Teachers and the Law Teachers Rights Notes

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Teachers and the Law Teachers Rights Notes Powered By Docstoc
					                  Issues, Laws, and Trends in Education
                              Class 10 Notes

Teacher Liability
   I. Constitution
           a. § 1983 of the Civil Rights Act of 1871
                  i. Every person who, under color of any statute, ordinance, regulation,
                     custom, or usage, of any State or Territory or the District of Columbia,
                     subjects, or causes to be subjected, any citizen of the United States or
                     other person within the jurisdiction thereof to the deprivation of any rights,
                     privileges, or immunities secured by the Constitution and laws, shall be
                     liable to the party injured in an action at law, suit in equity, or other proper
                     proceeding for redress, except that in any action brought against a judicial
                     officer for an act or omission taken in such officer's judicial capacity,
                     injunctive relief shall not be granted unless a declaratory decree was
                     violated or declaratory relief was unavailable. For the purposes of this
                     section, any Act of Congress applicable exclusively to the District of
                     Columbia shall be considered to be a statute of the District of Columbia.
           b. Title IX
                    i. (a) Prohibition against discrimination; exceptions. No person in the
                       United States shall, on the basis of sex, be excluded from participation in,
                       be denied the benefits of, or be subjected to discrimination under any
                       education program or activity receiving Federal financial assistance,
                       except that:
                   ii. (1) Classes of educational institutions subject to prohibition
                           1. in regard to admissions to educational institutions, this section
                              shall apply only to institutions of vocational education, professional
                              education, and graduate higher education, and to public
                              institutions of undergraduate higher education;
                  iii. (2) Educational institutions commencing planned change in
                       admissions
                           1. in regard to admissions to educational institutions, this section
                              shall not apply (A) for one year from June 23, 1972, nor for six
                              years after June 23, 1972, in the case of an educational institution
                              which has begun the process of changing from being an institution
                              which admits only students of one sex to being an institution which
                              admits students of both sexes, but only if it is carrying out a plan
                              for such a change which is approved by the Secretary of Education
                              or (B) for seven years from the date an educational institution
                              begins the process of changing from being an institution which
                              admists only students of one sex to being an institution which
                              admits students of both sexes, but only if it is carrying out a plan
                              for such a change which is approved by the Secretary of Education,
                              whichever is the later;
                  iv. (3) Educational institutions of religious organizations with
                       contrary religious tenets
                   1. this section shall not apply to any educational institution which is
                       controlled by a religious organization if the application of this
                       subsection would not be consistent with the religious tenets of
                       such organization;
            v. (4) Educational institutions training individuals for military
                services or merchant marine
                   1. this section shall not apply to an educational institution whose
                       primary purpose is the training of individuals for the military
                       services of the United States, or the merchant marine;
            vi. (5) Public educational institutions with traditional and continuing
                admissions policy
                   1. in regard to admissions this section shall not apply to any public
                       institution of undergraduate higher education which is an
                       institution that traditionally and continually from its establishment
                       has had a policy of admitting only students of one sex;




II. Law

      A. Intentional Torts
             a. Intentional torts are usually offenses committed by a person who attempts
                 or intends to do harm. For intent to exist, the individual must be aware
                 that injury will be the result of the act. A common type of intentional tort
                 is assault. Assault refers to an overt attempt to physically injure a person
                 or create a feeling of fear and apprehension of injury. No actual physical
                 contact need take place for an assault to occur. Battery, on the other hand,
                 is an intentional tort that results from physical contact. For example, if a
                 person picks up a chair and threatens to hit another person, assault has
                 occurred; if the person then actually hits the second person, battery has
                 occurred. Both assault and battery can occur if a person threatens another,
                 causing apprehension and fear, and then actually strikes the other,
                 resulting in actual injury.
             b. Teachers accused of assault and battery are typically given considerable
                 leeway by the courts (Alexander & Alexander, 1992). This is because
                 assault and battery cases often result from attempts to discipline a student
                 or stop a student from injuring someone. Courts are generally reluctant to
                 interfere with a teacher’s authority to discipline students (Valente, 1994).
                 Courts have found teachers guilty of assault and battery, however, when a
                 teacher’s discipline has been cruel, brutal, excessive, or administered
                 with malice, anger, or intent to injure.
             c. In determining if a teacher’s discipline constitutes excessive and
                 unreasonable punishment, courts will often examine the age of the
                 student, the instrument, if any, used to administer the discipline, the
                 extent of the discipline, the nature and gravity of the student’s offense,
                 the history of the student’s previous conduct, and the temper and conduct
                 of the teacher. For example, a teacher in Louisiana was sued and lost a
                 case for assault and battery for picking up a student and slamming him
           against bleachers. The teacher then dropped the student to the floor
           resulting in the student’s arm being broken (Frank v. New Orleans Parish
           School Board, 1967). In Connecticut, a student was awarded damages
           when a teacher slammed the student against a chalkboard and then a wall,
           breaking the student’s clavicle (Sansone v. Bechtel,1980). Clearly, both
           of these actions were excessive and indicate that in such situations
           teachers may be held personally liable for injuries that occur to students
           because of the teacher’s behavior.
B. Negligence Torts
       a. The second type of tort seen most frequently in education related cases is
           negligence. The difference between negligence and an intentional tort is
           that in negligence the acts leading to injury are neither expected nor
           intended. Students who bring negligence claims must prove that school
           personnel should have foreseen and prevented the injury by exercising
           proper care. Accidents that could not have been prevented by reasonable
           care do not constitute negligence (McCarthy & Cambron-McCabe, 1992).
       b. There are four elements that must be present for negligence to occur: (1)
           the teacher must have a duty to protect students from unreasonable risks,
           (2) the teacher must have failed in that duty by not exercising a
           reasonable standard of care, (3) there must be a causal connection
           between the breach of the duty to care and the resulting injury, and (4)
           there must be an actual physical or mental injury resulting from the
           negligence. In a court, all four elements must be proven before damages
           will be awarded for negligence.
       c. Duty to Protect
                i. The first element, the duty to protect, is clearly part of a teacher’s
                    responsibilities. Teachers have a duty to anticipate foreseeable
                    dangers and take necessary precautions to protect students in their
                    care (McCarthy & Cambron-McCabe, 1992). Specifically, teacher
                    duties include: adequate supervision, maintenance of equipment
                    and facilities, and heightened supervision of high-risk activities.
                    In the majority of negligence cases against teachers, the duty to
                    protect is easily proven (Fischer et al., 1994 ). Clearly this duty
                    applies to activities during the school day, however, courts have
                    also held that this duty may extend beyond regular school hours
                    and away from school grounds (e.g., after school activities,
                    summer activities, field trips, bus rides).
       d. Failing to Exercise a Reasonable Standard of Care
                i. The second element that must be proven in cases of negligence
                    occurs when teachers fail to exercise a reasonable standard of care
                    in their duties to students. If a teacher fails to exercise reasonable
                    care to protect students from injury, then the teacher is negligent.
                    Courts, in negligence cases, will gauge a teacher’s conduct on
                    how a "reasonable" teacher in a similar situation would have
                    acted. The degree of care exercised by a "reasonable" teacher is
                    determined by factors such as: (a) the training and experience of
                    the teacher in charge, (b) the student’s age, (c) the environment in
                    which the injury occurred, (d) the type of instructional activity, (e)
                    the presence or absence of the supervising teacher, and (f) a
                    student’s disability, if one exists (Mawdsley, 1993; McCarthy &
                    Cambron-McCabe, 1992). For example, a primary grade student
                    will require closer supervision than a secondary student; a
                    physical education class in a gymnasium or a industrial arts class
                    in a school woodshop will require closer supervision than a
                    reading class in the school library; and a student with a mental or
                    behavioral disability will require closer supervision that a student
                    with average intelligence.
               ii. A number of cases have held that the student’s IEP, disability, and
                    unique needs are all relevant factors in determining the level of
                    supervision that is reasonable (Daggett, 1995). Additionally,
                    school officials may be liable for damage claims resulting from a
                    failure to supervise a student with disabilities when that student
                    injures another student.
      e. Proximate Cause
                i. The third element that must be proven in a negligence case is
                    whether there was a connection between the breach of duty by the
                    teacher and the student’s injury; that is, the teacher failed to
                    exercise a reasonable standard of care (element two) and this
                    breach of duty resulted in the subsequent injury to the student
                    (element four). This element, referred to as proximate cause, often
                    hinges on the concept of foreseeability. That is, was the student’s
                    injury something that could have been anticipated by a teacher? If
                    the injury could have been foreseen and prevented by a teacher if
                    a reasonable standard of care had been exercised, a logical
                    connection and, therefore, negligence may exist. To answer
                    questions regarding proximate cause, courts will attempt to
                    ascertain "was the injury a natural and probable cause of the
                    wrongful act (i.e., failure to supervise), and ought to have been
                    foreseen in light of the attendant circumstances?" (Scott v.
                    Greenville, 1965). Negligence claims will not be successful if the
                    accident could not have been prevented through the exercise of
                    reasonable care.
      f. Actual Injury
                i. The final element that must be proven in negligence cases is that
                    there was an actual physical or mental injury. Moreover, although
                    the injury does not have to be physical, it must be real as opposed
                    to imaginary (Mawdsley, 1993). Even in instances where there is
                    negligence, damage suits will not be successful unless there is
                    provable injury.
C. Contributory Negligence
      a. If it can be shown that a student contributed to the injury, the teacher may
          use a defense of contributory negligence. If the court finds that
                   contributory negligence was present, the teacher will not be held liable.
                   With younger students (i.e., under the age of 6), it is difficult to prove
                   contributory negligence because the tort laws in many states hold that
                   young children are incapable of contributory negligence. In these
                   instances, therefore, students can collect damages even if they did
                   contribute to the injury. If students are between 7 and 14, unless it can be
                   shown that they are quite intelligent and mature, contributory negligence
                   is also difficult to prove.
               b. Teachers and other school officials may be held liable for student injuries
                   that occur because of their actions or negligence, but this liability also
                   applies to all other citizens and professions (Fisher, et. al, 1995). Because
                   educators work with children, however, they are in positions where
                   situations that may lead to liability lawsuits are more likely to occur. This
                   is especially true of special educators who work with students, who
                   because of their disabilities, have a greater likelihood of not recognizing
                   danger and dangerous situations and thus being injured or injuring others
                   (Foster v. Houston General, 1981; Mawdsley, 1993). In fact, schools,
                   school officials, and teachers may have a heightened standard of care for
                   students with disabilities, especially those with cognitive and behavioral
                   disabilities (Mawdsley, 1993).Special educators should not worry
                   needlessly about liability; however, they need to recognize the heightened
                   standard of care the profession brings.



A. Intentional Torts - An intentional tort is a category of torts that describes a civil wrong resulting
from an intentional act on the part of the tortfeasor. The level of intent required to render a party liable for an
intentional tort has been described as "substantial certainty" that the result would occur.

   1. Assault- Intentionally and voluntarily causing the reasonable apprehension of an immediate harmful
      or offensive contact, coupled with the ability to carry out the contact.
   2. Battery- Intentionally and volitionally bringing about an unconsented harmful or offensive contact with
      a person or to something closely associated with them (i.e. a hat, a purse, etc.).
   3. Slander and libel- Slander (harmful statement in a transitory form, especially speech) and libel
      harmful statement in a fixed medium, especially writing but also a picture, sign, or electronic
      broadcast) are the communication of a statement that makes a false claim, expressly stated or
      implied to be factual, that may harm the reputation of an individual, business, product, group,
      government or nation.
   4. False imprisonment- The tort, and possibly the crime, wherein a person is intentionally confined
      without legal authority.
   5. Intentional infliction of emotional distress- A tort claim of recent origin for intentional conduct that
      results in extreme emotional distress.
   6. Trespass to land- Intentionally entering the land of another without lawful excuse.
   7. Trespass to chattels- Intentionally interfering with another person's lawful possession of personal
      property.
   8. Conversion- Unjustified willful interference with the personal property depriving the owner of
      possession


B. Negligence Torts
  1. The difference between negligence and an intentional tort is that in negligence the
  acts leading to injury are neither expected nor intended. Students who bring negligence
  claims must prove that school personnel should have foreseen and prevented the injury
  by exercising proper care. Accidents that could not have been prevented by reasonable
  care do not constitute negligence (McCarthy & Cambron-McCabe, 1992).

  There are four elements that must be present for negligence to occur: (1) the teacher
  must have a duty to protect students from unreasonable risks, (2) the teacher must have
  failed in that duty by not exercising a reasonable standard of care, (3) there must be a
  causal connection between the breach of the duty to care and the resulting injury, and
  (4) there must be an actual physical or mental injury resulting from the negligence. In
  a court, all four elements must be proven before damages will be awarded for
  negligence.



  2. Duty of Care – To act as a reasonable person, under the circumstances, toward
  another person with whom a common-law has established a teacher-student
  relationship that imposes a duty of care on the part of the teacher. Liability may be
  reduced by statutory provision and liability is based on willful or wanton misconduct.
  “Good Samaritan” law may apply as well to reduce liability.

  3. Standard of Care – The “reasonable and prudent” person, charged with like duties,
  would exercise under similar circumstances. Higher degree of care should be
  exercised with younger children and potentially dangerous situations (ie. Chemistry
  lab or Tech Ed classrooms). Teachers are not liable for all injuries sustained by
  students; however, the question of whether it could have been foreseen and prevented
  will be raised.

  4. Proximate Cause – A causal connection must exist between a teacher’s conduct and
  the resultant injury for an action in negligence to prevail. A student’s misconduct
  could be used as an intervening act to dismiss a causal connection.

  5. Actual Loss or Injury – Proof of damage is an essential element in a negligence
  action.

C. Defense of Negligence

  1. Contributory negligence – The injured party significantly contributed to his or her
  own injury. Children are not always held at the same standard as adults to understand
  the ramifications of actions.

  2. Assumption of Risk – Injured party know of the possible danger and either by
  agreement or actions voluntarily accepted the possibility of harm.

D. Liability under State Law
1. Immunity – Half of the states, school districts have governmental or sovereign
immunity from liability for torts committed by the school district, school board
members, or employees. The idea is that the state and its agencies are sovereign and
cannot be sued without consent. Protects limited resources of governmental agencies.

2. Schools are generally not responsible for students on their way to and from school
except when they are on school busses. However, if transportation drops students off
for school or supervision is voluntarily provided, then the school may be responsible.

E. Parental Consent – Consent forms requiring parent and student signatures may
purport to release the school from liability in the event of an injury. However, if a
school or employee is negligent, the form does not cover them.

F. Educational Malpractice

1. Nonactionable – poor academic instruction, failure to place a student in an
appropriate educational setting, failure to properly supervise students. (Does not apply
to Learning Support which is separately covered under IDEA)

2. Actionable – Guidance counselor gave inaccurate information leading to damage.



 D. Have students present their cases.
       a. Gebser v Lago Vista Independent School Dist. (Teacher-to-Student
            Harassment)
       b. Davis v Monroe County Board of Education (Student-to-Student
            Harassment)
       c. Carey v Piphus
       d. Wood v Strickland


 E. Court Cases
        a. The decision in Ferraro v. Board of Education of the City of New York
            (1961) indicated that courts will hold school personnel liable if a student
            attacks and injures another student and the teacher should have known
            that such an attack or aggressive behavior was possible and, therefore,
            could have prevented the injury. A student with a long history of
            behavior problems assaulted Josette Ferraro in a junior high school
            classroom. The student had assaulted peers on a number of occasions and
            was constantly aggressive toward students as well as teachers. On the day
            of the assault, a substitute teacher was in charge of the class. She was not
            informed of the student’s tendency to misbehave and attack other
            students. Josette Ferraro, who was injured when attacked, sued the
            school. The court found the school negligent because they had not
    informed the substitute of the student’s aggressive behavior toward
    others. The court reasoned that had she known, the substitute teacher
    could have taken actions to prevent the assault.
b. A similar case was heard by a federal district court in Pennsylvania. In
    Cohen v. School District (1992), a special education student with learning
    disabilities, behavior problems, and known violent tendencies was
    mainstreamed without adequate supervision. Without provocation, the
    student attacked and injured a peer in his classroom. The parents of the
    injured student sued the school maintaining that the injured student’s
    rights had been violated. The court held that placing a student with
    behavior problems in the general education setting is not unconstitutional
    per se. That is, it is not a violation of law to place a potentially violent
    student in a general education classroom. The court stated such a
    placement, however, may result in school officials being held liable if the
    officials knew that a student with disabilities was violent, and they placed
    the student in the general education classroom without adequate
    supervision.
c. In Grooms v. Marlboro County School District (1992), school officials
    permitted a 15-year-old boy with cognitive, emotional, and behavioral
    problems to leave his classroom unescorted if he thought his behavior
    would be disruptive. Additionally, the boy was supposed to go to the
    school janitor for supervision. Specifically the boy was told that when he
    going to misbehave he could "skip" class and go to the school janitor’s
    office. He was supposed to stay there until he was ready to "go back to
    class and behave." In one instance, the boy walked out of his classroom
    and got into a fight in the hall. The janitor did not intervene and the boy
    suffered severe head injuries. The parents brought suit against the school
    district alleging negligent supervision. The court ruled that the case had
    merit and could go forth. The court reasoned that the school’s policy of
    allowing the student, "whose judgment was impaired by the disability," to
    simply leave the classroom unescorted and report to a person who "did
    not have the level of expertise necessary" to deal with the student may
    have constituted gross negligence.
d. In McMahan v. Crutchfield (1997), a school district paid to settle a lawsuit
    involving a special education student who assaulted a five-year-old girl.
    Allan Crutchfield, who had mild to moderate mental disabilities and had
    a history of behavioral problems, was participating in a job-training
    program when the assault occurred. He had a history of assaultive
    behavior, and a mental health evaluation had stressed that he be under
    constant supervision. His job-training program involved work in a college
    cafeteria. One morning a college student brought her five-year-old
    daughter into the cafeteria. When the girl went to the bathroom,
    Crutchfield, who was unsupervised, followed her in, forced her head into
    a toilet, and began to strangle her. A college student hearing screaming
    ran into the bathroom and chased Crutchfield away. The young girl was
    unconscious and injured, but she eventually recovered. Crutchfield was
            later found incompetent to stand trial and committed to a state psychiatric
            hospital. The girl’s mother sued the school district. Rather than going to
            court, school officials admitted their liability and paid the girl’s mother
            $400,000.
       e. These cases are instructive in that they illustrate when school officials and
            personnel may be held liable for student injury and misconduct. They are
            also similar in that the actions of school personnel were clearly negligent.
            In each case, student injury could have been prevented had the school
            personnel performed their duties in a reaonable manner.
F. Meeting Liability Expectations- One of educators most important obligations is to
   provide a reasonable standard of care for all students (Mawdsley, 1993). School
   districts should take actions to make certain that administrators, special and
   general education teachers, and other personnel are aware of their care and
   supervisory duties under the law (Daggett, 1995; Freedman, 1995; Mawdsley,
   1993). The following are suggestions to assist administrators and teachers in
   meeting these responsibilities:
       a. • School districts should develop policies regarding standards of care and
            supervision. These policies should be in writing. Because this area of law
            changes rapidly, legal developments should be monitored, and school
            policies should be updated when necessary. Additionally, tort laws vary
            by state. It is extremely important, therefore, that prior to developing
            policies, school district officials should understand tort laws in their
            states.
       b. • The IEP team should address potential safety risks and plan for them
            when appropriate. The IEP should include actions that will be taken to
            minimize these risks. If a precaution is listed in the IEP, it is convincing
            evidence that a school district has taken precautions to prevent student
            injury. If, on the other hand, procedures listed in the IEP are not followed
            and an injury results, the school’s negligence can more easily be proven
            (Daggett, 1995). In addition to members of the IEP team, general
            education teachers and other personnel (e.g., paraprofessionals) involved
            with a student should be aware of any safety issues, potential problems,
            or required supervisory issues.
       c. • Preventive training. Special education and general education teachers, as
            well as administrators and other staff, should be trained in their
            responsibilities under the law. Training may be important in convincing a
            court that a school district acted with care and good faith. Moreover,
            appropriate training will help to ensure the safety of all students, teachers,
            and staff. Such training should stress supervisory responsibilities
            especially in activities which could foreseeably result in an accident or
            injury to a student. Preventive training should be conducted with all
            teachers and support staff such as paraprofessionals, substitute teachers,
            lunchroom supervisors, and bus drivers.
       d. • Don’t rely on waivers. Educators sometimes assume that teachers and
            schools can release themselves from damages by having parents sign
         waivers or releases. This is untrue because parents cannot waive their
         children’s claim for damages (Fischer et al., 1994; Freedman, 1995;
         McCarthy & Cambron-McCabe, 1992). Teachers always have a duty to
         their students to prevent foreseeable injury by providing appropriate
         supervision. Parental releases, waivers, or permission slips do not relieve
         teachers or schools of liability if they fail to discharge their duties in an
         appropriate manner. According to Fischer et al. (1994), such waivers may
         be useful for public relations purposes, but will not relieve teachers or
         school officials of possible liability for negligence.
     e. • Keep thorough records. The importance of record keeping cannot be
         stressed too much. Anecdotal records can be crucial in liability cases.
         Whenever possible, records should include the signatures of witnesses.
         Table 2 is a example of a behavior incident record. Administration,
         supervisory personnel, and parents should be notified of any situations
         that could result in liability claims.
G.

				
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