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Overview
This commentary represents the third in a series devoted
to the subject of school security. This time, however,
the discussion focuses on an important concept in school law---
the duty to protect students. The duty to protect
(defend, guard) students moves far beyond the scope of the
traditional duty of care (concern) owed students, and
marks a major shift both in school law and in local school
system policy. When this shift takes place the notion of
safety changes to one of security. While protecting
children from pornography is most often associated with the
concept, recent closings of entire school systems and
cancellations of all after school activities because of the
"sniper's" direct threats against children serve as examples of
an emerging venue where the duty to protect springs into
action.
The DeShaney Rule
More than a decade has passed since the United States Supreme
Court decided DeShaney v Winnebago Department of Social
Services (1989), a non-school case involving a four-year-old
male child who had been repeatedly beaten by his divorced
father. The child's mother had sued in federal court alleging
that the agency had a duty to protect her child and failed to
intervene when faced with documented proof of the abuse.
In DeShaney, the Supreme Court had to answer the
following question: Does a local social services agency have a
duty to protect a child where evidence of physical abuse by his
father exists, by removing the child from his father's custody?
By a vote of 6 to 3, the high court held that a department of
social services is under no legal duty to protect a child
unless a special relationship (e.g., a custodial
relationship in an institutional setting) exists between the
agency and the child.
For more than a decade, the courts have applied the DeShaney
"special relationship test" in school cases. As a general rule,
the mere existence of state compulsory attendance and child
abuse statutes is not enough to establish the existence of a
special relationship between school officials and students.
Absent direct evidence of an established special relationship
(e.g., field trips, athletic teams, vocational
laboratories, physical education activities, chemistry classes,
special classes and schools for students with disabilities,
incarcerated kids), most judges agreed that school officials are
not duty bound to protect students from harm.
Foreseeability plus Deliberate Indifference
The traditional rule holds that school officials owe the
following basic duties to students: (1) instruction, (2)
supervision, (3) and the proper maintenance of grounds,
facilities, and equipment. A common thread running through each
of these duties is an implied duty of care.
In the past, the typical student injury case finding its way
into a court of law took the form of a negligent tort, in which
the plaintiff claimed that the breach of one or more of these
duties was the proximate cause of the injury suffered. The
standard applied in such cases was that of the reasonable and
prudent person (superintendent, principal, teacher, coach,
counselor), and the doctrine of foreseeability (i.e.,
reasonable anticipation that harm or injury are likely) provided
the key to establishing and assigning liability. To put it
another way, where a reasonable and prudent superintendent,
principal, teacher, coach, counselor could have or should have
foreseen something, and did not take appropriate action
to prevent, mitigate, or stop the event, liability likely will
attach where the failure to act was the proximate cause
of injury.
The modern view factors imminent danger (certain,
immediate, and impending danger) into the duty/risk analysis. In
doing so, the traditional duty of care transforms into a
duty to protect. While the reasonable and prudent person
standard remains the basic tool of analysis, deliberate
indifference is added to the equation. Thus, where a
reasonable and prudent person could have or should have foreseen
something either had or was about to occur, and assumed a
deliberately indifferent attitude concerning the matter,
liability will likely attach. To put it another way, where a
reasonable and prudent superintendent, principal, teacher,
coach, counselor could have or should have foreseen that
something had or was about to occur, and did not take
appropriate steps to prevent, mitigate, or stop the event, or
tried to "sweep it under the rug," and that deliberate
indifference was the proximate cause of future harm
to students, liability likely will attach.
Case Law Examples
The deliberate indifference standard has come into clear
focus over the past decade. Case law involving student peer
sexual harassment is an area of law where judges have
consistently applied the concept. What follow are some case law
examples.
B.M.H. v School Board of Chesapeake (1993) is a Virginia
case where a male student sexually assaulted a female student,
on school grounds. She had reported threats made to her by the
other student three days before the incident. Subsequently she
unsuccessfully sued school officials and certain teachers. In
the court's opinion, neither Virginia's compulsory attendance
nor child abuse statutes create a special relationship or a
special duty to protect students from harm.
In Walton v Alexander (1994), a male student had sexually
assaulted another male student. The United States Court of
Appeals for the Fifth Circuit saw a difference between student
injuries that result from the "mere negligence" or
"carelessness" of school officials, and those that are the
result of "deliberate indifference." Deliberate indifference,
said the court, is where a school official: (1) knows about or
willfully avoids knowing about, the possibility of serious harm
to students, (2) fails to take appropriate action, and (3) a
student is harmed because of that failure to act. It is
important to note that the Fifth Circuit held in another case
involving dangerously aggressive students, Doe v Taylor
(1994), that simply because a special relationship
does not exist school officials are not free from liability when
dangerous and disruptive acts are committed on school property.
Doe v Oyster River Coop. School District (1997), also
established that public school officials could be held liable
for student peer sexual harassment if they knew or should have
known of the matter, but failed to correct the problem. However,
in Doe, a federal district court added that the following
conditions must be present: (1) a special relationship or
duty must exist to protect students, and (2) the
harassment must be severe and pervasive.
Three years ago, the United States Supreme Court decided
Davis v Monroe County Board of Education (1999). In Davis,
a male student in a public school classroom sexually assaulted a
female fifth-grade student. By a vote of 5 to 4 the Court
crafted the following comprehensive standard: school officials
may be held liable where (1) the harassment is so severe and
pervasive that it limits the student victim's ability to learn,
(2) school officials knew of the harassment, (3) school
officials demonstrated deliberate indifference to the matter,
and (4) reasonable steps were not taken to remedy the situation.
A post-Davis decision from Louisiana illustrates the
importance of the "knew or should have known" (i.e.,
prior knowledge) factor. In Lee v B&B Ventures (2001), a
student was shot in the parking lot of a disco club following a
fund raising event sponsored by a public middle school. A trial
court held that the school district was liable. On appeal the
lower court's judgement against the school district was
reversed. In the appellate court's opinion, unless the
foreseeability of harm was high, the school district had no
required duty to the student. Since no prior criminal activity
was reported at the disco, no required duty existed to make
available additional security.
Policy Implications
The case law reported in this commentary validates the recent
efforts of school officials to protect students from the
potential harm. The threatened harm was clearly articulated in
communications between the sniper and the police. The situation
contained all the criteria set out in the case law. Briefly
summarized these criteria are:
- a student had been shot and wounded in front of a public
middle school,
- an actual written threat to the safety of children had been
communicated to the police,
- the random and serial nature of the sniper's acts, in more
than one jurisdiction, made the incidents both severe and
pervasive in nature,
- students' opportunities to learn were interrupted,
- a special relationship existed in all schools (especially
those placed in a lock-down mode), and
- an immediate and proactive plan had to be put into effect.
The events of the past two weeks demonstrate a shift from a
duty
of care to a duty to protect, coupled with a responsibility to
provide needed security. Thus, in (a) placing all schools in a
high security mode, (b) canceling all outside school activities,
(c) locking- down all buildings, and (d) some communities
closing the entire school system, officials took reasonable,
prudent, and necessary steps to carry out their duty to protect
students. In other words, school superintendents "did the right
thing."
Now that the police have sniper suspects in custody, and schools
once again are in full operation, it is appropriate to take time
and reflect on the effectiveness of school system policies
implemented during this horrific crisis. What follow are some
suggested questions to ask as a part of the debriefing activity:
- Were our policies clearly stated? If not, how can the wording
be improved?
- Were our policies conducive to immediate and effective
cooperation between school administration and police agencies?
If not, how can improvements be made?
- Were our policies on school safety and security appropriate
and responsive to meet the high stress of such a terrifying set
of events as the sniper shootings? If not, what needs too be
done to make them more appropriate and responsive?
- Did our policies assist building level administrators,
teachers, counselors and other key staff in carrying out their
roles and responsibilities? What can be done to improve?
- Did our policies encourage and promote the continuous and
sustained involvement of parents? If not, what needs to be done?
- Did our policies in any way prevent open lines of
communication at all levels? What did we learn about the
appropriateness of our information flow, both within and outside
our school system? How can we improve?
- Did our policies help us in our relationships with the media?
How can we better work with the media during such high stress
situations?
- Were our policies appropriate and responsive to the special
needs of our students, from pre-school children to the high
school seniors? What do we need to do to improve our information
flow and crisis management efforts for students of all maturity
levels in every school?
Finally, it behooves school officials to research their state's
statutes to see if the law has changed regarding critical events
and emergencies. In Virginia, for example, the Code of Virginia,
Section 22.1-279.8, was amended to add acts of terrorism to
those crises and emergency events that must be addressed in
school crisis and emergency plans. The Code also requires the
inclusion of procedures and means by which parents can contact
the school system regarding the location and safety of their
children during crises and emergency events.
Resources Cited
B.M.H. v School Board of Chesapeake, 833 F.Supp. 560 (E.D.Va.
1993)
Davis v Monroe County Board of Education, 119 S.Ct. 1661
(1999)
DeShaney v Winnebago County Department of Social Services,
489 U.S. 189 (1989)
Doe v Oyster River Coop. School District, 992 F.Supp. 2d
467 (D.N.H. 1997)
Doe v Taylor, 15 F.3d 443 (5th Cir. 1994), cert. denied,
115 S.Ct. 70 (1994)
Lee v B&B Ventures, 793 So.2d 215 (La.Ct.App. 2001)
Walton v Alexander, 20 F.3d 1350 (5th Cir. 1994)
Code of Virginia 22.1-279.8 (2002)
Richard S. Vacca
Senior Fellow CEPI
Note: The views and opinions expressed in this commentary are
those of the author. |
