Whether one lives in Australia, the United States, or someplace in between, educators and governing boards or school councils are increasingly concerned about their potential liability when striving to keep schools safe. This worry continues to grow because governing boards and educators can face liability for injuries students suffer at school whether by the intentional or unintentional actions of peers or staff members in increasingly litigious societies, writes Charles J. Russo and Allan G. Osborne, Jr.
Aware of the unfortunate reality that students can be injured when mishaps occur in schools, practicing preventative law is crucial. In other words, by establishing reasonable safety precautions, boards can not only help to reduce injuries but can also assist in shielding themselves and educators from liability. By practicing preventative law, educators and their governing boards should be able to limit, if not eliminate, liability because courts recognise that teachers and administrators cannot be liable for all incidents in which students are injured, particularly if accidents occur spontaneously.
Based on the proactive need to help limit, if not eliminate, litigation arising when children are injured in schools, this article presents 15 legal principles to guide the actions of school personnel as they seek to maintain safe learning environments. While the significance of these rules should be self-evident, each is accompanied by a brief commentary to highlight the importance of compliance with its content. Although these rules are most appropriate for educators at the building level, governing boards and central office personnel need to be aware of them in order to ensure school safety by developing sound policies in consultation with their legal advisors to better protect the safety of all students in their care. Moreover, governing bodies should also consider including policies in faculty and student handbooks, as well as posting them on regional websites in order to keep teachers, students, and their parents informed about professional educators are working to keep schools safe.
Rules for School Safety
1. Never leave students unattended. A basic element in the law of negligence and adequate student supervision in Australia and the United States is forseeability, namely the duty of educators to anticipate and prevent accidents that can reasonably have been anticipated. As applied, this means that if teachers or other staff members leave classrooms or other locations where they are supervising students unattended, even for brief periods, then they and governing boards face potential liability for reasonably foreseeable harms such as fights and injuries from thrown objects. Thus, when teachers must absent themselves from supervisory duties, even for a brief moment, it is important for governing boards to make substitutes available.
It is important to note that governing boards are less likely to face liability for accidents the first time teachers leave students unattended because there is no foreseeability present. However boards may be responsible if educators have been advised to not leave students unattended but don’t follow such directives. Not surprisingly, teachers in the United States have lost their jobs, typically resulting in unsuccessful litigation on their parts to retain their positions, when they failed to heed warnings from administrators not to leave students unattended.
On the other hand, if teachers are present whether in their regular or physical education classes or in school cafeterias or hallways, and unanticipated actions such as fights or accidents occur, then they and their governing boards are unlikely to be liable. It is also important to bear in mind that the level or amount of supervision required of educators increases for younger children and those who are physically, cognitively, or emotionally disabled.
As to sports, (in particular, an area of special concern with regard to supervision), courts in the United States regularly apply the defense of assumption of risk against negligence charges. Under this defense, participants are liable for the reasonably foreseeable injuries occurring in the course of the athletic or other activities in which they engage. The upshot is that governing bodies and coaches often avoid liability when students are injured while taking part in such interscholastic sports as baseball, basketball, cheerleading, equestrian activities, field hockey, football, gymnastics, ice hockey, lacrosse, mixed martial arts, soccer, softball, swimming, track and field, tennis, wrestling, and weightlifting.
At the same time, though, courts have refused to apply the defense of assumption of risk when educators failed to provide adequate supervision such as where a competitor in a track and field meet was struck by an errant discus while standing in a safe zone; a student was injured during an indoor (American) football practice when he slipped on a wet gym floor where coaches failed to provide proper supervision or after another player was injured due to the lack of supervision at a practice; coaches did not warn a student sufficiently about the dangers of diving into a pool; coaches conducted a track practice in a high school hallway that unreasonably increased a student’s risk of injury; and a coach lacked enough experience to provide adequate supervision to avoid injury to a cheerleader.
2. Never allow school staff to drive students in privately owned vehicles. Governing boards and their staff members face liability for reasonably foreseeable accidents occurring in their personal cars or vehicles as well as those owned by their boards. While many governing bodies have policies allowing staff members to transport students in specified circumstances, such as to and from sport practices or during specified medical emergencies, they would be safer, and wiser, to adopt rules preventing faculty and staff from transporting students in their own privately owned vehicles or those belonging to the boards. Adopting such a rule helps to keep students and teachers from “he-said, she said” situations that can happen if, or when, pupils accuse educators of inappropriate touching while being transported in a private, or school-owned, vehicles. Moreover, even if teachers are cleared of charges, they will have difficulty living down the accusations likely to follow them throughout their careers.
Another consideration to bear in mind can transpire even if teachers have permission to transport students. Suppose, for example, a teacher has permission to drive students to a sporting event but on the way home, the educator varies the route in order to stop to buy snacks for all in the car. If an accident occurs while on this detour, the teacher and governing body are likely to be liable because even if the educator had permission to drive, it was only to transport the students to the event and not to go on the side trip. When there are concerns about students getting home from after-school activities such as practices or social events, if possible, boards should take steps such as entering into contracts with cab companies they have vetted for reliability and safety, or make parents responsible for the cost of transporting their children, so as to avoid having staff use their own vehicles. Ultimately, if parents fail to pick up their children on time, governing bodies may have to take the draconian step of prohibiting students from continuing to participate in these activities.
3. Avoid being alone with students. Educators cannot, and should not, teach, or administer “scared”. Still, the proverbial ounce of prevention is worth the pound of cure. In light of the rash of high profile accusations, let alone documented incidents, of child abuse/sexual harassment, by school personnel, educators should take extra precaution to protect themselves and the children in their care.
In order to better safeguard the wellbeing of professionals and students when it is necessary for teachers or administrators to meet individually with students, it would be wise for both to stand or sit in the front of classrooms or offices, with doors open, where they can be readily observed by passersby. In addition, governing boards might wish to provide counseling locations with clear glass doors so those outside of the rooms can observe what is happening during sessions. Educational staff, whether teachers, counselors, and/or coaches should be particularly mindful to avoid being alone with students after the end of the official school day when few, if any, adults are present so as to avoid possible “he-said, she-said” scenarios.
4. Comply with governing body policies and the law. Of course, such compliance applies to provisions in faculty and student handbooks as well as school safety and security plans. Policy manuals and handbooks are a valuable source of information safeguarding the rights of all school personnel, whether students or staff. As such, administrators and school personnel must keep themselves well informed about these materials and follow them at all times whether dealing with students. Further, all school buildings should have up-to-date safety and security plans delineating procedures to be followed in the event of emergencies. Of particular concern in Australia is to ensure that students comply with governing board policy by wearing appropriate clothing, including hats when participating in outdoor activities.
5. Document accidents, and other incidents, before leaving school after events occur. Along with regular record keeping, completing written accident and incident reports while the information is still fresh can come in handy in the event of litigation. To this end, most governing boards are likely to already have accident and incident reporting forms for this purpose. Preparing timely and accurate records of events may not always absolve governing boards of liability, but they can help to mitigate damages if they documents that staff did all that they reasonably could have to comply with board policies as well as sound educational and legal practice. Copies of accident and incident reports should be sent promptly to a governing board’s Director of Security as well as other top administrators so they can maintain centralised records of incidents.
6. Respect the confidentiality of students and staff. Insofar as many professionals in school communities have full access to a variety of official records, they must all be reminded regularly that such information must be kept confidential so as to protect the privacy rights of those involved, whether students or staff.
In seeking to ensure confidentiality, governing boards should designate a compliance officer for each school to ensure that individuals lacking legitimate reasons to access student records, in particular, such as parent volunteers who work in school offices, cannot access these files. Privacy concerns should extend to schools using security cameras, taking care to ensure that they function only in locations where have students have no legitimate expectations of privacy such as classrooms, cafeterias, and hallways, avoiding their use in locker rooms and changing areas.
Aware of the unfortunate reality that students can be injured when mishaps occur in schools, practicing preventative law is crucial. In other words, by establishing reasonable safety precautions, boards can not only help to reduce injuries but can also assist in shielding themselves and educators from liability. By practicing preventative law, educators and their governing boards should be able to limit, if not eliminate, liability because courts recognise that teachers and administrators cannot be liable for all incidents in which students are injured, particularly if accidents occur spontaneously.
Based on the proactive need to help limit, if not eliminate, litigation arising when children are injured in schools, this article presents 15 legal principles to guide the actions of school personnel as they seek to maintain safe learning environments. While the significance of these rules should be self-evident, each is accompanied by a brief commentary to highlight the importance of compliance with its content. Although these rules are most appropriate for educators at the building level, governing boards and central office personnel need to be aware of them in order to ensure school safety by developing sound policies in consultation with their legal advisors to better protect the safety of all students in their care. Moreover, governing bodies should also consider including policies in faculty and student handbooks, as well as posting them on regional websites in order to keep teachers, students, and their parents informed about professional educators are working to keep schools safe.
Rules for School Safety
1. Never leave students unattended. A basic element in the law of negligence and adequate student supervision in Australia and the United States is forseeability, namely the duty of educators to anticipate and prevent accidents that can reasonably have been anticipated. As applied, this means that if teachers or other staff members leave classrooms or other locations where they are supervising students unattended, even for brief periods, then they and governing boards face potential liability for reasonably foreseeable harms such as fights and injuries from thrown objects. Thus, when teachers must absent themselves from supervisory duties, even for a brief moment, it is important for governing boards to make substitutes available.
It is important to note that governing boards are less likely to face liability for accidents the first time teachers leave students unattended because there is no foreseeability present. However boards may be responsible if educators have been advised to not leave students unattended but don’t follow such directives. Not surprisingly, teachers in the United States have lost their jobs, typically resulting in unsuccessful litigation on their parts to retain their positions, when they failed to heed warnings from administrators not to leave students unattended.
On the other hand, if teachers are present whether in their regular or physical education classes or in school cafeterias or hallways, and unanticipated actions such as fights or accidents occur, then they and their governing boards are unlikely to be liable. It is also important to bear in mind that the level or amount of supervision required of educators increases for younger children and those who are physically, cognitively, or emotionally disabled.
As to sports, (in particular, an area of special concern with regard to supervision), courts in the United States regularly apply the defense of assumption of risk against negligence charges. Under this defense, participants are liable for the reasonably foreseeable injuries occurring in the course of the athletic or other activities in which they engage. The upshot is that governing bodies and coaches often avoid liability when students are injured while taking part in such interscholastic sports as baseball, basketball, cheerleading, equestrian activities, field hockey, football, gymnastics, ice hockey, lacrosse, mixed martial arts, soccer, softball, swimming, track and field, tennis, wrestling, and weightlifting.
At the same time, though, courts have refused to apply the defense of assumption of risk when educators failed to provide adequate supervision such as where a competitor in a track and field meet was struck by an errant discus while standing in a safe zone; a student was injured during an indoor (American) football practice when he slipped on a wet gym floor where coaches failed to provide proper supervision or after another player was injured due to the lack of supervision at a practice; coaches did not warn a student sufficiently about the dangers of diving into a pool; coaches conducted a track practice in a high school hallway that unreasonably increased a student’s risk of injury; and a coach lacked enough experience to provide adequate supervision to avoid injury to a cheerleader.
2. Never allow school staff to drive students in privately owned vehicles. Governing boards and their staff members face liability for reasonably foreseeable accidents occurring in their personal cars or vehicles as well as those owned by their boards. While many governing bodies have policies allowing staff members to transport students in specified circumstances, such as to and from sport practices or during specified medical emergencies, they would be safer, and wiser, to adopt rules preventing faculty and staff from transporting students in their own privately owned vehicles or those belonging to the boards. Adopting such a rule helps to keep students and teachers from “he-said, she said” situations that can happen if, or when, pupils accuse educators of inappropriate touching while being transported in a private, or school-owned, vehicles. Moreover, even if teachers are cleared of charges, they will have difficulty living down the accusations likely to follow them throughout their careers.
Another consideration to bear in mind can transpire even if teachers have permission to transport students. Suppose, for example, a teacher has permission to drive students to a sporting event but on the way home, the educator varies the route in order to stop to buy snacks for all in the car. If an accident occurs while on this detour, the teacher and governing body are likely to be liable because even if the educator had permission to drive, it was only to transport the students to the event and not to go on the side trip. When there are concerns about students getting home from after-school activities such as practices or social events, if possible, boards should take steps such as entering into contracts with cab companies they have vetted for reliability and safety, or make parents responsible for the cost of transporting their children, so as to avoid having staff use their own vehicles. Ultimately, if parents fail to pick up their children on time, governing bodies may have to take the draconian step of prohibiting students from continuing to participate in these activities.
3. Avoid being alone with students. Educators cannot, and should not, teach, or administer “scared”. Still, the proverbial ounce of prevention is worth the pound of cure. In light of the rash of high profile accusations, let alone documented incidents, of child abuse/sexual harassment, by school personnel, educators should take extra precaution to protect themselves and the children in their care.
In order to better safeguard the wellbeing of professionals and students when it is necessary for teachers or administrators to meet individually with students, it would be wise for both to stand or sit in the front of classrooms or offices, with doors open, where they can be readily observed by passersby. In addition, governing boards might wish to provide counseling locations with clear glass doors so those outside of the rooms can observe what is happening during sessions. Educational staff, whether teachers, counselors, and/or coaches should be particularly mindful to avoid being alone with students after the end of the official school day when few, if any, adults are present so as to avoid possible “he-said, she-said” scenarios.
4. Comply with governing body policies and the law. Of course, such compliance applies to provisions in faculty and student handbooks as well as school safety and security plans. Policy manuals and handbooks are a valuable source of information safeguarding the rights of all school personnel, whether students or staff. As such, administrators and school personnel must keep themselves well informed about these materials and follow them at all times whether dealing with students. Further, all school buildings should have up-to-date safety and security plans delineating procedures to be followed in the event of emergencies. Of particular concern in Australia is to ensure that students comply with governing board policy by wearing appropriate clothing, including hats when participating in outdoor activities.
5. Document accidents, and other incidents, before leaving school after events occur. Along with regular record keeping, completing written accident and incident reports while the information is still fresh can come in handy in the event of litigation. To this end, most governing boards are likely to already have accident and incident reporting forms for this purpose. Preparing timely and accurate records of events may not always absolve governing boards of liability, but they can help to mitigate damages if they documents that staff did all that they reasonably could have to comply with board policies as well as sound educational and legal practice. Copies of accident and incident reports should be sent promptly to a governing board’s Director of Security as well as other top administrators so they can maintain centralised records of incidents.
6. Respect the confidentiality of students and staff. Insofar as many professionals in school communities have full access to a variety of official records, they must all be reminded regularly that such information must be kept confidential so as to protect the privacy rights of those involved, whether students or staff.
In seeking to ensure confidentiality, governing boards should designate a compliance officer for each school to ensure that individuals lacking legitimate reasons to access student records, in particular, such as parent volunteers who work in school offices, cannot access these files. Privacy concerns should extend to schools using security cameras, taking care to ensure that they function only in locations where have students have no legitimate expectations of privacy such as classrooms, cafeterias, and hallways, avoiding their use in locker rooms and changing areas.
7. Avoid force when disciplining students. Sadly, the use of force by educators more often than not typically reflects their frustration and inability to deal successfully with students, serving little value other than relieving their anger. Accordingly, sound educational practice suggests that the use of violence or force may only model the very behavior that school personnel are seeking to eliminate.
Along with potentially costly legal battles over the use of force, educators should think about the negative message the use of force sends. Egregious incidents in the United States involved litigation where a principal was dismissed for tying a child with a behavioral disorder to a desk, binding his ankles and wrists with duct tape, and leaving him in an open doorway in public view for about two hours and where a teacher bound one student with electrical cord and placed soap on the tongue of another. Put another way, educators need to be mindful of the impact of their actions because poor public relations can erode needed support for schools.
Aware of the need to sometimes apply force, educators who are in positions where they must physically restrain students should be trained properly to use restraints in order to minimise the possibility of causing injuries. Properly administering restraints on students can reduce and even eliminate liability.
8. Properly maintain school equipment. Educators can be liable for injuries caused by knowingly defective equipment whether in playgrounds, gymnasia, or science laboratories. In this way, governing boards should ensure that all equipment is inspected regularly and document that these inspections have occurred. It should all but go without saying that teachers must provide proper instruction in the use of all equipment, especially items whose use may be inherently risky such as in science laboratories. Educators must also provide proper instruction in the use of equipment and supervision whenever students engage in activities with heightened risks of injuries such as tumbling exercises and contact sports.
9. Require school visitors to sign in, sign out, and wear identification badges at all times. In order to maintain safe learning environments, school officials need to be aware of the presence of any and all visitors in their buildings, even if they are regular parental volunteers. Having this information readily available can be important in the event of a crisis when it becomes necessary to obtain an accurate count of who is in a building or if a visitor needs to be contacted for a telephone call or personal emergency.
It would be wise to include building access policies as part of the overall school safety rules included in parent and student handbooks that must be signed and returned at the beginning of the school year. Access policies should be posted at locations where visitors sign in with copies given to all visitors.
10. Develop comprehensive internet-acceptable use policies. As reflected by the recent controversy of child pornography involving under-aged students in at least 70 public and private schools throughout Australia, the increased rate at which the use, and misuse, of technology in schools has generated a multitude of new legal issues surrounding the use of social and other digital media that most could not have anticipated a few short years ago. Yet, the access and use the internet is dictated more by policies of school governing bodies than the law. This makes it imperative for governing boards to develop and disseminate comprehensive acceptable use policies for the internet while taking steps to ensure that teachers, students, and their parents understand these rules and the consequences of non-compliance.
As the use of technology in Australian schools continues to grow, jurists and educators alike may wish to review some of the significant amount of case law from the United States to get a better sense of the array of issues surrounding student and teacher misuse of the internet, particularly postings on social networking sites. Based on litigation in the United States, it remains unclear where the line can be drawn between protected free speech and impermissible use of the internet that can subject students, and teachers, to discipline. A governing board policy regarding acceptable use of the internet coupled with consistent enforcement of rules can help to go a long way in avoiding problems while keeping students and schools safer.
11. Develop and enforce a comprehensive anti-bullying/harassment policy. Sadly, bullying and harassment have long been present in schools. Moreover, these forms of student misconduct persist, often with tragic results such as when victims take their own lives. At the same time, student misuse of social networking via cyberbullying to harass and/or intimidate peers and educators, is on the rise.
Acknowledging the need to keep students safe and to encourage them to report incidents of bullying, governing boards should develop anti-bullying policies while also incorporating anti-bullying strategies in curricula. Governing boards and school staff can be liable if they fail to curb bullying and/ or harassment, especially if students and their parents have complained to school officials about present threats to their wellbeing.
12. Provide professional development for teachers and all staff members. In order to help ensure that all school personnel are aware of governing board policies and the law, professional development should be provided annually. These sessions should not only make teachers and other staff members aware of school policies but should also help to ensure they are knowledgeable about recent changes in applicable rules.
13. Conduct information sessions for students and parents. It is important to offer such sessions because if parents are aware of the safety rules then they can help to work with their children to ensure compliance. Further, educators should discuss policies with students both in large-scale presentations such as assemblies and in classroom meetings.
14. Work with the council’s or board’s legal advisor when devising, updating, and implementing policies. Educators must recognise the value of advice received from their legal advisor because it can help them to steer clear of legal controversies both prospectively and once controversies arise after policies are in place. When necessary, calls to school solicitors should be made by designated individuals such as principals or central office personnel. Moreover, educators should work with lawyers to make sure that their policies are as up-to-date as possible in light of the speed with which the law can change.
15. Revise Policies Regularly. Governing boards should revise policies regularly, preferably after controversies have occurred. Waiting until after controversies have subsided is wise because this allows cooler heads to prevail once some time has passed.
Conclusion
Keeping students and their schools safe requires all educational personnel to remain vigilant. The more carefully governing boards, and educational leaders, work to make staff members and students aware of their policies, the more likely they will be able to both have safe schools in which children are free to learn without distraction and avoid potentially costly injuries. Of course, having current policies does not eliminate all of the risk of liability but can go a long way in demonstrating that educators did all that they could to keep schools safe.
Compliance with the rules discussed in this column does not, of course, guarantee perfectly safe schools immune from litigation or the threat of suits. However, the more carefully that educational staff and governing boards work to follow these rules, the more likely they are to have safe schools where all can focus on learning while sidestepping potentially costly, and avoidable, litigation. Finally, fundamental fairness, coupled with the principles of the law of negligence and adequate supervision of students in Australia, dictate that educators treat all students fairly and equitably by providing them with safe and orderly learning environments.
Authors
Charles J. Russo, J.D., Ed.D., is the Joseph Panzer Chair of Education in the School of Education and Health Sciences (SEHS), Director of SEHS’s Ph.D. Program in Educational Leadership, and Adjunct Professor in the School of Law at the University of Dayton, OH. He is also an Adjunct Professor of Law in the School of Law at the University of Notre Dame, Sydney, NSW.
Allan G. Osborne, Jr., Ed.D., is the retired Principal of Sung Harbor Elementary School in Millis, Mass., USA.
