Caution, Litigation May Lie Ahead
By: William R. Mason, Jr.
Our experience as school administrators, educational consultants, and experts in a variety of school related litigation matters brings us to the sad realization that some school officials simply fail to practice effective management skills which can result in placing students in harms way. Such behavior can also result in unwanted and undesirable litigation.
Parents send their children to school believing they will be safe and well supervised, and expect that effective learning will be the end result. These are reasonable parental and student expectations. Our recent experiences as litigation consultants often make us question whether some schools are fulfilling those expectations. Cases like those described below, all taken from our direct experiences working with defense or plaintiff attorneys, behoove school officials to alert, inform, train, and prepare their staff for the litigious world in which they work. Such actions are particularly important when it comes to school injury accidents and sexual harassment issues.
The following cautions and actual examples are shared in an effort to help make schools safer places for students and staff and, in turn, improve the learning environment:
- Field trips require extensive planning and ample supervision to protect students from hazardous conditions and potential accidents. Students on a field trip to a ravine had too few supervisors and those present were spread too far apart to keep students within their sight. A student slipped off a wet cliff falling thirty feet breaking ankle, shoulder, and arm bones. The school district was sued for damages and the plaintiff won a large court award.
- Reasonable care of students at school includes before school entry and after school dismissal procedures and supervision. A school which does not practice the procedures it outlines in its Student Handbook leaves itself open for liability issues. A child who, instead of walking home at dismissal time, waits with the principal's knowledge for his mother to pick him up, is entitled to be supervised. School officials often are held liable if the child goes home with someone else, is picked up by a stranger, or leaves the premises and crosses intersections after safety personnel have been dispersed.
- Playgrounds are perfect places for injury accidents. The US Product Safety Commission has specifications for playground equipment as well as protective ground surfacing. School officials need to make certain both playground equipment and ground surfaces meet or exceed the US Consumer Product Safety Commission's standards. Equipment that is too high, poorly maintained, or judged to be unsafe along with asphalt, packed dirt and concrete surfaces underneath playground equipment are frequent causes of injuries. In addition, the fact that many playground injuries also involve supervisory issues creates grave safety concerns for schools.
- Fights between/among students at school are on the rise at all age levels. School administrators often claim that student conflict is unforeseeable. However, seldom do fights occur in full view of a supervising school official. Because there is no substitute for effective supervision, school officials are encouraged to organize staff to maximize supervision of students. Failure to supervise is often the reason injuries, fights, harassment and other undesirable events occur at school.
- When a physician places restrictions upon an athlete's participation, the coach or athletic trainer should determine specifically what activities are permissible, how intensely the activity can be conducted, and for what duration of time. To deviate from a physician's recommendation or restrictions places a great deal of liability upon the school, administrators and coach. We have served in cases where students and athletes have been injured or died because school personnel failed to heed a medical doctor's recommendation.
- When protective crash mats on a gymnasium floor beneath a piece of physical education apparatus separate, instructors must make certain to re-arrange mats to cover the entire fall zone. For most tumbling activities, a trained adult spotter is also recommended. We have served in a number of cases where non-existent padding, insufficient padding, or sliding padding has contributed to an injury accident. Also problematic has been the absence of a trained adult spotter strategically positioned to protect students. To disregard safety provisions simply because no injuries have occurred is like playing Russian roulette.
- Gymnasium padding needs to be in place anywhere a human body can contact an immovable object. Walls behind backboards, floors under pegboards, and bleachers near court lines, are all impact areas requiring padding. The placement of a mat is no assurance an area is injury free or safe. Thick foam surfaces may be more appropriate than a mat in some situations. Where injuries commonly occur is where protection needs to be extended. Failure to do so invites serious injuries and subsequent lawsuits.
Sexual Harassment Issues
- When an elementary school male assistant principal sexually abused a student at school during the evening hours while serving as a Boy Scout leader, the school system reassigned the administrator to a teaching position without taking any other disciplinary action or even placing a reprimand in the employee's personnel file. The school system left itself open to litigation and failed to offer assistance to the abused student.
- An experienced male teacher was employed for an elementary school "emergency opening" without a review of his previous employment record. He was dismissed from the former school for allegations of sexual impropriety. In the new school the teacher admitted to having sex with a student during the school day. The teacher's deviant behavior could have been identified if a reference check had been conducted with the previous school prior to his employment.
- A male elementary school physical education teacher improperly touched a number of his female students in class and was transferred to a junior high school where the same allegations resurfaced. Next he was transferred to the high school with identical results. Finally, the administration placed him in the position of attendance officer, provided him with an office, and enabled the man to conduct home visits. The staff member's deviant behavior continued. Had administrators tackled this situation as soon as it became apparent, the lives of numerous students could have been spared from sexual harassment.
- A male teacher with a long record of sexual harassment in one school district was employed by another district without a previous employment check because "the applicant was well known" locally. When the teacher's previous employment records were anonymously received by the new employer, the records included documented acts of sexual impropriety. A secretary was asked to "keep an eye on the new teacher." After the teacher sexually harassed a female student in the new school he was asked to resign. However, the teacher was provided with two satisfactory employment reference letters in return for his resignation. Obviously, there were many red flags in this case. School officials can no longer abdicate their duty to remove pedophiles and other undesirable people from education.
- School personnel observed a male teacher leaving campus on numerous occasions and working at school behind closed doors with a student educational aide assigned to assist him. Even though school personnel were aware of the situation, no staff or student monitoring system was in place and no one checked on the teacher's whereabouts during the school day. Ultimately, the student experienced a nervous breakdown and the teacher's sexual harassment of her was revealed. School administrators have a responsibility to supervise staff and take action when suspicions arise.
- In spite of numerous parent reports of sexual harassment on the part of a staff member, the building principal merely recommended non-renewal of this limited contract teacher. The principal failed to make any notation in the teacher's personnel file or report the suspected abuse to Children's Services as required by law. The teacher was free to make a teaching application anywhere in that state without fear of being exposed. He obtained another job and harassed again. Unfortunately, the reluctant principal lost his job over his failure to note the matter in the teacher's personnel file and failure to report this harassment to Children's Services.
- In spite of numerous citings and reports by community members and even a local police officer of suspected sexual harassment, a very popular and successful male girls varsity basketball coach continued to sexually harass a student on his team. The coach was never approached, supervised or removed from duty even after the player shared her secret with an adult. Ultimately it was found the coach had a long history of having affairs over the years with girls on his basketball team. His resulting arrest divided the small community and embarrassed the school system. This entire perplexing situation could have been quelled early by decisive action on the part of school administrators.
- A first year teacher was placed in a basement classroom away from other teachers where he sodomized an elementary school student after school on numerous occasions. Even though this new teacher was at school alone with the student after school hours, no supervision was conducted. It was only after the student attempted to commit suicide that the teacher's behavior was questioned. Effective supervision of this new teacher could have identified his deviant practice and saved the student from emotional strife and life long scars.
- A male school custodian's supervisor became aware that peepholes had been bored into the wall between the custodian's closet and the girl's restroom. The supervisor chose to do nothing. The custodian was also knowledgeable about the schedule of a special education female student and arranged to meet her throughout the day where sexual encounters occurred in various custodial closets throughout the building. No system was in place for monitoring students or staff and no system existed for students to report such abuse. Had the peepholes been reported to school administrators, a special education child's sexual encounter with a custodian may have been prevented.
- A white male teacher whose daughter was dating a black male student grabbed the black student at school and threatened the student would be kicked off the football team if he didn't stop seeing his daughter. The dating continued. The teacher requested the black student be transferred out of his classroom. Charges of racial discrimination and harassment resulted. Staff and student counseling may have alleviated this awkward issue.
All too often some school officials believe they operate in a "protected community vacuum," manage a "good school system," and therefore tend to function with an "it couldn't happen here" attitude. Surprise! If it can happen it surely may happen! No school system, no matter how "protected" or "good," is immune. However, school officials can and must plan to take steps to avoid the unexpected.
When evaluating the role and responsibility of a school system in standards of care litigation any number of questions come to mind:
- Did school officials act in place of the parent?
- Were school expectations reasonable and prudent considering the age of the student(s)?
- Was the outcome foreseeable?
- Was the incident well supervised or were students and staff properly supervised?
- Did school officials follow school policy?
- Was school policy clearly communicated to students and staff?
- Were basic (local, state, and federal) rules, regulations or guidelines followed?
- Were appropriate authorities notified?
- Did school officials conduct a thorough internal investigation?
- Were all witnesses or parties to the proceedings queried?
- Were well-documented records kept throughout the investigation or proceedings?
While the above are a few of the questions that might be helpful, they also lead to the conclusion that to avoid litigation, school officials need to practice effective management skills focused upon student and staff safety, adequate supervision and effective learning.
William R. Mason, Jr., twice served as President of the Ohio Association of School Personnel Administrators. He is an Adjunct Professor at the University of Dayton and Vice President of SchoolMatch, a Columbus, OH, research firm providing research and expert testimony in school related litigation matters.
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