Schools, including public, private, and charter K-12 schools, and colleges and universities, have a responsibility to protect students from physical and emotional harm. Harm that creates a climate of fear can interfere with a student's education, leading to a range of outcomes from failing courses to, in the worst case, suicide. Properly identifying, investigating, and handling school bullying, harassment, and intimidation claims can help school administrators protect children and avoid costly litigation.
Parents send their children to school expecting that their kids will be safe. The parents trust that the school's staff will act in their place and look out for their children's welfare in the same way they would. The presence of security guards, school police, or resource officers at the school may even strengthen their trust, but this can be a false sense of safety. Just because guards and school police officers wear a uniform does not always mean additional protection for students. Reviewing and assessing the potential for harm to students and others on school grounds and at school-sponsored events requires careful consideration and proactive initiative to keep students safe, even when the presence of a security guard or school police officer may provide a veneer of safety. Inadequately screening, training, and supervising security guards and school police officers; failing to provide guards and officers with clear instructions for handling special circumstances known to the school; and inappropriately delegating the responsibility for keeping children safe can all be linked to student injury or death.
Statistically, it's safer to transport children to and from school by school bus than by car, according to the National Highway Traffic Safety Association. But accidents and other bus-related incidents that result in student injury and negligence are frequently causes for litigation. Leaving students on the bus when it arrives at school, sexual abuse of students by the bus driver, bus aide, or other students, and injuries caused by student misbehavior are just a few situations that might result in liability for a school district or contracted private bus company.
A school has a responsibility to protect students from harm. Will arming teachers or placing armed security guards and police in the building make our schools safer and prevent school shootings? There is a great deal of debate as to whether more or different forms of attention to school safety and security will lead to a reduction in school killings, but these ideas don't seem to be showing positive results. Perhaps arming school staff not with guns but with the training needed to relate to students in a positive way will go a long way toward preventing some students from carrying out their deadliest ideas resulting in school shootings.
When risk is managed, injury, student death, and resulting litigation are less likely to occur. All too frequently, it is only after a tragedy that officials look back and ask, "How could this have been avoided?" Risk management is a far-reaching topic, but when focused on the professional standard of care in educational and other child and youth-serving organizations, it comes down to protecting the safety of participants in the care and custody of a school or other organization.
Standard of care is a general expression of what constitutes care in professions such as medicine, nursing, education, or child care administration. In schools and other agencies responsible for the care and supervision of children, the professional standard of care is the ethical or legal responsibility of a professional to exercise the level of care, diligence, and skill that other professionals in the same discipline would apply in the same or similar circumstances. This, coupled with statutory requirements and case law, defines the care that an educational professional is responsible for providing to children which includes protection from child sexual abuse.
Title IX, the law that prohibits discrimination on the basis of gender in public education programs, is also relevant in application of professional standards within the context of private school sexual abuse and harassment and their response to alleged incidents. Every school that accepts federal funding for any program or service it provides must adhere to Title IX. Most public schools, including charter schools and specialized education service commissions, accept federal assistance and, therefore, must comply with Title IX. Compliance requirements include, among other things, the development of policies prohibiting sexual harassment and assault, prompt and thorough investigation of complaints, training of staff, and the assignment of a person who oversees implementation of the law.
All Sawyer wanted to do was to protect himself from bullies and the mean kids in middle school. He wrote to his guidance counselor, "I would like to let you know that the bullying has increased. I would like to figure out some coping mechanisms to deal with these situations, and I would just like to put this on file so if something happens again, we can show that there was past bullying situations."
Parents 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.
Under Title IX, for a school to be held liable for denying an educational opportunity to a student who was sexually harassed or abused, the court must be convinced that the school had actual notice of prohibited behavior and that it acted deliberately indifferent to it. Often, it is a challenge to define what "actual notice" is and whether the school had such notice. If the school has no information on which to act to end harassment or abuse, it cannot be determined to be indifferent. In some of the cases we have worked on, however, there has been some level of notice that, if investigated, would have confirmed that harassment or abuse was taking place. Such notice could be a teacher hearing a rumor about a sexual relationship between another teacher and a student, a staff member watching a student speak in a sexually inappropriate way to another student, or the school receiving notice that that an off-campus sexual violence event is creating retaliation at school. Examples such as these may constitute actual notice, depending on the circumstances.