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Deposition Designation Station

One wintry afternoon, a San Francisco-area attorney called me to ask if she could enlist my expertise for an assault and personal injury case involving a large high school where her teen-aged client had been viciously brutalized. After being assaulted, he forced himself to drive to an urgent care facility where the scope and extent of his injuries were staggering. I felt chill bumps as the attorney explained that her client lapsed in and out of consciousness while driving to seek medical aid. There was no doubt that her client had been a victim of a perpetrator whose intent was to inflict great bodily harm. The attack occurred in the student parking lot. The student-perpetrator arrived half an hour before his unsuspecting student-victim; and he waited patiently for him in a driving rain.

The attorney said her client and the perpetrator had had a number of prior confrontations, none of which had gone beyond hostile verbal exchanges. However, each confrontation showed identifiable signs of escalating beyond the heated words and hurled threats made publicly on the campus quad during lunch and between classes after passing bells. Each time, moreover, campus security guards had intervened, and the principal and other administrators had talked to the boys about their public displays of their animosity and the disruption it was causing. Scores of students were well aware of the boys' hostile relationship and were often witnesses to their loud and relentless verbal exchanges. Among the student body, rumors were rife of an impending fight between the boys.

Following the brutal assault in the student parking lot, the principal interviewed two witnesses to the assault, took their statements, yet later said that he lost them. Then he and his co-administrators said that no threats of violence or physical acts of violence occurred, and that the student-victim could easily have walked away to prevent such from occurring. Equally curious was the principal's inability to provide a satisfactory reason why the security guard, who was daily assigned the student parking lot to monitor and patrol, was absent from the lot during the attack; he was elsewhere on the campus. For a couple of years, the local police department had one of its deputies regularly deployed to the high school. Following the attack, he wrote up an incident report; however, like the principal, he mysteriously "lost" it afterwards.

Later that week, the principal summoned both boys to his office and informed them that they were being placed on suspension from school for being "mutual combatants." The principal's handling of the assault case and his disregarding abundant a priori signs that the assault itself was a foreseen event, were not supported by either California state law or case law handed down by the U.S. Supreme Court. Indeed, precedent cases of law place in a harsh and disapproving light the principal's errors and omissions. Controlling my ire at the irresponsibility and dereliction of the principal, I said "yes" when the attorney asked me to take the case as her Expert Witness. There are several issues (enumerated below) at work here, in this most unfortunate case. Yet there are other cases like it throughout the state. The court held this particular school district responsible for the specific physical injuries the victim-student suffered. School officials must recognize and accept their clear-cut and well-defined responsibilities under the law to prevent these kinds of campus hazards and their mandated duty to care for and protect their students.

1. The High School's Obligation to Protect Students and Prevent Harm
Courts have long recognized that teachers and school administrators must act to control and protect students-even in the absence of a formal rule. Immediate classroom and campus control of student conduct is conferred upon schools under the in loco parentis doctrine, which conduct is put in perspective in an old Wisconsin case:

While the principal or teacher in charge of a public school is subordinate to the school board or board of education of his district or city, and must enforce rules and regulations adopted by the board for the government of the school, and execute all its lawful orders in that behalf, he does not derive all his power and authority in the school and over his pupils from affirmative action of the board. He stands for the time being in loco parentis to his pupils, and because of that relation he must necessarily exercise authority over them in many things concerning which the board may have remained silent. In the school, as in the family, there exists on the part of the pupils the obligations of obedience to lawful commands, subordination, civil deportment, respect for the rights of other pupils and fidelity to duty. These obligations are inherent in any proper school system, and constitute, so to speak, the common law of the school. [State ex rel. Burpee v. Burton, 45 Wis. 150, 30 Am.Rep. 706 (1878) ]

The high school principal and his co-administrators failed their "in loco parentis" obligation by depriving the student parking lot, in which the assault and attack upon the victim-student took place, of a security guard whose presence, according to depositional testimony, was usually daily, regular, and habitual. Equally unacceptable was the principal's choosing to rationalize away the assault and battery as the conduct of "mutual combatants." The objective of the school's administrators ought not to have been to mitigate the severity of the perpetrator's assault and battery on his victim, or ignore [the facts of] its occurrence at all, but at the very least to exercise due diligence and proceed to find out what could have been done-pre- and post-altercation-in the best interests of the assaulted and injured student.

2. Deprivation of Due Process Rights
"The fundamental requisite of due process of law is the opportunity to be heard," Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783 (1914), a right that the student-victim should have been granted and a requirement that school administrators denied him. This right has "little reality or worth unless one is informed that the matter is pending and can choose for himself whether to...contest." Mullane v. Central Hanover Trust Co., supra, 339 U.S. at 314, 70 S.Ct. at 657. At the very least, therefore, students in jeopardy of being suspended and the consequential recinsion, loss or withdrawal of a protected property interest (e.g., berth on an athletic team, credits toward graduation, or merit qualifications) must be given some kind of notice and afforded some kind of hearing. "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." Baldwin v. Hale, 1 Wall. 223, 233 (1864).

Suspending the student-perpetrator and the student-victim, under the pretext of "mutual combat," was tantamount to (1) false arrest; (2) administrators perjuring their previous claims that no threats of violence or physical acts of violence occurred; and (3) deliberate indifference, under which the deprivation of due process rights certainly occurred. In Goss v. Lopez, the Supreme Court of the United States (1975, 419 U.s. 565, 95 S.Ct. 729) ruled that "Temporary suspension requires procedural due process." The principal attested that he interviewed witnesses; yet his admission that he failed to document and preserve their statements places certain doubt upon the fairness of the administrative actions he felt compelled to initiate against the student-victim. By establishing as law Education Code § 48900, the California State Legislature's intent has been, and is, to provide for suspensions and expulsions for acts of violence such as fighting, except in cases of self-defense. It must be noted that the student-victim is quoted in the case record as trying to avoid a fight because "I'm on probation." Unwilling to risk court difficulties by violating his probation, the victim feared to engage in even the allowable act of defending himself. In its denial to the victim of the Fourteenth Amendment protections of due process and, instead, imposing its defective suspension order upon him, the school further injured him.

3. Pre-Meditation and Lying in Wait
Indeed, the perpetrator's failure to change his mind and disengage from his desire to assault his victim-and instead, to wait outside in the pouring rain for him to appear-is strongly suggestive of the behavior of a perpetrator-student who had a well-formed and deadly plan in mind. Despite inclement weather, he was intent on biding his time and lying in wait to carry out his plan and, with a brutal discipline, see it through. Indeed, his vicious assault on the unsuspecting victim, and the manner and means with which he took total advantage of the hapless boy in the driving rain, has both undertones and overtones of criminal, malicious intent.

4. Duty to Expel
California Education Code § 48900 provides for the suspension and expulsion from school of a student who has "(a)(1) Caused, attempted to cause, or threatened to cause physical injury to another person; or (2) Willfully used force or violence upon the person of another, except in self-defense; (b) Possessed, sold, or otherwise furnished...any dangerous object."

The principal had a duty to expel the perpetrator. The case record made it clear and convincing that the perpetrator not only attempted to cause physical injury to another person, but actually succeeded in that attempt. Further, that he willfully used force or violence upon his victim is very clear: his resolve was reinforced by his well-conceived and previously-arranged plan. The perpetrator's throwing his victim upon or against the perpetrator's girlfriend's car-such that the car sustained bodily damage-rendered the car itself as the "dangerous object" that the perpetrator "possessed" and used against the victim.

5. Mandated Notification of Law Enforcement California Education Code § 48902 ("Notification of law enforcement authorities; liability for making report; failure to notify; penalty"), with language referencing California Penal Code 245, frankly define's the principal's reporting obligations when an assault has occurred. Education Code § 48902 must be viewed as an expression of the legislature's intent to notify law enforcement whenever a student has been assaulted, battered, and traumatized by a deadly force beating of the kind visited upon the student-victim by the student-perpetrator. This statute (Education Code § 48902) reads: "(a) The principal of a school or the principal's designee shall, prior to the suspension or expulsion of any pupil notify the appropriate law enforcement authorities of the county or city in which the school is situated, of any acts of the student which may violate § 245 of the Penal Code." California Penal Code 245 states:

245. (a) (1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

6. Preventive Detention
One U.S. Supreme Court decision has preventive detention as its purpose and upholds the right of a judge to detain a suspect until trial because the suspect is a danger to others or self. The Court found in Schall v. Martin (1984) that it was legal for a student to be detained for the protection of self and others. (104 S.Ct. 2403; 1984.)

California Penal Code § 628.2 provides that the principal of each school submit to the superintendent of his district a complete report of crimes committed on school grounds.

The principal failed to request the detainment of the student-perpetrator by the police officer assigned to the school (the principal could even have summoned other law enforcement) despite the perpetrator's expellable offense of assault and battery that rendered him a danger to the campus at large. Moreover, the principal's failure to exercise due diligence in the gathering of evidence, and his failure to forward any resultant reports to the superintendent of the school district, was both dereliction of duty and a violation of law.

7. Standard of Care and Duty to Protect In Hoff v. Vacaville Unified School District (1997) (68 Cal.Rptr. 2d 920), the Court concluded that the status of the victim made no difference and that the duty of supervision protects nonstudents as well as students.

The principal failed in his duty to protect the student-victim.

The standard of care imposed on school authorities in exercising their supervisorial responsibilities is the degree of care that a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances. Pirkle v. Oakdale Union School District (1953) (Sac. No. 6183. 40 Cal.2d 207.)

Having affirmed his knowledge about the incidents of heated verbal exchanges and shouting matches between the perpetrator and victim, the principal failed to take precautionary and preventive measures that his peers and professional colleagues in other school districts employ as standard procedures. These include but are not limited to: (1) "Safety Net Program" that functions like an in-school suspension program in which students have the opportunity to receive counseling, behavior monitoring, and coursework; (2) In-School Suspension Program: This is a tried-and-true disciplinary program used by school districts since the 1970's. It has more of an after-the-fact disciplinary component than "Safety Net," yet also allows for students to complete coursework and keep current academically; (3) Counseling: Principals, relying on "campus intelligence," provided by other students, have successfully taken at-risk students aside and talked frankly to them about the costs and consequences of fighting and breaking school rules; (4) Behavior Contracts: In tandem with either frank discussions or counseling about the student's infractions, the student is presented with a specific set of behavioral standards and conditions, tailor-made to fit his infractions. He agrees, in writing, to comply with these conditions and attests to having been advised of the consequences for violating the contract; and (5) Parent Conferences: Like the aforementioned counseling, this, when used, has often deterred negative behavior and/or prevented a crisis, when "campus intelligence" informed a principal that such might have occurred. Inasmuch as the principal failed to document his post-altercation interviews of witnesses, it is reasonable to question whether and how he availed himself of prevention and intervention strategies, of the kind mentioned above, or others at his disposal.

8. Lack of or Ineffective Supervision
Either a total lack of supervision or ineffective supervision may constitute deficient ordinary care on the part of those responsible for student supervision. (Dailey v. Los Angeles Unified School District supra.) In the Dailey case, a student fractured his skull when he fell when several boys started to "slap box" while walking to the gymnasium during the lunch hour. The boy died and his parents sued, alleging negligent supervision. The evidence at trial revealed that the head of the Physical Education Department had not assigned a staff member to supervising duty. The "slap boxing" contest had attracted some 30 spectators but the teachers had failed to hear the noise due to "talking on the telephone," "working on lesson plans" and "eating lunch." The Court held the school district liable for its employees' negligence.

By failing to act on reasonable suspicion (campus rumor) that an altercation between the perpetrator and victim might occur, and by downgrading the level of severity of the major and severe assault upon the victim, the principal and other administrators at the high school also failed to exercise total supervision, which fact predicated a dangerously negligent situation in the student parking lot.

In Lucas v. Fresno Unified School District (1993) 14 Cal. App. 4th 866, a 10-year old student watched a group of students throwing dirt clods at one another during recess. He saw approximately 100 clods thrown before he joined in the fun. He had thrown only two clods when, unfortunately, he was hit in the eye with a clod. The parents sued and the district responded by claiming "assumption of risk" as a defense, that is, the child assumed the risk when he decided to play the game. The Court rejected the defense and decided the case in the pupil's favor based on the duty to supervise. The Court stated:

The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties....Supervision during recess and lunch periods is required in part, so that may be maintained and student conduct regulated. Such regulation is necessary precisely because of the commonly known tendency of students to engage in aggressive and impulsive behavior which exposes them and their peers to the risk of serious physical harm.

The high school's administrators' assertion that the victim had opportunities to avoid his perpetrator yet chose none of them, is the same sort of indefensible and court-rejected "assumption of risk" claim noted above.

It is a new day in public school administration, and school administrators must recognize that, in our post-Columbine and post-9/11 climates, parents are holding school districts directly responsible for ensuring the perpetual safe-keeping and welfare of their children. In the foregoing case, the victim-student and his mother successfully sued the school district for a seven-figure sum. In these parents' minds, no damage award of any size could ever compensate them for the school-based violent deaths of or injuries to their children. Television news reporters, amid horrifying film footage, have commented on the tragic irony of children carrying lunch bags to school only to be later carried away themselves in body bags. Many are the school districts and school administrators who belatedly realize that negligence, indifference, breach of care, and dereliction of duty precipitate or catalyze a dangerous campus environment. Sadly, they will find themselves virtually defenseless against, and certainly shame-faced before, aggrieved and injured plaintiffs suing them for financial damages in a court of law. Damage awards are frequently substantial in these kinds of cases. The meaning for school officials should be crystal clear: Errors and omissions in school safety can cost their school districts staggering sums and derail their own careers!

Dr. James E. Shaw teaches university doctoral students who are studying for their Psy.D. degrees and state licensing in Psychology. He is a member of the Panel of Experts of the Los Angeles Superior Court, and also serves on the faculty of the United States Court Public Defender Training Branch. He is an Expert Witness who has a fairly large media profile on NBC, CNN, CBS, ABC, and FOX News, as a result of his having been a public school administrator and also his nationally-acclaimed book, Jack and Jill, Why They Kill, used in colleges and universities nationwide. His expertise is, and his Civil Court testimony has been, in School Safety; Juvenile Violence; Personal Injury/Wrongful Death; and Mandated Reporting of Child Abuse. He works with lawyers nationwide. He was one of the keynote speakers at the Columbine High School memorial ceremonies honoring the slain students. He is also the author of a State of California-approved middle- and high-school violence prevention and education curriculum, B.R.A.V.E. ("Be Resilient Avoid Violence Everywhere"). In addition, he provides lesson plans for the internationally-renowned teacher's website,

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