by William L. Bainbridge, Ph.D.
William R. Mason, Jr.
The United States has become the most litigious nation in the world, and our Canadian neighbors are not far behind. The schools have been the focal point of so much litigation that education conventions now have corollary groups of attorneys meeting simultaneously.
We've previously discussed the use of school evaluations in child custody litigation ("Schools Matter When It's Mom v. Dad", S&C, June 1993). Our association with attorneys has led to new and interesting roles and responsibilities. Combining our experiences as school personnel administrators with the resources of the SchoolMatch databases; we have found ourselves helping either plaintiff or defense attorneys establish standards of care in cases involving school personnel, school accidents and school accountability. When litigation strikes a school, judges and juries seem to be extremely interested in comparing policies and procedures of nearby schools or ones which are demographically similar.
Increasingly, parents are holding schools accountable for the safety and well being of their children. Cases like those described below require attention to more than school quality (although issues related to quality are certainly factors in any school litigation):
- A school principal permitted an elementary school student to be taken off the school grounds by a "friend" without parental permission. The child was murdered and the parents sued the school system. This case is still in the courts.
- A special education student was sexually molested on numerous occasions by the school custodian. The employee is now in prison and the parents are suing the school system.
- A fifth grade student was seriously injured on a field trip when he was sent on an unsupervised science mission to explore an area and report back to the group. The child slipped and fell off a cliff. This case is still in the courts.
- A male teacher previously convicted of child molestation in one school system was employed by a second school system without a reference check. Molestation occurred again, and the teacher was convicted. The parents are suing the school system.
- A sixth grade student was punched and seriously injured during recess on a sparsely supervised playground by another student who had a long history of injuring others in fights. The parents of the injured youngster are suing the school system.
- A first grade student who had been told by school officials to wait for his mother after school hours in front of the school, walked home alone and was struck by a car while crossing a highway. He was seriously injured and his parents are suing the school system.
- Numerous students and parents reported acts of sexual harassment towards female students on the part of a male physical education teacher. The teacher was reassigned as an attendance officer where he was able to continue harassment in his office and at the students' homes behind closed doors. For a three-year period the harassment continued and the school system failed to supervise and/or discipline the teacher. School administrators also failed to report the incidents to proper authorities. This case was settled out of court.
As suggested by the situations reported above, when evaluating the role and responsibility of a school system in standards of care litigation, a number of important factors involving school policies, regulations and staff must be considered:
- Is school policy sound, based on good judgment and consistent with state or national standards where they apply?
- Was the school policy communicated clearly to all staff, administrators, other personnel and students when appropriate?
- Did the school comply with its own stated policy?
- Is school policy consistent with that of comparable schools?
- Did the school comply with all the relevant local, state and federal laws and regulations?
- Were basic safety rules and guidelines followed?
- Were personnel properly selected, trained and supervised?
Our recent experiences as litigation consultants lead to the conclusion that the cautions recommended by Attorney John H. Dise, Jr. in his frequent School and College columns on risk management are worth careful consideration. The old cliche, "an ounce of prevention is worth a pound of cure," seems particularly appropriate.
Bainbridge and Mason are principals in SchoolMatch, a Columbus, OH, research firm assisting corporations with school data and consulting services. Mason has twice served as President of the Ohio Association of School Personnel Administrators.