Because of social distancing, classrooms and schoolbuses can only be filled to one-fourth of their capacities. This constraint alone requires that a broad range of dramatic changes be made in order for our children to return to physical school without placing out entire population at greater risk than we already are.
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.
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.
On March 22 the U.S. Supreme Court issued an 8-0 opinion in the case Endrew F. v. Douglas County School District, ruling in favor of the parents of a student with autism spectrum disorder who had charged that the district did not meet the requirements of the Individuals with Disabilities Education Act (IDEA. The parents argued that their child did not receive a free, appropriate public education (FAPE) that was mandated by Congress.
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.