Sexual behaviors in young children can range from exploratory and normal to abusive and violent. Under federal law, the Title IX of the Education Amendments of 1972, schools have an obligation to protect children from inappropriate sexual behavior, including child-on-child sexual abuse. This obligation can be complicated when the allegation involves five-and-six-year-old children, for whom touching body parts and viewing private areas may be considered normal sexual behavior. The issue faced by school administrators and attorneys who litigate claims of child-on-child sexual abuse involving young children is whether touching falls under normative or problematic child sexual behavior.
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.
Whenever children are involved in events on school premises, there is always the possibility of school district liability for incidents that happen on school grounds or at school-sponsored events. This foreseeability gives rise to a duty to take reasonable steps to prevent a child from being harmed. Public school districts may find themselves liable for injury - not only for those suffered by their own students, but also for those incurred by children who are invited onto school grounds, who attend separate programs on school grounds, and even those who are considered trespassers.
Schools, including K-12 schools, colleges, and universities, have a responsibility to protect their students from harm. Harm includes the inability to benefit fully from education as a result of being in a hostile school environment. The politically motivated rhetoric and actions seen in schools during and after the presidential campaign can create a hostile school environment for which schools can be held responsible.
Schools, after-school programs, summer camps, sunday schools, daycares and other agencies that supervise children are responsible for student safety of children in their care. Failing to apply the same attention to ensuring that non-licensed individuals, such as volunteers, meet the same standards as teachers and other paid staff can place students - and ultimately a school, district, or other agency - at risk. When the history of a volunteer or chaperone on an overnight school trip includes something that would raise a red flag but the school is unaware of it, school officials are not able to make an informed decision about whether or not that person should be allowed to interact with children.
Protection of the health, safety, and well-being of children who participate in recreational activities at a summer camp, summer school program, or community and private recreation centers should be the standard operating procedure of all those who provide these services. The standard of care owed to children who participate in organized or sponsored recreational activities such as sports, dance, swimming, rock climbing and variety of other activities at a camp or other agency must be consistent with professional standards in the field. Ingraining standardized practices and responsible planning and supervision into the work habits of all employees will help to protect the employees and the agency from activity injury liability and costly litigation.
Title IX of the Education Amendments of 1972 is a federal civil rights law that prohibits discrimination on the basis of sex in any education program, including in colleges and universities, if those programs or activities associated with the institution receive federal funding. Under Title IX, sex discrimination includes sexual harassment, sexual battery, sexual assault, rape and other sexual violence at school, college or university campuses. Any behavior that disrupts a student's access to an educational opportunity or benefit constitutes a violation of Title IX. Recent media coverage has brought to light the controversy over the six-month sentence for a former Stanford University student for the rape of a student on campus. There has been outrage over the sentence, and that outrage might be justified, given schools' responsibilities in similar cases.
Some of our most vulnerable children are relegated to a life away from parents, family, and their school to live where other adults take the place of their parents and are responsible for their custody or care - legally defined as in loco parentis. This occurs when children are placed in residential centers for the treatment of mental illness, schools for the deaf and blind, or similar facilities for children who require extensive medical care and management.
Nationwide, 7.6 million students participate in interscholastic athletics, according to U.S. News and World Report. Keeping them safe is critically important to avoid school liability and sports injury lawsuits. And when sports injury occurs, schools may be found responsible if they failed to take reasonable precautions and supervision of students in order to prevent sports injury. Parents send their children to school with the implicit expectation that schools will do whatever is necessary to keep them safe whether in the classroom or on the football field.
As difficult as it might be to accept and understand, abuse of children is occurring at an alarming rate in our nation's schools, daycare centers, camps, and other institutions. Even with state laws that require child abuse reporting and institutional policies that address sexual abuse prevention, identification, and reporting, abuse is not going away. More civil lawsuits are filed with each passing year, and schools and other organizations are not always appropriately responding to this epidemic.
In the wake of recent incidences of gun violence, school safety and security has become an increasingly pressing concern in the United States and Canada. Schools, summer camps, daycare centers, and other agencies charged with the safety of children have a duty to protect them, and their ability to do so depends on solid policies, training, and appropriate response to security threats. Laws, regulations, and internal policies designed to shield children from harm may be developed proactively in response to a risk assessment or reactively in response to an event that caused injury to a child. Both are valid options in today's climate of terroristic threats to school safety and security. Inaction is not. Schools and other child-centered programs must consider and develop appropriate responses to this new dynamic.
Risk of personal injury to children is reduced when activities, facilities, equipment, personnel, and supervision are brought into compliance with "standards." There are several sources of standards. Some standards are mandated by law through statutes. Additional standards are set forth by oversight authorities, such as the American Academy of Pediatrics, the American Camping Association, the National Federation of High School Athletic Associations, or the U.S. Consumer Product Safety Commission, to name a few. Other standards involve the customary professional practice of those conducting such activities. Ignorance of such standards is no excuse for failing to comply and schools and agencies with children have a duty to be proactive about implementing standards in order to prevent student injury.
Many school-aged children have medical conditions about which teachers, nurses, and others who are responsible for their health, safety, and well-being should know. If not addressed in the right way by administrators, teachers, or other officials, these conditions can result in a catastrophic incident, not to mention costly litigation. A student with a known heart defect, for instance, is vulnerable in a physical education class if the teacher is not informed of the child's condition and does not institute appropriate precautions or prepared to respond in a medical emergency. If cafeteria personnel in a daycare center know that a child has a peanut allergy but fail to supervise the child appropriately, the child can go into shock if she is allowed to sit at a table where another student is eating peanut butter. In situations like these, if a plan for the child's care was either not in place or developed but not communicated to the staff, the child might suffer irreparable harm - or even die.
In my profession as an education administration and student supervision expert, I have observed that residential schools and boarding schools present a higher duty than day schools to supervise children and a greater opportunity for the school to be found liable for child abuse and injury. When children are living and learning in a program 24/7, staff must demonstrate not only a professional standard of care, but also a reasonable and prudent parent standard of care. Although related, these standards are distinct and must be appropriately and reasonably applied in a setting where staff serves as surrogate parents and others serve as teachers, counselors, and psychologists. When a child is sexually assaulted, administered unnecessary corporal punishment, or is injured or dies in a residential school, both of these standards need to be addressed.
The first responsibility of educators and those who supervise children in residential programs, day care centers, before- and after-school programs, and other settings is to make sure that these programs foster learning and care in a safe environment. Asking third graders to move a cart with a heavy TV on top, inadequate staff instruction in safe techniques to quell disruptive students, not carefully checking that the door to the pool closes and locks the way it is supposed to, excessive discipline, playground aides talking among themselves but failing to pay attention to the children, not providing a sufficient number of nighttime supervisors in a dormitory, and a school police officer not trained on how to interact with children with behavioral disorders - any of these circumstances can lead to student injury at school or death of a child and high litigation costs. The overriding professional standard of care is to protect children's health, safety, and well-being. Under this umbrella fall the development and implementation of policies, adequate staff training, and a level of supervision reasonably calculated to keep children safe.
In settings where children are supervised by adults, we often think about traditional settings, such as schools and summer camps. But these are not the only places where children participate in activities that require adult supervision and which can result in child injury cases. Some nontraditional settings include resort and vacation day care programs, community recreation centers, church-sponsored events, and Boy and Girl Scout activities, among others.
For schools, summer camps, and day care centers, one of the key functions of student supervision is to identify dangerous conditions and then either stop the activity or warn of the danger. The supervisor must take appropriate action for the protection of the children. Duty to warn contemplates both having knowledge of danger (actual or constructive notice) and having time to communicate it. Field trip injuries are very common and there is an equal duty to protect when children are off campus but still under school supervision, such as when children are on a school-sponsored trip. Excursions off school property present special challenges. Careful planning ahead of the trip, knowing about potential safety hazards, and creating a plan to avoid or mitigate them can help to protect a child from field trip injuries and a school from liability lawsuits.
Keeping children safe in schools, preschool and daycare programs, summer camps, on playgrounds, and other locations is a primary responsibility of those who administer such programs. When a child becomes injured and the claim is negligent supervision, a school or other agency will have a greater chance of prevailing when it has clear policies and enforces them. In school premises liability lawsuits plaintiffs are more likely to prevail when a facility fails to maintain its campus and equipment, does not have a regular inspection plan, and does not instruct and supervise students in the safe and appropriate use of equipment.
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.
When child abuse is alleged to have taken place in a school, daycare facility, preschool program, summer camp, or other entity responsible for the supervision and safety of children, there is always the possibility that the entity may be liable if negligence can be established. Schools and other entities with a duty to protect children often become embroiled in lawsuits alleging that breach of this duty was a proximate cause of a child's injuries. Though laws vary, states adopt a broad definition of child abuse, including physical and emotional abuse, neglect and abandonment, incest, sexual molestation, and sexual exploitation. Typically, a child abuse report must be made to a designated state agency responsible for child protective services when a person, in his or her official capacity, suspects or has reason to believe that a child has been abused or neglected, or knows that a child has been subjected to conditions that could reasonably be expected to result in harm.
School coaches have a duty to protect athletes from harm, including emotional or physical harm that may result from locker room hazing. High school hazing in athletics has many beginnings - the most prominent being an attitude of superiority among senior athletes and the belief that a weaker or younger athlete must be subjected to harassment to "make the grade" or to be "good enough" to be on the team. This mentality, if left unchecked and if students are allowed to participate in hazing behaviors, eventually can result in even more serious misconduct, such as sexual harassment and serious personal injury.
When a student personal injury in a public school triggers litigation, plaintiff and defendant attorneys must address the concept of governmental immunity. In general, governmental immunity shields public schools from tort litigation and liability. Governmental immunity is not universally applicable, however, depending on how the facts of a specific case accord with state or provincial laws. This article is about how governmental immunity in public school cases might be pierced and how schools can determine whether governmental immunity applies in school liability cases.
Millions of children participate in programs operated by daycare centers, nursery schools, and camps across the United States and Canada. The most important aspect of childcare is the safety and supervision of children. When a teacher, recreation leader, camp counselor, or other supervisor is engaged in activities involving young children, there is a duty to protect the child from physical harm, sexual abuse, and other forms of personal injury. A breach of duty to protect the health, safety, and welfare of a child that leads to injury may result in daycare negligence lawsuits.
In 2011, the U.S. Department of Education Office for Civil Rights (OCR) issued a "Dear Colleague" letter to college and university administrators about implementation of Title IX of the Education Amendments of 1972 in regards to campus sexual assault cases. Title IX prohibits discrimination on the basis of sex in education programs or activities in schools that receive federal funding. The letter explains that schools are required to develop and distribute policies regarding sexual harassment, designate a Title IX coordinator to oversee the school's duties, train staff and students in sexual harassment and violence issues, and establish an investigation procedure and an adjudication process. The letter did not articulate specific procedural safeguards, rules for the examination of evidence, or guidelines for the conduct of adjudication or hearing processes for cases of campus sexual violence.
Harassment in schools can occur when a student is discriminated against on the basis of national origin, race, religion, disability, sexual orientation, gender, or other identifiable class. A school district may be found liable for harassment if there is no strong, widely disseminated, and consistently enforced policy prohibiting it and no effective complaint procedure is in place. Schools can also be held responsible for the consequences stemming from a failure to take immediate, appropriate steps to respond to a complaint about harassment or bullying, terminate it, and discipline the offending party, be it an employee or another student. When a school has knowledge that a hostile environment exists but does not act on this knowledge, it can be viewed as giving tacit approval to this activity. In such cases, school districts have been found liable for enabling hostile school environment that prevents students from learning.
The relationship between private schools and their students is very different than the one that exists when a student is in a public school. In private schools, the relationship is contractual in nature. The contract is expressed or implied in written documents, such as promotional literature, student applications, and student and staff handbooks. By contrast, the relationship between public schools and students is governed by federal and state statues, such as the Individuals with Disabilities Education Act and Title IX. In public schools, students are afforded constitutional, substantive, and procedural protections that are generally not applicable in a private school. In private schools, academic and conduct issues involving students raise contractual, as opposed to constitutional, issues.
Injuries are a part of intramural and extramural sports and recreation programs. According to the National Federation of State High School Associations, high school athletes account for 2 million injuries, 500,000 doctor visits, and 30,000 hospitalizations each year. There's a certain level of risk assumed by a child who participates in any physical activity, but the school or agency has a general duty to protect children from harm to avoid school sports injury lawsuits. Dereliction of that duty may result in any number of situations that a jury may consider negligent, such as failure to develop and implement appropriate policies and procedures for supervision, poor maintenance of equipment, or inadequate instruction of children about the dangers inherent in their activity.
Student injury or death often brings negative attention to a school. In fact, the first thing often reported publicly is an injured party's claim that an incident stemmed from the negligence or misconduct of a staff member responsible for a child's safety - a teacher, coach, or bus driver, for instance. But a student injury or death can result from any number of situations. These might range from school-related action or inaction, such as a breach of school security or failure to follow a student's medical orders, to a student's own actions and choices triggering a contributory negligence defense.
For schools, daycare centers, after-school programs, and camps, children with disabilities often present significant supervisory challenges. If these children's needs are not adequately addressed and a child is seriously injured or killed, negligent supervision may be viewed as a proximate cause. But what constitutes reasonable supervision of children with behavioral or physical disabilities? It depends on the unique needs of the student and a school's standards for protecting that student from harm.
This article reviews recent legislation and how that legislation effects compliance with student IEPs in regards to the equipment that can improve a student's ability to learn and interact with teachers, family, and friends. The article details the recommendation of devices and the school's responsibility in regards to their procurement, usage, and maintenance.
Recently, a Seattle student with cerebral palsy was awarded $300,000 in damages from her school after years of harassment by another student was allowed to take place. Her harasser regularly called her names, blocked her wheelchair's path with furniture and manipulated her chair's electronic controls so it rammed into walls. It was not until the harasser caused his target serious physical injury and property damage that school officials responded formatively to his hostility by suspending him for three days.
Abstract: This special paper introduces the Individuals with Disabilities Education Act, describes the school district's obligation to advocate for students with disabilities, reviews student rights created by the law, defines key terms, and takes the reader, step by step, through the procedural protections provided by the regulations.
Abstract: Examples of consultations serve as an illustration of how a consulting education expert can assist lawyers who are working on school and education related cases. One example deals with a special education dispute involving inclusion and the other deals with liability for student injury and a settlement of $850,000.
The tragic realities of the school killings in Littleton, Colorado, and similar instances of violence involving today's youth, have educators, policymakers and communities searching for causes as well as methods of prevention. Hit lists, posted on Internet sites and plans made by high school students to "get even" when they are teased are symptoms of what we already know: Bullying, teasing and discrimination are big problems for American children.
Our nation's schools pay millions of dollars annually in damages to school children injured in class, sexually assaulted by teachers, and harassed by fellow students. Unnecessary risks in schools can be controlled to protect the safety of students, faculty and support staffs and to eliminate costly litigation and settlements.
Even the most amicable custody arrangements can sour over school choice. As more people move about, the issue of where their children will attend school, and what that school offers compared to their current situation, is becoming more significant in family law. This article examines ways an education expert can assist with objective evaluations of school programs.
The educator as a consulting and testifying expert has become one of the most important tools that an lawyer can use in the dispute resolution process involving schools. When the consultant becomes an expert witness the relationship changes. This article explains how the expert educator assesses merits of a case, and provides consultation to lawyers who are working on education and school related cases.
According to a new national survey, there has been a sharp drop in the percentage of America's children being physically bullied or beaten up by their peers.
Assigning fault and responsibility in a lawsuit involving a school is rarely clear cut.
Eyewitnesses to the event may only tell what they saw, heard, felt or smelled; they are not allowed to tell what others have said (hearsay) or say what they think of the case.
The first wave of inclusion has crashed upon the shores of our schools. Now, educators and parents are looking toward the horizon awaiting the next wave to see what it brings.
Now that the administrative law judge ordered Heather into the regular fourth-grade classroom, none of the teachers want to have her, Maybe we shouldn't have filed for a due process hearing against the school. I think it backfired on us.
Schools seem to have little control over the financial and human resources that are dedicated to special education. How can accountability be achieved?
This article explores common situations regarding sexual harassment in the school setting. It also discusses exploitation of sexual power either by teachers or by students in an inappropriate relationship. Schools and its employees have a duty to train their students on their sexual harassment policies and to report any inappropriate behavior.
Cyberbullying is one of the fastest-growing problems facing families and the people responsible for protecting our children: school administrators, lawmakers and law enforcement officials. Cyberbullying is such a new frontier, the laws that define and police it are, in many places, weak to nonexistent. Its "sudden" pervasiveness and severity is now shocking people into action as evidenced by the rash of suicides making national news and the resulting public outcry.
The safety of children is of the utmost concern to school board members, administrators, and teachers. Accidents do happen, of course, but you must do everything you can to make sure that the students in your care are not hurt.
People who are passionate about school safety have a vision--a vision we share with concerned parents, educators, and especially with the kids we're obliged to protect.
All 15-year-old Phoebe Prince wanted was to be liked. But after moving from Ireland to Massachusetts, it wasn't long before Phoebe endured bullying from the "mean girls" at school.
It is commonly accepted that school liability has increased over the past several years, especially in the area of tort liability.