on those beliefs? • How organized is the subject? Does the subject have the ability to plan and execute a violent act? • Is there evidence that the subject is experiencing desperation or despair? Has the subject experienced a recent loss? • Is the subject now or has the subject been suicidal? • Is the subject’s ‘story’ consistent with his or her actions? • Are those who know the subject concerned about the subject’s actions? • What factors in the subject’s life might increase or decrease the likelihood that the subject will attack a target?

47. Taking Positive Action • Be proactive, not reactive. • Know the limits of the law and liability. • Consult supervisors, lawyers, and professional organizations as appropriate. • Protect yourself.

48. Resources and References • Youth Violence Home Page • Find Law • Cornell Law School • Rutger’s School of Law • Lexis-Nexis • Keep Schools Safe • National Youth Violence Prevention Resource Center

49. Do our children deserve less than our best protection efforts?