Tort of NegligenceTeacher negligence is a risk that needs to be taken seriously by all adults in the educational setting. It is critical that educational leaders are consistently and correctly educati
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Tort of Negligence
Teacher negligence is a risk that needs to be taken seriously by all adults in the educational setting. It is critical that educational leaders are consistently and correctly educating their staff and others responsible for the supervision and safety of students of the potential risks of negligence. From the perspective of a principal or preschool administrator, give one example of potential negligent teacher behavior in the classroom and the steps or policies that can be created to manage the risk. Additionally, describe how you might share with a colleague or staff the legal duties educators have in order to maintain a reasonably safe learning environment. If you are sharing personal experiences, please change names of people involved. Scenarios gathered from blogs and articles are also welcome.
Tort of NegligenceTeacher negligence is a risk that needs to be taken seriously by all adults in the educational setting. It is critical that educational leaders are consistently and correctly educati
Chapter 10 Tort Liability and Risk Management Thomas J. Graca* * Thomas J. Graca (J.D., Southern Methodist University; Ed.D., Texas A&M University at Commerce) is Vice President, Planning and Development, Eastfield College, Dallas County Community College District, Mesquite, TX Introduction This chapter addresses tort liability and risk management in the public school context. Although the particular context of public education creates particular challenges and issues, tort law in the education context is much like tort law in any other context. The concern of tort law is redressing injuries caused by another—either intentionally or merely negligently. The central principles of tort law are not controversial, or really even in any dispute. When a person injures another, the injured person should be compensated. When someone damages the property of another, the owner of the property should be compensated. The only controversies are the measure of compensation, and the types of injuries or damages that should be compensable. This chapter is different from many of the other chapters in this text in that this chapter has less of an emphasis on seminal cases. In many of the other areas of education law, there are particular influential cases with which a knowledgeable educator should be familiar. For example, Brown v. Board, Tinker v. Des Moines, or Lemon v. Kurtzman are part of the foundation of most school law courses. Of course, there are many significant cases in the law of torts and even in the law of torts as it relates to schools in particular. However, the significance of these cases is that they represent (usually slight) shifts in the law. The focus of this chapter is not on these slight shifts, but instead on introducing tort law in the education context as a foundation for further study. If you desire deeper study after reading this chapter, you should next consult a text that focuses on your state in particular. Focus Questions Is tort liability in educational settings a blessing or a curse? How can school leaders better manage the risk of tort liability in their schools? How can school leaders better educate teachers and other education professionals about issues of tort liability and risk management? In what ways do a school’s ongoing relationships with parents affect tort liability? Key Terms Assumption of risk Breach of duty Cause-in-fact Comparative negligence Contributory negligence Duty of care Foreseeability Liability waivers Negligence Proximate causation Risk management Sovereign immunity Statutory immunity Tort Case Study Girl Fight Russellville Middle School Principal Paige Littleton was well aware of the ongoing feud between eighth-graders Buffy McGuire and Kathy Harris. Kathy and her group of friends consistently ostracized Buffy, excluded her from conversations, and, as one teacher said, “did their best to make life miserable for Buffy.” Buffy’s mother had complained numerous times to Principal Littleton about Kathy’s bullying and mistreatment of her daughter. Paige had spoken with both girls, referred them to the counselor, and made every effort to keep peace between the girls. However, three days before spring break, Buffy and Kathy began fighting between third and fourth period in a hidden alcove out of sight from teachers in the hallway. At some point in the fight Kathy used a 5-inch pocketknife, and Buffy was seriously injured. Buffy was hospitalized for her injuries and “trauma.” Principal Littleton learned later the same day that Buffy’s parents had retained legal counsel. Leadership Perspectives School safety has evolved into one of the most important duties facing campus and district leaders regardless of grade level, school size, or location. This duty is reflected in ISLLC Standard 3C, which calls for school leaders who promote and protect the welfare and safety of students and staff. However, it is simply impossible to protect students and teachers from all potential harm. Why would the fight between two eighth-grade girls at Russellville Middle School be different? Principal Littleton and at least a few teachers were aware of the conflict between Buffy and Kathy and that several “blind spots” existed that made hallway supervision difficult. However, Principal Littleton did not know that Buffy and Kathy were going to fight that day, or that Kathy had a small knife. Because Buffy was hospitalized, one can assume a police report was filed. Tomorrow’s headline in the Russellville Tattler may read “Student Knifed at Russellville Middle School. Principal says she ‘Didn’t Know of Danger.’” Yet Principal Littleton did know of the ongoing feud. She had been informed by Buffy’s mother of bullying by Kathy and her friends, and at least one teacher had knowledge of the ongoing ostracism and exclusion of Buffy. So, can Buffy sue the school district? Certainly—anyone can sue at just about any time. ISLLC Standard 3C Kathy has likely committed the intentional tort of battery (and possibly a crime). It is conceivable that Buffy and her parents could sue Kathy and her parents. It is also conceivable that Buffy could win a judgment against Kathy. Kathy’s parents may have few assets, and winning a lawsuit means nothing if you can get no money from the defendants. So, Buffy most likely will not waste her time suing Kathy. Buffy and her parents, however, definitely want to get some money out of someone to pay for her medical bills, pain, suffering, perhaps lost wages, and likely some other losses as well. Who else is there to sue? The district, of course. Can Buffy recover from the school or district? Do schools and districts have any liability for injuries suffered by one student at the hands of another? If school districts do have liability for student-on-student violence, the relevant tort would likely be negligence. There is an array of state and federal district court decisions regarding this very question. And the decisions are not consistent. Moreover, student-on-student violence invokes a variety of legal theories of recovery against school systems—many outside of the law of tort. However, we limit our discussion here to the negligence theory. The concept of tort liability is one way society ensures that local school boards affirmatively meet their responsibility to provide policy designed to promote security within the school community. For example, in the case study “Girl Fight,” Principal Littleton met with the two girls, referred them to the school counselor, and was presumably aware of the difficulty in supervising students posed by the school facility. On a larger scale, Principal Littleton and the Russellville Board of Education would need to consider not only the hallways and alcoves of Russellville Middle School, but other areas of the school facilities such as the parking lot, playgrounds, and classrooms when making policy to promote utility of the school community. One way to meet this responsibility is risk management. This chapter attempts to present tort liability and risk management within the utilitarian concepts of security and equity. Isllc Standard 3C The Law of Torts A tort is a civil wrong that results in personal injury or property damage, the compensation for which serves sound social policy. The word tort is derived from a French word meaning “twisted” or simply “wrong.” A tort is “twisted” because one person or institution has upset (“twisted”) social equity by causing personal injury to another or damaging the economic interests of another. Tort law in the United States is generally a matter of state common law, though it must be noted that there are exceptions. There are state statutes, federal statutes, and federal common law related to torts. However, most tort law is derived and defined as a matter of state common law. Non-etheless, because nearly every American jurisdiction bases its tort laws on the common law of England, most U.S. jurisdictions apply very similar analyses to similar tort cases. School administrators should take special care in consulting the law of their own state in analyzing a tort or would-be tort case. As common law, tort law is generally court-made law, rather than legislature-made (statutory) law. Whereas statutory law evolves when legislatures pass bills into law (bills that are usually signed by the chief executive), common law evolves as courts and judges are confronted with (1) new issues legally distinguishable from existing law, (2) changes in culture (e.g., those created by emerging technologies), or (3) evolving social policy considerations. The common law tradition, unique to the United Kingdom and the former British colonies (such as the United States), recognizes that no system of prewritten “rules” can be justly applied to every potential situation. Therefore, as new or unique tort cases come along, judges write opinions that compare and contrast the facts with similar previously decided cases. The judge must then decide which existing law is most appropriate to the case. This decision is added to the common law. Reported judicial decisions are law. As illustrated in Chapter 2, the common law evolves with every reported court case. As each case is decided, it sets a precedent for future cases in future courts in the jurisdiction. Schools, school systems, individual teachers, and individual administrators could all be either plaintiffs or defendants in tort cases. It is, however, more common for educational institutions and educators to be defendants—the party accused of committing a tort (a would-be “tortfeasor”)—in tort cases. Educators and educational institutions are more likely to be defendants for two reasons. First, higher expectations (“standards of care”) are applied to educators and educational institutions than are applied to students, parents, and other educational stakeholders. As individual professionals and professional systems, educators and educational systems have more expected of them. Second, educators and educational systems are more likely than the general public to have financial resources. A plaintiff might be happy to win a tort case, but the win is made far less satisfying if the defendant has no assets that a court might seize to satisfy the judgment. Negligence By far, the most common tort is the tort of negligence. In common law, definitions are less significant than in statutory, administrative, or constitutional law. Non-etheless, the definition or description posited by renowned Supreme Court Justice Oliver Wendell Holmes in Schlemmer v. Buffalo R. & P. R. Co. (1907) is instructive: Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result. More significant than any definition or description of negligence are the elements of negligence. Although the specific language used to describe the elements and the specific application of the elements varies among American jurisdictions, there is definitely a common pattern. It can be said that generally there are five elements to the tort of negligence: (1) existence of a duty, (2) breach of the duty, (3) cause-in-fact causation, (4) proximate causation, and (5) damages. The elements of negligence are conjunctive, meaning that all five must be satisfied to have the tort of negligence. In explaining the five elements, we will refer to the opening case study “Girl Fight.” Duty The first element of negligence is duty. Humans generally have very few affirmative duties to others. Most of our duties to other human beings are negative duties. The most common are the duties not to engage in behaviors that would cause bodily harm to others or damage to the economic interests (e.g., property) of others. We generally do not have duties to take actions to prevent injuries to others or to prevent damage to others’ economic interests. If one is walking down a street and sees that a piano is about to fall out of a window on someone standing beneath, one does not have a legal duty to warn the person standing beneath. Of course, right-thinking people would likely contend that someone who sees the piano has a social or ethical duty to warn, but there would not be negative legal consequences under the common law of tort for failing to do so. However, there are many examples of “special relationships” that give rise to special (usually affirmative) duties. The relationship between educators or educational institutions and their students is one such special relationship. Educators and educational systems stand in loco parentis (from the Latin for “in the place of the parent”) in relation to the unemancipated minors in their charge. Teachers and administrators owe a great many legal duties to their students. Among these duties is the duty to maintain a reasonably safe environment in which learning can take place. Whether such a duty exists is a matter of state law, but it is very likely that in many states would find such a duty. Regardless, the affirmative duty to provide and maintain a reasonably safe and efficient learning environment is reflected in ISLLC Standard 3C. In the case study “Girl Fight,” there is no question that Principal Littleton had an affirmative duty of care, because the fight between Buffy and Kathy happened during the school day. ISLLC Standard 3C Although educators and educational systems do not have a duty to “shelter a growing child from every possible danger” (Gathwright v. Lincoln Insurance Co., 1985), they do have a duty to take reasonable steps to protect the children in their charge. This duty arises commonly when a child–student suffers an illness or injury, or is in danger of suffering an illness or injury during the school day. Educational professionals have a duty to aid children–students who are injured or in danger of suffering an illness or injury. Breach The second element of the tort of negligence is breach. The element of breach of duty can be satisfied when the would-be tortfeasor fails to live up to her identified duty. The fact of the matter is that when someone or some property is damaged, it is not always someone else’s (or even anyone’s) fault. In most tort cases, the breach is an action, though it could possibly be an omission. In order to be held liable for a tort, a defendant must have taken some action or failed to fulfill some obligation related to the complained-of injury. A teacher/administrator very likely has a duty to provide aid to a student who is in danger of being injured. Imagine that a teacher becomes aware of a student in danger, and that the teacher does, in fact, provide aid to the best of his ability. Say, for example, that teacher directs a student to call the local emergency number, directs another student to go get the school nurse, and then personally intervenes and comes to the aid of the student. The teacher has likely not breached a duty. If the teacher has not breached a duty, he may not be held liable for the tort of negligence. Even if the child is injured or, in the worst case, dies, the teacher who fulfilled his duty to aid the student is not liable—assuming he did not breach some other duty—because he did not fail to fulfill duty. It is only when the teacher fails to fulfill a duty that the breach element is satisfied. The breach occurs when the teacher fails to exercise the care that a “reasonably prudent” teacher in the same situation would exercise. The breach could be either malicious or merely negligent. Examples of malicious breaches might be if the teacher sees Buffy and Kathy fighting, but simply decides that he doesn’t want to get involved, or decides that he doesn’t really like Buffy (doesn’t care if she is injured by Kathy). But most breaches are not malicious; they are merely negligent. Imagine that a student who sees the fight start seeks the aid of a teacher by calling for help and the teacher thinks that the student is “crying wolf,” so he fails to aid the student. Would this be a breach? Maybe. What if the teacher thinks the student is just playing around? Would this be a breach? Maybe. What if, rather than coming to the aid of Buffy, the teacher only tells the students to “knock it off,” returns to his classroom, and calls for an administrator. Would this be a breach? Maybe. You probably find those “maybe” answers less than satisfying. Those actions are breaches if it is determined that a “reasonably prudent” teacher would have exercised better care. Who decides what a reasonably prudent teacher would do? Finders-of-fact (usually juries) get to decide—if the case gets to court. The inquiry into whether particular actions or omissions amount to breach is profoundly fact-intensive. It depends on the specific facts of each particular situation. But the standard is usually the same—the reasonably prudent person, the reasonably prudent teacher, the reasonably prudent principal, the reasonably prudent counselor, the reasonably prudent superintendent, and so forth. Whether the duty was breached—in other words, whether the school violated the requisite standard of care—is a deeply fact-intensive inquiry. Of course, teachers cannot possibly protect students from every possible danger. So, does this would-be “breach” violate the standard of care expected of a reasonably prudent teacher? Given the many peculiarities of this situation, this will likely be a difficult question for a jury to answer. Anyone who has ever worked in a school knows that even if administrators and teachers do everything correctly, fights still happen. So, the fact that there was a fight does not necessarily mean that the standard of care was violated. Whether the duty was breached here will depend on a number of factors. Was the hallway well supervised? Did the administration have any reason to believe that a fight would happen? What did faculty and administrators do when they learned of the fight? Cause-in-Fact Causation The third element of the tort of negligence is cause-in-fact causation. This is also sometimes called “but-for” causation. In order to be liable for the tort of negligence, the action or omission determined to amount to a breach of a duty must be a cause-in-fact of the injury suffered. In other words, the injured person would not have suffered the injury but for the breach. The breach must have been in the chain of events that led directly to the injury. This is a very low standard. The breach must be such that, if it did not happen, the injury complained of would not have happened. Assuming for the sake of argument that the teacher did breach a duty, the next issue is whether that breach was a cause-in-fact of the complained-of injuries. Our hypothetical fight in the hallway provides some examples. Imagine that a jury determines that our teacher—a male coach—breached a duty to Buffy when he merely told the girls to “knock it off” and did not try to stop the fight. The jury determines that if the coach had intervened, Buffy likely would not have been seriously injured. They have determined that “but for the teacher’s breach, Buffy would not have been seriously injured.” But what if the jury decides that Buffy would have been injured even if the teacher breached his duty to make a reasonable effort to separate the girls? Then it cannot be said that “but for the teacher’s breach, the student would not have been injured.” If the jury decides that Buffy would have been injured either way—regardless of the teacher’s breach—then the breach is not a cause-in-fact of her injuries. Even breaches that are very minor or in the distant past could potentially be causes-in-fact of an injury. The principal limitation is chronology. A breach that occurs after the injury is complete can never be a cause-in-fact of the injury. Go back to our teacher who disliked Buffy and gave her no help. Imagine if, when the teacher learned of the incident, Buffy was already seriously injured. The teacher’s breach would then not be a cause-in-fact of Buffy’s injuries, and the teacher could not be held liable for negligence. (I hope the school or school district would take employment action, but the teacher was not negligent—as a matter of law—in her injury.) Although a breach that comes after an injury is complete can never be a cause-in-fact of the injury, not all breaches that come before the injury are necessarily causes-in-fact. Remember the logical fallacy post hoc, ergo propter hoc. Simply because A precedes B, A is not necessarily a cause of B. Even serious breaches of significant duties that precede an injury are not necessarily causes-in-fact of the injury. Proximate Causation It is because the standard for cause-in-fact causation is so low that proximate causation is an additional element to the tort of negligence. If cause-in-fact causation is “but-for” causation (a relatively simple matter of logic), then proximate causation is “legal” causation (a very complex matter of social mores and public policy). Historically, there has been great diversity among the American jurisdictions about proximate causation. For the most part, this diversity has evaporated over the past half century. Proximate causation has been reduced to a single idea—foreseeability. For most American jurisdictions, the test of proximate causation is little more or less than whether the injury should have been foreseeable to the breacher at the time of the breach. Note that the language of that previous sentence again seeks (to the extent possible) an objective answer—“should have been.” It does not ask whether the injury was actually foreseen by the would-be tortfeasor. It asks whether a reasonable person, teacher, or principal would have foreseen the injury. This is another fact-intensive inquiry—the determination of which will be made by the finder-of-fact in a tort case (usually a jury). So, let us continue to assume arguendo that our teacher had a duty to attempt to separate the fighting girls, that the teacher breached the duty, and that the breach was a cause-in-fact of the injuries suffered by Buffy. Would a reasonably prudent teacher have foreseen the injuries? Probably. A reasonably prudent teacher would very likely have foreseen that two students fighting would be likely to sustain injuries without some intervention. Right? Or would a reasonably prudent teacher believe that two young healthy girls would not be able to seriously injure one another? It is probably safe to say that most juries would find the injuries foreseeable—but probably not every jury. This is both the genius of the jury system and a challenge facing those who attempt to predict the outcomes of negligence cases. One can argue that injuries are easily foreseeable when schools fail to fulfill their duty to maintain a safe environment. One can also argue that holding school districts responsible for the malicious actions of students is not sound social policy. If, for example, Buffy and Kathy had no previous history of violence and school officials were unaware of any problems between the young women, then courts would tend to assume that Kathy’s actions were not foreseeable (see Dadich v. Syosset High School, 2000, and Kennedy v. Seaford, 1998, for example). In this particular case, however, Principal Littleton knew of the animosity between the two girls, teachers had remarked that Kathy made every effort to make life miserable for Buffy, and Buffy’s parents had complained to the principal. So, was the fight foreseeable? Probably. But, was it foreseeable that Kathy would seriously injure Buffy with a weapon? Maybe not. Damages The fifth and final element of the tort of negligence is damages. Damages are the physical or property injuries complained of. Even if the first four elements are met, there is no negligence unless there is a cognizable injury. The goal in calculating damages is to compensate victims for their losses. Damages associated with physical injuries tend to be things such as medical bills, pain and suffering, and lost wages (if the victim is employed). When the physical injuries are especially serious (e.g., in the case of death), damages can increase very rapidly, including things such as loss of future wages, loss of companionship, emotional distress, and even funeral expenses—over and above the damages already described. In exceptional cases, additional “special” damages could be appropriate as well. In the case of property damages, damages tend to be cost of repairing, refurbishing, or replacing the property damaged. Of course, in exceptional cases, additional “special” damages could be appropriate. This fifth element is both a prerequisite to judgment and the measure that will be used to determine the amount of a judgment. If there are not any cognizable damages, there is no negligence. As we consider our case study, damages are obvious here. Physical injury, suffering, pain, lost wages, and so forth are all reasonable and measurable damages. Buffy has a couple of types of damages. Buffy experienced physical injury. She certainly incurred medical expenses and might also have experienced pain and suffering. Whereas the medical expenses will be easily calculable, a jury will potentially have greater difficulty in calculating the monetary value of Buffy’s pain and suffering. If there are cognizable damages (and the first four elements are met), the calculation of the damages will also serve as the basis for the amount of a judgment that a court will enter. In terms of recovery, the damages are almost always exclusively monetary. Many tort victims desire to recover damages other than money—often orders requiring the tortfeasor to remedy the cause of the injury. These types of Table 10-1 Elements of the Tort of Negligence Duty Educators have an affirmative duty to take reasonable steps to protect children in their charge while at school or at school-sponsored events regardless of location. The legal question is: Was there a duty of care? Breach A failure to exercise the affirmative duty of care that a reasonably prudent teacher, counselor, or principal in the same situation would exercise. Would a similarly placed reasonably prudent teacher (for example) have acted in the same way? Cause-in-fact The injury would not have occurred but for the breach. Would the student not have been injured but for the failure to act in a “reasonably prudent” manner? Proximate cause The injury or danger “should have been” foreseeable by a reasonably prudent teacher, counselor, or principal. Damages An injury must result from the breach for the tort of negligence to be considered. For example, even if a principal had a duty of care, breached the duty of care, did not act in a “reasonably prudent” manner, and should have foreseen that the situation was fraught with danger, if no injury occurs there is no tort of negligence. damages are nearly always denied. However, it is worth noting that most negligence cases will not even get this far—or even as far as the courthouse steps. Most negligence cases are settled between the parties, and actual litigation is merely a threat that plaintiffs use to spur settlement. At the settlement stage, using the “extramonetary” damages just described is an excellent strategy for both educational professionals and school systems. This is usually the biggest question mark in a negligence case. How will the jury calculate damages? The minimum amount a jury may determine in any negligence case is $1. Historically, the sky has been the upper limit. Multimillion-dollar judgments in death actions—especially those where the victim is a child—are not uncommon. In the past decade, so-called tort reform (discussed again later in this chapter) has attempted to place statutory upper limits (usually called caps) on the amount of negligence damages. The future has yet to write itself in regard to statutory caps. These five elements of the tort of negligence are summarized in Table 10-1. Linking to Practice Do: Educate teachers and others responsible for the supervision and safety of students on the five elements of negligence. Know state law and school district policy regarding supervision, transportation, and monitoring of students. Educate teachers, coaches, and others on these laws and policies. Develop affirmative policies for supervision of students during the school day and at extracurricular events. Educate teachers, coaches, and others on the rationale for these policies. Defenses to Negligence Even if a plaintiff is successful in proving all of the five negligence elements, the plaintiff will still have to overcome any of the (so-called “affirmative”) defenses to the tort of negligence. In the educational context, four defenses arise more often than any others: contributory or comparative negligence, assumption of risk, sovereign immunity, and statutory immunity. In other words, even if a court finds that a defendant has committed negligence, the defendant will not be held to answer for negligence if the defendant successfully establishes the applicability of the defense. Contributory or Comparative Negligence The first defense is contributory or comparative negligence. Contributory negligence and comparative negligence are mutually exclusive defenses—the applicability of either is dependent on the laws of the particular jurisdiction. The rationale and purpose for each is the same—to limit the ability of a plaintiff to collect from a defendant for negligence in situations where the plaintiff himself was also negligent. So, if the plaintiff shares the blame, then the plaintiff’s ability to recover will be limited. The contributory negligence theory is not widely available. Where it is available, the contributory negligence approach requires that if a plaintiff is at all negligent, the plaintiff will take nothing. Contributory negligence is an absolute defense. If the defendant is 99% responsible for the injury and the plaintiff is only 1% responsible, the plaintiff still takes nothing. Any negligence at all on the part of the plaintiff is a bar to her recovery. This defense is not available in most cases in most jurisdictions. The defense that is more likely to be available in your jurisdiction is the defense of comparative negligence. Comparative negligence seeks to proportion financial responsibility based on the percentage of the damages attributable to each party’s negligence. If the plaintiff proves that the defendant had been negligent (duty, breach, cause-in-fact, proximate cause, and damages) and the defendant proves that some conduct on the plaintiff’s part had contributed (cause-in-fact and proximate cause) to the damages, a jury would need to determine the percentages of responsibility. Imagine that a jury had determined that the plaintiff sustained $10,000 of damages, that the defendant was 65% responsible, and that the plaintiff was 35% responsible. In such a case, the judgment a court would likely enter in the plaintiff’s favor would be only $6,500—even though the damages were $10,000. The percentage of the damages attributable to the plaintiff’s conduct is subtracted from the total damages the plaintiff incurred. The exact application of the principle of comparative negligence varies greatly from state to state. It is not uncommon for a state to use a comparative negligence theory with a contributory negligence wrinkle. They add the wrinkle as the plaintiff’s responsibility reaches 50%. In many jurisdictions, when the plaintiff is either “at least 50%” responsible or “more than 50%” responsible, the contributory negligence wrinkle kicks in, and the plaintiff is completely barred from any recovery. If we reexamine our $10,000 damage finding with this wrinkle, we can see the following. If the defendant is 65% responsible and the plaintiff is 35% responsible, then the plaintiff recovers $6,500. But if the defendant is 35% responsible and the plaintiff is 65% responsible, then the plaintiff recovers $0. If the defendant is 51% responsible, the plaintiff takes $5,100; but if the defendant is only 49% responsible (a difference of only 2%), the plaintiff takes nothing. In education contexts, recall that schools and education professionals are more likely defendants than plaintiffs. And students and parents are more likely plaintiffs. When defendant schools and defendant educators seek to utilize the contributory or comparative negligence against a plaintiff student, another issue arises. It is more difficult to prove that a child has been negligent than an adult. The proximate causation element (defined primarily as foreseeability) is more difficult to prove against a child. Children are held to a lower standard of care than their adult counterparts. In fact, most jurisdictions prohibit children under the age of 7 (the “age of accountability”) from ever being found negligent. Teachers and administrators in early childhood education, therefore, will almost never be able to assert contributory or comparative negligence against a child–plaintiff. Children between the ages of 7 and 14 are presumed to be incapable of negligence. However, the courts recognize that particular 7- to 14-year-old children are capable of negligent behavior. That is, particular 7- to 14-year-old children do have the cognitive and psychological intelligence to foresee the legal consequences of particular actions. Therefore, it is possible for a plaintiff to overcome the presumption of incapacity with a defense of contributory or comparative negligence against a 7- to 14-year-old child’s negligence case. Adults and children over the age of 14 are presumed capable of negligence. Therefore, most high school teachers and administrators will have the defense of contributory or comparative negligence available to them when a student alleges negligence. Assumption of Risk The second common defense to negligence is the defense of assumption of risk. Even if a defendant is liable for the damages associated with negligent behavior, the defendant may assert that the plaintiff assumed the risk of the defendant’s negligence. The defendant will either assert that the plaintiff expressly assumed the risk or that the plaintiff made a conscious choice to assume the risk. Much as in contributory negligence, the context of the schoolhouse creates particular challenges for defendant schools and defendant educators who wish to assert the defense of assumption of risk. Schools and educators frequently seek to obtain express assumptions of risk from both students and their parents prior to potentially dangerous activities—for example, athletic competitions, travel by motor vehicle, activities off the premises of the school, and other situations that could potentially pose a risk beyond what would commonly be expected in an educational setting. They seek the express assumption of risk through documents called variously liability waivers, hold harmless, consent, indemnity, and other labels. (Each of these labels has a distinct legal effect varying somewhat by jurisdiction—indemnification is a profoundly distinct concept from waiver of liability—but the effect that schools and educators desire with each is the same.) So, do these documents have any legal effect? It depends. No doubt more than one educator has been told that his liability waiver isn’t worth the paper it’s printed on. That’s probably not true. But it’s also not true that simply because one signs a waiver he cannot recover. It’s probably more likely to be true that a liability waiver signed only by a minor child truly is worthless. A liability waiver is roughly analogous to a contract. In the United States, minors are not liable in the law of contract. Depending on your state, the age of majority is either 17 or 18. A minor cannot enter into a binding contract. Because these liability waivers are either contracts or very closely analogous to contracts, a minor cannot be a party to one. However, a minor’s parents certainly can be. So, if the child’s parents agree to the waiver, does it have effect? Presumably, yes. However, if the agreement is contrary to public policy, it will have no effect. Because contract (like tort) is primarily a matter of state law, the policy desires of various branches of the state governments—including the courts themselves—come into play. The primary policy consideration is how much responsibility schools and educators should have for protecting the children in their charge. To what extent should schools be responsible for protecting children from themselves and their parents? If a parent signs a particular liability waiver that is not in his child’s best interests, should schools and educators still not be responsible for their actions—because of the special relationship among schools, educators, and children? It is a deeply complex question of social values and competing political theories. School counsels, for the most part, continue to encourage the use of these waivers—and it probably is good advice, regardless of the legal effect the waivers will actually have. In the case of an implied assumption of risk, the analysis is almost exactly the same. Defendant schools and educators will likely have a very difficult time attempting to assert as a defense that a child herself assumed the risk. Because of children’s minority, they simply cannot assume a risk. It is more likely that their parents can implicitly assume a risk on a child’s behalf. However, in the grand scheme of things, it is still not very likely—because of both the policy considerations discussed earlier and the difficulty in obtaining evidence of a parent’s implied consent. Sovereign Immunity For most of human history, each government has had but one sovereign—a monarch under any of dozens of potential titles. The ones most common to western Europe and the United Kingdom (our legal forbear), of course, were queen and king. In the United States, our sovereign is not a queen or king—or any one person for that matter. We—“the people,” as they say—are sovereign. The president of the United States is not our sovereign. The people of the United States collectively are sovereign. Such is the defining characteristic of any form of republicanism or democracy. Sovereigns are immune to lawsuits in their own courts. There are a number of potential ways of justifying sovereign immunity. The first is simply a matter of practicality: Why would someone with the power of creating law allow you to sue her in her own courts—why would a queen create a system of law that allowed herself to be sued? It is simply a matter of political power. In the United States, we do not have a queen. The United States itself—as established by the people—is the sovereign. The United States has the power of law. Why would it create laws in such a way that we could be sued? Another potential explanation is the utilization of resources and economic policy. If the United States could be sued for any of its negligence, the potential exists for an untoward number of negligence actions (founded or not) to be pending against the United States in the federal courts. This would create an unreasonable burden on the government to fund courts, U.S. attorneys, and the like. A third potential explanation is monetary policy. If the United States prints its own money (which it does), then the judgments against it could unreasonably affect the amount of U.S. dollars in existence, which could have a definite effect on currency valuation. The doctrine has a long history in the United States—going back at least as far as Alexander Hamilton’s The Federalist 81: “It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” There are many other potential explanations and justifications for the immunity of the sovereign (see, for example, Giuttari, 1970). Our federal system has complicated matters even further. Not only is our nation sovereign, each of the states is also sovereign. That is, the people of each state are collectively sovereign of their state. The United States is a “big sovereign” made up of many “little sovereigns.” In a similar way, each state—as a sovereign—is immune. The governor of Idaho is not sovereign, but Idaho is. Sovereign immunity is a relevant defense for schools: Most schools are in some way a part of state government, and each state is sovereign. The exact system of organization that a particular state has chosen will determine the exact applicability of the doctrine. However, the doctrine has applicability in all 50 states (though to a profoundly lesser extent in California, Illinois, and Pennsylvania). It protects school systems (districts, boards of education, county school boards, and the like) and individual schools from tort liability. It does not protect individuals (teachers, principals, and superintendents are not sovereigns). Even if a school is negligent, it can generally be said that the school is not responsible for compensating the victims of its negligence. However, the doctrine is not absolute. The principal limitations on the defense of sovereign immunity are state tort claims acts and public policy considerations. Tort claims acts are statutes enacted in all 50 states that allow the state to be sued. (There is also a Federal Tort Claims Act.) Essentially the tort claims acts define certain situations in which the state consents to being sued in its own courts. These situations generally involve situations where the state is acting like a private citizen or private business—rather than acting like a sovereign. The most obvious situation in which a school or district is acting like any other business is in reference to its land and buildings. Owning land is not the kind of activity that is reserved nearly exclusively to government. Private citizens own land, and companies own land. Owning land creates duties on the part of land owners to those individuals who are visitors on that land. So, schools and school districts will be less likely to be protected by the doctrine of sovereign immunity in “premises liability” actions. For example, land owners have a duty to properly maintain their premises, a duty to warn visitors of potentially dangerous situations, and the like. Because public school children spend the vast majority of the school day on land and in buildings owned by the school district, this is a significant exception to the doctrine of sovereign immunity. Public policy considerations are the other significant exception. Even though the doctrine of sovereign immunity might technically apply as a legitimate defense to a district’s or school’s negligence, there could be a countervailing interest that trumps the immunity. Such policy considerations are particularly likely to come into play in the school setting. Because children are among the most vulnerable of our citizens, the state’s policy of desiring safe environments in which children can learn might prevail over the state’s desire to remain immune from lawsuits. This part of the law—where significant, independent policies come into conflict with one another—is one of the places where judges have the most power in our system. There are few bright lines in policy. This is definitely one of the gray areas where educational, social, and political value systems will come into conflict. Statutory Immunity You will recall from earlier in this text that statutes are one of the principal sources of American law. Statutes are those points of law created by elected legislatures and approved by elected executives. Many states have enacted statutes that grant (various levels of) immunity from tort lawsuits to educators. There is not any consistent historical or legal ideology based on which these states have granted this immunity to teachers. The grant of statutory immunity is simply a policy decision made by the legislatures of many states. For example, in some states educators are shielded from liability when acting within the scope of their duties, exercising judgment or discretion, not using excessive force to discipline a student, or operating a motor vehicle. Why would these states grant immunity to educators? The explanations are diverse. Some include the desire to attract and maintain highly qualified teachers, to give teachers greater authority over their classrooms, to minimize the costs of litigation, to reform the tort system one step at a time, and to simply insulate teachers from the consequences of their own negligence. All of these explanations (as well as most others not listed) are policy decisions. The immunity need not exist at all, and where it does exist, it could be taken away. The grant of immunity is a conscious choice that a state may take or not take. The immunity could be absolute, or it could cover only certain actions. It could be very narrow, very broad, or anywhere in between. It could be total immunity, immunity beyond a certain dollar amount, or immunity only up to a certain dollar amount. The Paul D. Coverdell Teacher Protection Act of 2001 The Paul D. Coverdell Teacher Protection Act of 2001 (named after the late Democratic senator from Georgia who had introduced the act in a prior Congress) was included in the “No Child Left Behind” education bill. The Teacher Protection Act states that if teachers and principals follow school rules and act within the scope of employment responsibilities, they will not be subject to liability. The act does not protect teachers or principals when operating a motor vehicle or when engaged in criminal misconduct, gross negligence, reckless misconduct, or a flagrant indifference to the safety of the individual harmed. It also states that tough standards should be applied before punitive damages are allowed, and that teachers and principals should be liable only for their “fair share” of fault for harm and not for injuries caused by others. Tort reform Tort reform is similar in some ways to statutory immunity in the sense that it is intended to reduce the amount of tort litigation. Tort reform involves legislation that restricts remedies to negligence or that caps damages awards, especially punitive damages, typically to $100,000. Advocates of tort reform argue that it lowers liability insurance premiums and prevents plaintiffs from receiving windfall judgments. Opponents contend that tort reform denies plaintiffs the recovery they deserve for their injuries (Garner, 2006). Table 10-2 A Summary of Defenses to the Tort of Negligence Contributory–comparative negligence The plaintiff (student, parent, etc.) contributed to or shares in the blame for the injury. Sometimes not applicable if the child is 7–14 years old. Assumption of risk The student made a conscious choice to assume the risk inherent in the activity. Particularly appropriate for competitive athletic participation. Sovereign immunity A state is sovereign and immune from suit. As an agent of the state, sovereign immunity may protect the school district, but not individuals (teachers, counselors, principals, etc.). Generally does not protect school districts from failure to remediate faulty equipment, inherently dangerous situations (ice on the sidewalk, for example), or failure (for example) to properly maintain a gymnasium ceiling and roof. Statutory immunity Some state laws grant immunity to individuals (teachers, counselors, principals) from suit. Varies widely by state. The federal Paul Coverdell Act also provides for statutory immunity. Table 10-2 A Summary of Defenses to the Tort of Negligence Even with absolute immunity, a teacher, principal, or superintendent can be sued. The immunity is simply a defense that the educator will assert. Moreover, asserting the defense does not necessarily mean the defense will be successful. The immunity can be challenged on any number of policy or other grounds. Having immunity does not mean that educators should cease exercising an appropriate duty of care. The immunity simply creates another hurdle over which a student–plaintiff must jump in order to be successful in a negligence action. The immunity is an attempt to lessen the likelihood of a teacher being sued, and if he is sued, to make it more difficult for him to be found liable. The four affirmative defenses to the tort of negligence are summarized in Table 10-2. Intentional Torts Intentional torts are another class of torts. There are principally four intentional torts that could be confronted in the educational context: (1) battery, (2) assault, (3) false imprisonment, and (4) intentional infliction of emotional distress. What distinguishes the intentional torts from the tort of negligence is the requirement of a particular state of mind on the part of the tortfeasor—intentionality. It is not possible to accidentally assault someone, or unintentionally commit a battery. Battery A battery is “an intentional act that causes harmful or offensive bodily contact” (e.g., Etheredge v. District of Columbia, 1993). The first part of a battery is the commission of an intentional act. The batterer must commit the act intentionally—however, the batterer need not intend the outcome, or even intend the particular victim. Intent can be transferred from an intended victim to the actual victim. The second part of the intentional tort of battery is harmful or offensive bodily contact. The batterer must either actually touch the victim’s person (punch, hit, shove) or cause someone or something else to touch the victim’s person (pushing someone else or tossing an object). One’s person is usually extended beyond one’s physical body to include clothing, things one is carrying, etc. The batterer need not have intended the harm or offense; she need only have intended the touch. It is relatively easy to determine if a contact is harmful. Physical injury is usually what is required. Offensive contact might be a little bit more difficult to predict or recognize. Juries have found many seemingly innocuous touches to have been offensive. When the touches are directed at children, juries tend to be even more likely to find the touch to have been offensive. Again, a “reasonable person” standard is applied. Would a reasonable person have taken offense at the touch? Educators should be careful whenever touching another person in the school context—especially touching children. Of course, there are plenty of other potentials for battery in the schoolhouse. Whenever any object gets thrown—even if not “at” anyone—the potential for a battery exists if someone finds his way into the path of the thrown object. So long as the act was intentional, the intent follows the act. Assault The most common law definition of assault is: An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (b) the other is thereby put in such imminent apprehension. (Restatement Second of Torts, 1974, § 21) In other words, assault is like an attempted battery or a threat of a battery. As a sort of attempted battery, an assault would be when one tries to make harmful or offensive bodily contact, fails to do so, but does create an imminent apprehension of harmful or offensive contact. As a threat of a battery, an assault would occur whenever one threatens to make harmful or offensive bodily contact and puts the victim in imminent apprehension of the contact. How do we know whether the victim was in “imminent apprehension” of harmful or offensive bodily contact? Well, we have to ask whether a reasonable person in the same situation would have been in imminent apprehension. And a jury will decide. Does the issue of assault occur often in educational settings? It depends on whom you ask. Some say that at any large school there are numerous assaults every day—among students, between teachers and students, and even among assistant principals and students and teachers. Whether this assertion is true or not, it is rather rare that one of these would-be assault victims brings the matter to the courthouse. It would be much more likely that the school’s internal disciplinary procedures (discussed elsewhere in this text) would remedy the situation to the victim’s satisfaction. Non-etheless, educational leaders should be aware of the potential for liability under the assault theory. False Imprisonment The third of the intentional torts relevant to the educational setting is false imprisonment. Admittedly, the intentional tort of false imprisonment is only a very rare issue in public school law. Because the issue does arise on occasion, it is worthy of a brief introduction. False imprisonment is a situation where one person intentionally confines another in a fixed space for an unreasonable period of time without legal justification. Do schools and educators imprison students? Yes—all the time. However, not every confinement is “false.” Schools and educators are legally justified—in fact, often obliged—to confine students. We confine students to particular plots of land, buildings, and even particular rooms within buildings. During the school day, this confinement is justified. It is one of the jobs of school systems to keep students in the place they are supposed to be—so that children can learn. We even use confinement as a disciplinary tool—with “timeout” areas (and in the recent past with “timeout boxes”). This is not false imprisonment. The most likely situation in which a school district or educator might be accused of false imprisonment is outside of the school day. In early childhood and elementary school settings, this might be in a situation where an unauthorized person has come to pick up a child after the school day, and the school refuses to release the child. In middle and high schools, it would more likely occur in situations where educators confine student movements at football games, dances, and the like. In general, so long as the educator is acting in an “educator” role—that is, in loco parentis—the educator is legally justified in confining the child in reasonable spaces for reasonable periods of time. Would it be reasonable for an early childhood teacher to confine a 5-year-old child in the school building until it could be determined if “Uncle Walt” is really authorized to take the child home? Of course. It would be derelict for the teacher to do anything else. Would it be reasonable for a middle school principal to keep her students locked up in an inner room of the school building—maybe even against their parents’ wishes—after school hours but during a severe tornado warning? Probably. Would it be reasonable for a high school assistant principal to contain a group of students in the grandstand at a football game as a fight is breaking out in the parking lot? Sure. In all three situations, the educator is acting in the interests of safety and security. The educator is acting just as a reasonable parent would in the same situation. Schools and educators would have to act in an extremely unreasonable way in order to be liable for the intentional tort of false imprisonment. So long as educators and schools are acting reasonably and in the best interests of the children, it is very unlikely that their confinements would be found to be anything other than legally justified. Intentional Infliction of Emotional Distress In tort law generally, emotional or psychological injury is not compensable unless it accompanies physical injury. Intentional infliction of emotional distress is an exception to this general rule. The tort is reserved for situations in which a defendant has behaved so maliciously that the “extreme outrageousness” of the conduct leads us to believe that the defendant intended nothing other than intentionally interfering with the plaintiff’s peace of mind. The bar to proving intentional infliction of emotional distress is very high. This intentional tort is reserved only for the most extreme situations. Linking to Practice Do: Caution teachers about pushing, shoving, or throwing objects at students. This seems like common sense, but in the sometimes emotionally charged school day, a recalcitrant child can provoke even the most patient of adults. Be very careful in administering corporal or physical punishment (see Chapter 5). Never administer physical punishment that is specifically forbidden by state law or school board policy. Think carefully about the situation, the age and sex of the student(s), and the rationale before holding students against their will. Do Not: Hesitate to investigate questionable behavior (see Chapter 11). Ignore or tolerate verbally abusive teachers, coaches, or others associated with the school. This also seems like common sense, but unfortunately such behavior is sometimes tolerated. Managing the Risk of Tort Liability The financial risks associated with tort liability are significant. Central to the roles of school leaders is the task of managing these risks. This does not mean that school leaders are (or should be) expected to eliminate all potentially risky situations from the schoolhouse. Eliminating all tort risk would be impossible, and even if it were possible, it would likely not be desirable. Education is a risky business. Think about it—we put upwards of 2,500 adolescents in some high school buildings. This fact alone—even if there is expert supervision in the safest buildings on the planet with the best-intentioned of children—is a dangerous situation. Although the sheer numbers may not be as large in middle and elementary schools, the danger is no less great. This dangerous situation is made worse by increasing child–adult ratios, deferred maintenance on buildings, and children whose intentions are sometimes less than pure. Moreover, the educational outcomes that we desire require that we infuse even more danger. We put scissors into the hands of children and corrosive chemicals into the hands of adolescents—all in between transporting them on increasingly busy and dangerous roads in aging school buses. The task of risk management in such a situation is daunting. And the stakes are no less great. Non-etheless, school leaders are charged with managing these risks. These risks are managed through (1) insurance policies, (2) social control polices, and (3) facility inspection and maintenance. Insurance Insurance is a very highly regulated industry in all U.S. jurisdictions. The regulation of the expenditure of public funds on insurance is likely even more highly regulated in your state. In most school districts, insurance—if it is a part of the district’s risk management plan at all—is purchased at the district level. It is most unlikely—probably unheard-of—that individual campuses within a system would purchase their own insurance policies. One area where school districts are most likely to purchase insurance is for transportation. Motor vehicle insurance is likely a necessity for most school districts. In terms of managing tort risks, so-called liability insurance is almost always advisable and is usually required by state statutes. It is not uncommon for districts to also purchase policies that protect the district’s investment in its own vehicles (collision or comprehensive). In addition to insurance that school districts might purchase, it is becoming increasingly common for individual educators to purchase various types of liability policies. In addition to liability policies that might be available directly from insurance companies or through professional insurance brokers or agents, teacher unions, professional associations, and even school systems and districts could (and do) offer liability protection to teachers, administrators, and even school board members. These individual policies often will provide for both the amount of a settlement or judgment against the individual and the costs of legal representation. If one is considering purchasing an individual liability policy, she should be advised to read the policy carefully to ascertain exactly the protections that she is purchasing. Social Control and Strategic Supervision Social control policies are the rules, regulations, and practices that have been designed to control the movement, behaviors, and actions of students. These policies are usually compiled into a code of student conduct. A code of student conduct usually contains a list of rules for student behavior and the punishments or sanctions for failure to follow these rules. In 2007, over 95% of public schools reported that codes of student conduct were in place (Robers, Zhang, & Truman, 2010). Social control policies can also include so-called target-hardening practices such as metal detectors, security guards, security cameras, and locked doors. Strategic supervision plans are designed to provide consistent and effective supervision of students, especially in areas of the school where the potential for injury is increased. Examples may include hidden alcoves as in our case study, playgrounds, dressing rooms, and laboratories. Territoriality considers control over the surrounding area by the use of physical attributes that delineate space and express ownership. School administrators cannot be expected to provide security in surrounding neighborhoods, but it is important to establish control in a rational way that seems to make sense to most people. Social control policies, strategic supervision, and territoriality are absolutely necessary not only for effective teaching and learning, but also to decrease the risk of the tort of negligence. Facility Inspection and Management Campus leaders are responsible for inspecting and maintaining their campus buildings. Even if these tasks have been delegated to a professional maintenance person or engineer, the responsibility is still the principal’s. Although it would not be appropriate for most principals to check the gauges on the boiler every hour or tighten every gas valve in the chemistry lab, principals should be personally involved in inspection and maintenance. The role of the principal in facility maintenance and inspection is an executive role. In addition to the regular management of staff who coordinate the daily inspection and maintenance, the principal should plan and supervise major infrastructure updates, should walk through the facilities daily, and should personally coordinate the master facility plan. The past two decades have seen a great deal of deferred maintenance in public buildings. School buildings are no exception. Thus, the next few years will likely see an increasing number of large facility enhancement projects—both as a result of the deferred maintenance and as a result of the increasing role of technology. When these major facility projects are undertaken, it must be the job of the school principal to coordinate them. Invariably—even if undertaken during the summer—these projects temporarily displace people and services. Likewise, the projects likely create seriously dangerous conditions during construction. Unfortunately, the “do not enter” and “danger” signs that are usually more than sufficient in office buildings usually do not deter children and adolescents in the least. Generally, temporary barriers need to be constructed to keep curious students out. Even if the construction foreperson says that the signs are enough, you know the work being done and you know your students—the call is yours. Summary Tort law is not a fun topic. Nobody likes talking about getting sued. However, the lack of joy in the topic makes it no less important. A single serious avoidable injury on a campus has the potential of ending a principal’s career. So, although it is certainly true that no one wants to see a child or adolescent injured, you also want to keep your job. If you have not yet been motivated to take tort liability and risk management seriously, knowing that your job is on the line should do the trick. Managing the risk of negligence is hard, intellectually taxing work. Your efforts will likely not be valued too terribly highly by the teachers in your building. Here’s what they’ll say after you leave the room: “Oh, she’s just afraid of getting sued; if she wasn’t such a scaredy-cat, maybe we’d be able to get something done here instead of wasting all this time on goofy safety garbage.” It’s not a compliment. But it is your job. A principal who can create a “culture of safety” on her campus will go a long way toward becoming a successful long-term principal. Connecting Standards to Practice Into the Danger Zone Sharon Grey had arranged a meeting with Riverboat High School athletic director Blanche Barnhart, Principal Tara Hills, and school district attorney Roger Garcia. All the participants knew that the purpose of the meeting was to consider the injury to Lucy Overstreet. Coach Barnhart started the meeting with a brief background summary. Riverboat High School has a deep swimming pool used for interscholastic diving competition. The high school also has a racing pool used by the swim team for competitive racing. The racing pool is three and a half feet deep at each end. On the deck in front of each of the six swimming lanes in this pool is a starting block standing 18 inches above the water level. In competitive meets, participants in the various races typically stand on the starting block and, when the starter horn sounds, dive into the water. In some specific races, however, participants start the race already in the water. With this background, Principal Tara Hills added her knowledge regarding Lucy Overstreet. Lucy had demonstrated excellent swimming skills and as a 14-year-old freshman had tried out for the swim team. Unlike many of the freshman trying out for the team, Lucy had never swum competitively and was at a disadvantage from the moment she stepped into the pool area. But her natural ability presented a great upside, and she was placed on the JV team by head coach Ron McKay. Soon after being selected for the team, Lucy and her parents informed Coach McKay that she had little if any experience diving from the starting blocks and that she had a deep-seated fear of injury from diving into the shallow water. Coach McKay instructed two veteran swimmers to help her practice diving off the deck of the diving pool into deep water. Assistant Coach Tracy observed her dives and stated that Lucy needed more practice. Her teammates also remarked that Lucy had gone in too deep. Coach McKay apparently heeded this advice and scheduled Lucy to participate in two relay events. In these events the first swimmer starts in the pool, swims two or four laps of the pool and “touches” the second swimmer, who dives into the pool from the starting blocks. At the third meet of the year with archrival North High School, Coach McKay advised Lucy that she could help the relay team be more competitive if she swam third rather than first. Lucy informed Coach McKay that she was afraid of diving off the blocks, did not know how to dive off the blocks, and begged him to allow her to continue to swim first. Coach McKay refused and told Lucy that if she did not move to the third position, she would be off the swim team (Lucy’s view) or would be off the relay team (Coach McKay’s view). She was also not given the opportunity to start her leg of the race from the pool deck rather than the starting blocks, which is permissible by state activity association rules. Two relay members were instructed to help her practice. During Lucy’s second practice dive, she hit her head on the bottom of the pool, was knocked unconscious, sustained a severe concussion, and fractured two vertebrae in her neck. If not for the quick thinking of one of her teammates, Lucy would most likely have drowned. Fortunately, Lucy’s prognosis appears good but she will need several months of physical therapy, suffers short-term memory loss from the concussion, and will miss most if not all of her freshman year because of her injuries. School attorney Garcia spoke. “As you know, Lucy’s parents have sued the district and Coach McKay for negligent training, supervision, and control of the swim team members to protect them adequately against diving accidents. The suit claims that Coach McKay breached his duty of care to adequately protect members of the team against diving accidents. The breach was cause-in-fact of the injury, and because it was foreseeable, the breach is a proximate cause of Lucy’s injuries. The suit asks for the district to cover all of Lucy’s medical bills including physical therapy, provide her with homebound instruction, and pay Lucy $500,000 for pain and suffering.” Attorney Garcia stated, “My first reaction was that Lucy had assumed a risk when she went out for the swim team. In fact, her parents did sign the activity association model assumption of risk form. However,” he continued, “the activity association has an addendum to the bylaws that specifically addresses diving from starting blocks into shallow water. The addendum notes that diving into water less than 5 feet deep is dangerous and that 95% of swimming injuries occur in water 5 feet deep or less. The manual states: ‘Even an experienced diver can be seriously injured by diving improperly … or diving from starting blocks without proper training and supervision.’” Attorney Garcia continued, “The addendum than provides specific instructions on how swimmers are to be certified to dive from starting blocks. I have some concerns that these procedures were not followed.” He looked at each of the administrators. “I would like for you to draft a recommendation to the superintendent on whether or not to settle with Lucy’s parents.” Question Argue for or against a settlement with Lucy’s parents. Clarify the legal question. Cite applicable ISLLC standards, the elements of the tort of negligence, and ethical principles to support your answer. Are all of the elements of the tort of negligence present? There is an inherent risk in any sport, and students are frequently injured. Not every injury is severe, and the vast majority of injuries do not require missed playing time, much less hospitalization and physical therapy. It is also true that not every injury is foreseeable. But, was Lucy’s injury foreseeable? If you assume Coach McKay breached his duty (and I am not saying he did), was the breach cause-in-fact of Lucy’s injury? Besides assumption of risk, are there other defenses to the tort of negligence in this case? Write a memorandum to the superintendent or school board president with your response.
Tort of NegligenceTeacher negligence is a risk that needs to be taken seriously by all adults in the educational setting. It is critical that educational leaders are consistently and correctly educati
Chapter 11 Teacher Employment, Supervision, and Collective Bargaining Introduction Schools are a people-intensive business, and school districts regardless of size allocate the majority of available funding (sometimes as much as 85–90%) to salaries and benefits for employees. Parents and other stakeholders expect the best teachers for their children. They also demand sound stewardship of this public trust. Consequently, recruiting, selecting, and supervising employees is an important, some might say the most important, role for school leaders. At the same time, teachers and other school employees are protected by a variety of employment laws. Sound stewardship requires an awareness, understanding, and acceptance of these laws and policies. Effective school leadership also requires that they be fairly applied in order to create cooperative environments. The basic ethical and legal principles concerning employment, teacher supervision, and collective bargaining that apply to most states are emphasized in this chapter. These laws vary, sometimes substantially, from state to state. Therefore, leadership candidates and instructors are encouraged to obtain and use state law to guide discussions in this chapter. Focus Questions How can employment policy and practice be evaluated to determine its impact on school culture? What protections from capricious or arbitrary employment decisions should public school teachers enjoy? Are these protections too little or too much? How and when should the performance and behaviors of teachers be documented? Should teachers be allowed to bargain collectively with a school district? What should they bargain for? Key Terms Adverse employment decision Affirmative action Bona fide occupational qualification (BFOQ) Collective bargaining Continuing contracts Disparate impact Disparate treatment Equal Employment Opportunity Commission (EEOC) Immorality Incompetence Insubordination Just cause Nexus principle Performance appraisals Probationary contract Remediation plan Title VII Union Case Study Discrimination? Jason Whitehead glanced across the table at the face of Corinne Lodge, the board chairperson. Corinne was obviously unhappy. He looked around the table. The other six board members seemed in varying degrees to share Corinne’s displeasure. This was Jason’s first year as superintendent of Pine Valley School District (PVSD), a relatively small school district in Johnson County. Easy access to interstate highways and a major metropolitan complex made Pine Valley a thriving community. Pine Valley, unlike many neighboring districts, faced continuing increases in enrollment. Over the years, the population had grown, and in that time the teaching staff had almost doubled. Corinne said, “I’m concerned about some of the allegations in this letter. Mr. Whitehead, I would like to see this investigated.” Several other board members nodded in agreement with Corinne’s statement. Two days before the regular October school board meeting, Jason, the board president, and each of the board members had received identical letters signed by a majority of the members of the Pine Valley Teachers Organization. The letter read, in part, “For the past several years the PVTO has remained silent as the superintendent and his administrative team consistently demonstrated favoritism and discrimination in employment decisions. Administrators routinely ignored the recommendations of faculty search committees and hired friends, friends of friends, and relatives to teaching positions in the district. Teachers and others who were considered friends of the administration were given preferential treatment, greater access to the more desirable teaching assignments, and access to steps on the career ladder. Administrators routinely ignored reports of misconduct, including at least three reports of sexual misconduct and several reports of teachers using school property for personal use when the reports involved their friends. At the same time teachers who were critical of administrative decisions, reported suspected misconduct, or protested student disciplinary decisions were routinely placed in undesirable teaching assignments, received low performance reviews, and suffered adverse employment decisions including termination. While PVTO will remain dedicated to the children in our classrooms and schools, we will no longer stand quietly by while unfair labor practices, questionable decisions regarding hiring/firing/demoting teachers, and favoritism are common practice.” Jason was fairly sure that board policy was in compliance with state and federal law. But, he had to admit to himself that he had heard many of the same concerns from community members and a couple of area superintendents he had met. Jason agreed with the board. A good review of employment practices was required. Leadership Perspectives Education is a people-intensive business. Consequently, considerable portions of public funds generated for public education are allocated to teacher, staff, and administrator salary and benefits. In fact, it is difficult to imagine a school district where a majority of the total expenditures of the district are not encumbered by salaries and benefits. ISLLC Standard 3B requires school leaders to obtain, allocate, align, and efficiently utilize human, fiscal, and technological resources. In the case study “Discrimination?” it is this standard about which the teachers’ organization is expressing their concern. In addition, Jason is legally required to ensure that Pine Valley employment policy is in compliance with federal and state law. Consequently, Jason Whitehead’s concerns about past employment practices at Pine Valley may be well founded. ISLLC Standard 3B ISLLC Standard 6 Human resources managers and those responsible for recruiting, selecting, and supervising employees have a particular duty to treat all current and potential employees fairly, in an ethical manner, and without bias (Rebore, 2011). The responsibility to treat employees fairly is embedded in ISLLC Standards 2A, 3A, 3B, 3E, 5A, and 5C. In the case study “Discrimination?” it is the part of school district practices concerned with acting with integrity, with fairness, and in an ethical manner that the PVTO is apparently challenging. In other words, a significant portion of the teacher organization, or at least the most influential members, do not believe that teachers are being treated fairly at Pine Valley School District. Jason Whitehead has been challenged by the PVTO and the board of education to evaluate these practices to ensure that the employment practices at PVSD meet the legal requirements outlined in ISLLC Standard 5. In addition, Jason is being challenged to evaluate district policy and practice to ensure these policies meet the ethical requirements outlined in ISLLC Standard 5B. ISLLC Standards 2A, 3A, 3B, 3E, 5A, and 5C ISLLC Standard 5 ISLLC Standard 5 ISLLC Standard 5B Ethical considerations are particularly important in human resources management (Rebore, 2011). People, regardless of job description, often face difficult decisions where the lines between right and wrong, ethical and unethical are blurred. Individuals with supervisory roles in public schools are particularly vulnerable because their decisions (or failure to decide) affect everyone, including students, parents, and employees. This is the essence of ISLLC Standard 5B, which calls for school leaders to model self-awareness, reflective practice, transparency, and ethical behavior. To meet this standard, Ronald Rebore (2011) provides three foundations for the importance of ethical considerations in human resource management: ISLLC Standard 5B People are in a constant state of becoming either a better person and professional or a person who gradually loses his or her integrity. Rebore believes that it is often the culmination of small judgments and decisions over time that determines the sort of person and human resources manager one becomes. Those responsible for human resource management (including principals and associate or assistant principals) have a definitive and lasting impact on the school district as an institution. Any action that shows preferential (or prejudicial) treatment to certain people is contrary to the development of personal integrity and to the proper operation of the school district. If the allegations made by the Pine Valley Teachers Organization are true, past and possibly current administrators have violated all of Rebore’s ethical foundations of human resource management. They may have also violated several federal laws as well as the basic concept that teachers should be treated fairly simply because they are human beings. Jason Whitehead may be faced with a difficult task. Past practice can at times be difficult to challenge, especially if this practice is deeply ingrained in the school culture. The utilitarian principles of John Stuart Mill, however, may provide guidance in such an undertaking. Utilitarianism and Employment Practices J. S. Mill, a student of Jeremy Bentham, first published his concepts of utilitarian ethics in 1861 as a series of three essays. In Mill’s view, all action should be taken for the sake of some end (Mill, 1998). More importantly, this action should be taken with a clear and precise concept of the purpose of the action. In other words, policy and the reasons for the policy should be designed with a specific purpose in mind before implementation. The question is, of course, what should this purpose be? According to Mill, the purpose of actions should be to diminish pain and create the most happiness. Mill adopted the word utility from his mentor Jeremy Bentham to describe this concept. Mill defines utilitarianism (or the greatest happiness principle) as follows: “Actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness” (p. 55). In Mill’s view of utilitarianism, the rightness or wrongness of actions should depend on the foreseeable, or expected, outcomes of the action. In short, all action should be taken with the expected intent to promote happiness. For this discussion of J. S. Mill’s utilitarian ethics, the greatest happiness principle can also be viewed as “the greater good.” In other words, the purpose of action should be to promote the greater good. It is important to point out that in this view of utilitarianism, the standard for greatest happiness is not the policy maker’s own happiness, but rather the greatest amount of overall happiness. This is the directive rule of Mill’s utilitarian ethics. In this view, employment policies (all policy that affects employees, including leave policy, work rules, salaries and benefits, supervision models, and investigations of misconduct) should not be designed to produce happiness for a board member, an administrator, a search committee, or the teachers’ union. Rather, the policy should be designed to promote the greater good among all concerned. This is an important point. Utility is not about what continually makes some group of people happy. Rather, it is about policy and practice that is designed to find a balance between the needs of the organization for efficiency and order and the needs of the employees for satisfaction in their work (a sense of community and individual importance). Thus, utilitarian ethics does not require that actions produce happiness for everyone, but rather the greatest happiness for all concerned. In fact, Mill recognized and articulated the need for negative consequences in his writing as an important factor in the utility of a society. For example, the use of a professional growth plan to improve a teacher’s deficiency or the proper investigation of allegations of employee misconduct may be viewed as negative by the affected individual, but promote the greater good of the school community. Part of the utilitarian concept, however, is how these negative consequences should be applied (see Bentham’s views of the role of government outlined in Chapter 6). ISLLC Standard 2D ISLLC Standard 3C ISLLC Standard 2A School cultures that encourage collaborative efforts as outlined in ISLLC Standard 2A require that all involved view the school, or school district, as a society of equals. A society of equals may “only exist on the understanding that the interests of all are to be regarded equally” (Mill, 1998, p. 78). In fact, cooperative school cultures are characterized by feelings that the best interests of others are also in one’s own best interest. These feelings not only improve social ties; they also serve as a catalyst for continued healthy growth in school culture. In other words, cooperative school cultures cannot exist where the interests of all concerned are not the primary foreseeable outcome of all action. ISLLC Standard 2A ISLLC Standard 2C For example, in the case study “Discrimination?” Jason Whitehead and the board of education would ideally view employment policy and practice as contributing to the greater good of students and teachers in PVSD. Jason Whitehead has been charged by the board of education and challenged by the teachers’ organization to fairly evaluate employment policy and practice. It is easy to argue that the purpose of employment policy should be to promote the greater good. How, though, can the greater good be determined? ISLLC Standard 2A Mill identifies legal rights, moral rights, desert (what is deserved), contracts, impartiality, and equality as six concepts of justice congruent with utilitarianism or the greater good. A short description of each of these concepts and an evaluation model follows: Legal rights: It is thought unjust to deprive anyone of any legal right that they possess. Moral rights: It is possible for some law or policy to violate the moral rights of individuals. These laws or policies are unjust. Desert: It is thought unjust for someone to receive something that they do not deserve. This concept works for both good (receiving an award or acknowledgment, for example) and a bad (a reprimand, for example) that are not deserved. Contracts: It is unjust to break voluntary agreements with others. Impartiality: It is thought unjust to be inappropriately partial. Equality: Justice requires equality, except when inequality is more beneficial overall. These concepts of justice can be organized into a table to assess the relative utility of school district or campus culture (Table 11-1). For example, in the case study “Discrimination?” Jason Whitehead has been challenged to objectively evaluate the employment policy and practices at PVSD. Part of this evaluation and non-judgmental data collection could include an analysis of the relative utility of employment policy and practice. In this example, each of the six concepts of justice consistent with utility could be given a score. This rough total Table 11-1 An Assessment of School Utility High Utility (3 Points) Medium Utility (2 Points) Low Utility (1 Point) Legal rights • All employment policy meets established legal rights. • Legal rights are honored and consistently enforced. • Employment decisions are clearly Non-discriminatory. • All employment policy meets established legal rights. • Legal rights are usually honored and enforced. • Some employment decisions seem discriminatory. • Policy meets established legal requirements. • Legal rights are generally ignored or applied only when convenient. • Overt discrimination in employment. Moral rights • Employment policy respects the moral rights of all individuals. • Discrimination based on race, sex, national origin eliminated. • Employment policy respects most of the moral rights of individuals. • Some discrimination based on race, sex, national origin apparent. • Employment policy is applied inequitably. Moral rights are respected only when necessary. • Discrimination “hidden” within employment decisions. Deserts • Employment decisions based on objective criteria. • All awards and punishments are objectively applied in all cases. • Most employment decisions are based on objective criteria. • Awards and punishments are generally deserved. • Employment decisions are usually based more on whom one knows or personal contacts. • Awards and punishments preferential. Contracts • All contracts, written and verbal, are honored. • Written contracts are generally honored. Verbal contracts are sometimes broken. • Written or verbal contracts have little or no meaning. Impartiality • Employment decisions are impartial. • Benefits and rewards are distributed with impartiality. • Most employment decisions are impartial. • Benefits and rewards are generally distributed with impartiality. • Partiality is not only common but accepted practice. • Partiality is apparent in distribution of benefits and rewards. Equality • Employment policy is equitable, except where inequalities are beneficial to the greater good. • Employment policy is generally equitable. • Some inequalities are not for the greater good. • Employment policy is not equitable. • Inequalities serve self-interest rather than the greater good. Scoring guide: 15–18 points, high-utility school culture; 11–14 points, medium-utility school culture; less than 10 points, low-utility school culture. could then be used to rate the relative overall utility of the district. If problem areas exist, then the data can be used as justification for changes in policy and practice. The matrix and the data collected could also be used to justify current practices. If this is the case, other deeper issues—ones that are not really related to employment policy—may exist between the union membership and the board of education. Consequently, Jason could use a communication model such as “Resolving Issues of Conflicting Interest,” outlined in Chapter 3 and Chapter 12, to develop a better understanding of the apparent underlying issues. It is important to note that a similar utility model could be adapted to a variety of policy analysis questions. Examples could include student discipline practices, the allocation of funding for instructional supplies, or equal access to extracurricular activities for boys and girls. Legal Issues in Employment In decidedly different language, Mill’s six concepts of justice congruent with utilitarianism guide much of the employment law in the United States. To this end, the U.S. Congress has passed a variety of laws to address discrimination in employment practices. The most significant of these laws is Civil Rights Act of 1964, particularly Title VII, 42 U.S.C. § 2000e (P.L. 88-352). Title VII prohibits discrimination in employment practices on the basis of race, color, religion, gender, or national origin under any federally assisted educational program. The act places an affirmative duty on school districts to discover and eliminate discriminatory practices. The Equal Employment Opportunity Commission (EEOC) was created by this act. The EEOC enforces most employment discrimination laws. Teachers and other school district employees must first pursue EEOC remedies before they may file suit under Title VII. The EEOC has an excellent website at www.eeoc.gov. The Office for Civil Rights (OCR) also enforces employment discrimination laws, including all civil rights laws and the Americans with Disabilities Act. OCR also has an excellent website at www.ocr.gov. Basically, two types of discrimination are defined by Title VII: disparate treatment and disparate impact. Disparate treatment applies when an individual claims that he or she was demoted, fired, passed over for a promotion, or not hired because of race, color, sex, religion, or national origin. In order to prevail under Title VII, the teacher would need to demonstrate (1) that she is a member of a protected class and (2) that she was terminated from her employment because of her protected class. If the teacher is a member of a protected class, the burden of proof shifts to the school board to demonstrate a valid reason for their decision. For example, a black, female Missouri teacher with 10 years of experience was dismissed by her school board (Shanklin v. Fitzgerald, 2005). In this case, the board was able to demonstrate that the teacher was dismissed for legitimate reasons (failure to improve in specific areas) and not because of her race. In another example, an experienced female high school basketball coach applied for the head boys’ basketball coaching position when the head coach resigned (Fuhr v. School District, 2001). A selection committee recommended a less qualified male applicant. The case involved the denial of a promotion (assuming of course that moving from head girls’ coach to head boys’ coach is a promotion, which may or may not be true) to a member of a protected class. The burden of proof shifts to the board to demonstrate that the female coach was denied the promotion because of a valid reason, not because of her sex. Do you see why? Disparate impact occurs when a facially neutral policy has an unequal effect on minority groups. The parameters of disparate impact as the term relates to employment practices were defined by the U.S. Supreme Court in Griggs v. Duke Power Co. (1971). In this case, an employer required a high school diploma or passing an IQ test as a precondition of employment. However, the company could not show that the requirement was reasonably related to job performance. The Court held that Title VII does not prohibit an employer (a school district, for example) from using objective criteria. In fact, objective criteria may well be the best defense against discrimination. Please see Ricci v. DeStefano (2009) and Lewis v. City of Chicago (2010) for examples of disparate treatment and disparate impact in employment. Key Federal Discrimination Legislation In addition to Title VII, the U.S. Congress has passed a variety of laws designed to specifically address different kinds of discrimination. These laws protect a wider group of individuals (protected class) and make it easier for these individuals to demonstrate discrimination. Table 11-2 includes a summary of the key federal legislation that affects educator employment. Several issues germane to educational leadership, which include sexual harassment, hostile work environment, ethnic or religious discrimination, drug/alcohol use, and the Americans with Disabilities Act Amendments, are discussed in more detail. Sexual Harassment Harassment on the basis of sex in the workplace is a violation of § 703 of Title VII. Sexual harassment is defined under two legal theories: quid pro quo and hostile environment. Quid pro quo occurs when submission to sexual conduct is used as a basis for employment or refusal to submit to sexual conduct results in an adverse employment decision (EEOC, 1999, 2002). The acquiescence to the request or refusing the request is not the point. The fact that the demand was made rises to the level of sexual harassment. A hostile environment occurs when unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature have the purpose or effect of unreasonably interfering with work performance or create an intimidating, hostile, or offensive working environment (EEOC, 1999, 2002). Title VII does not prohibit all conduct of a sexual nature in the workplace, which of course would be impossible; only unwelcome sexual conduct that rises to the level of a hostile environment or quid pro quo harassment is illegal (EEOC, 1999). The law also prohibits retaliatory actions for reporting or refusing to submit further to the harassment. For example, a retaliatory claim could include discharge, demotion, transfer to a less desirable position or location, or denial of a promotion that could be traced to the reporting of unwelcome sexual conduct or a refusal to submit to sexual conduct (EEOC, 2002). An employer is responsible for acts of sexual harassment between employees where the employer (or supervisory personnel) knows or should have known of the conduct unless immediate and corrective action was taken (EEOC, 2002). The unwelcome component of sexual harassment is defined by the recipient. What may start as welcome sexual attention may quickly become unwelcome. To overcome the difficulty sometimes inherent in defining unwelcome (or when actions become unwelcome), courts use the “reasonable person” standard. In other words, if sexual conduct looks unwelcome, sounds unwelcome, and the reaction of the recipient appears to mean that it is unwelcome, then it is unwelcome. Isolated incidents of offensive sexual conduct or remarks generally do not create an abusive or hostile environment. However, a single incident that is especially egregious or shocks the conscience (i.e., a sexual assault or fondling) may rise to the level of sexual harassment (EEOC, 1999). Same-Sex Sexual Harassment Sexual orientation harassment in the workplace was not the “principal evil” Congress intended to address in Title VII. Nevertheless, in Oncale v. Sundowner (1998), the U.S. Supreme Court extended Title VII to include same-sex sexual harassment by stating, “Sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.” Oncale has been applied by several courts to same-sex harassment (see Mota v. University of Texas, 2001, as an example). Sexual stereotyping has also been found to be illegal (Price Waterhouse v. Hopkins, 1998). Price Waterhouse would, for example, prevent the discharge of a male teacher for effeminate characteristics or of a female employee for being overly masculine. In mixed-motive cases with both good and bad reasons (gender stereotyping, for example) intertwined, the burden of proof shifts to the school board. The board must demonstrate that it would have made the decision anyway, based on the good reason, even if it had not allowed the bad reason (sexual stereotyping) to play a role—and so no violation has occurred (Desert Palace v. Costa, 2003). Hostile Work Environment In addition to sexual harassment that results in a hostile work environment, Title VII prohibits verbal and written conduct based on race, ethnic origin, or religion that creates a hostile work environment. The U.S. Supreme Court in Burlington Industries v. Ellerth (1998) makes it clear that supervisors are legally responsible for a failure to prevent and remediate a hostile work environment if the supervisor had reasonable notice of the harassment and failed to take adequate corrective measures (see Henderson v. Walled Lake, 2006, as an example). As Rebore (2011) points out, the harassing conduct does not have to occur in person. Technology such as text messaging, e-mail, Twitter, and social media make it possible for harassing conduct to occur at anytime or anyplace. Thus, abusive e-mails, text messages, Twitter posts, or social media messages that create a hostile work environment are a violation of Title VII. School officials should be aware of their responsibility to prevent abusive or hostile language or messages in any medium. A well-written employee policy that clearly states that the district will not tolerate abusive or hostile language or messages at school or in electronic formats at anytime may be the better part of valor. Ethnic or Religious Discrimination or Harassment Title VII prohibits workplace discrimination based on the real or perceived religious or ethnic background of employees (EEOC, 2005b). Employers (school boards) may be liable for harassment or discrimination by supervisors, teachers, other school personnel, or non-employees. School districts are required to make reasonable accommodations for religious practices unless doing so would create an undue hardship for the district. Reasonable accommodations may include leave for religious observances, time or place to pray, and ability to wear religious garb (a hijab, for example). Drug-Free Workplace The federal Drug-Free Workplace Act of 1990 (41 USC Chapter 10) requires public school districts to certify that the district will provide a drug-free workplace by establishing a drug-free awareness program to inform employees about (1) the dangers of drug abuse in the workplace; (2) the district’s policy of maintaining a drug-free workplace; (3) any available drug counseling, rehabilitation, and employee assistance programs; and (4) the penalties that may be imposed on employees for drug abuse violations. It is important to note that the Drug-Free Workplace Act does not require termination for an employee who tests positive for drugs or alcohol at school. In fact, the act specifically mentions drug and/or alcohol counseling as an option. But, the act does support a school board decision to terminate an employee who does test positive. Americans with Disabilities Act It is illegal to discriminate against a qualified individual on the basis of disability. School districts are required to make reasonable accommodations for individuals with disabilities. The Americans with Disabilities Act is enforced by the federal Office for Civil Rights. The Americans with Disabilities Amendments of 2008 (42 U. S. C. 12102, Section 3, effective January 1, 2009) significantly expanded the definition of disability to mean “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” An individual meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited under the act because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. The burden of proof shifts to school districts in cases where an employee faces an adverse employment decision and claims a disability. The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures such as (1) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (2) use of assistive technology; (3) reasonable accommodations or auxiliary aids or services; or (4) learned behavioral or adaptive neurological modifications. Affirmative Action and Occupational Qualifications Affirmative Action Title VII, along with other employment laws, attempts to make hiring practices neutral and does not require that school districts favor one person over another. However, a voluntary affirmative action plan to remediate past discrimination in employment may not be unlawful reverse discrimination if a district can demonstrate that (1) a statistical disparity exists between race or sex for a particular job category, (2) the district was (or is) guilty of past discrimination, (3) efforts do not unnecessarily penalize the rights of non-minority applicants, and (4) efforts are designed to terminate when the goals of the plan have been achieved (Alexander & Alexander, 2012). Because affirmative action is based on race or sex, courts apply a strict scrutiny standard. Strict scrutiny requires that the district would need to show that the affirmative action plan is necessary to achieve a compelling state interest. The plan would also need to be narrowly tailored to achieve this goal. These standards have become very difficult to meet. Bfoq Compliance with federal non-discrimination laws requires an understanding of the term bona fide occupational qualification (BFOQ). A BFOQ is a requirement essential or necessary for performing a particular job. Whether a bona fide occupational qualification is allowed depends on whether the job qualification is reasonably necessary and narrowly fashioned in the job description. For example, a job qualification for a bilingual English-/Spanish-speaking third-grade teacher in an elementary school with a population of English language learners may be reasonable and narrowly fashioned. However, a job description calling for only teachers of Hispanic origin may not be reasonable. Similarly, it seems reasonable to specify a female for a position that requires the supervision of a girls’ locker room (Rebore, 2011). Race, marital status, religious affiliation, and family plans are never BFOQs. The only exception is that a private religious school may require that applicants profess a particular faith. Requesting preemployment information that discloses or tends to disclose an applicant’s sex, race, ethnic origin, or religion likely constitutes evidence of discrimination (EEOC, 2005a). Licensure and Contracts The criteria for teacher and administrator certification and licensure are set by state law and regulations. Currently all states have enacted laws establishing the certification or licensure requirements of professional public school employees, including the approval of the content of teacher education programs. Each state may establish any number of requirements for teacher and administrator licensure that presumptively qualifies a person to teach, including educational requirements, test scores, United States citizenship, good moral character, or any other conditions considered important. Courts are supportive of these requirements as long as the requirements for licensure are not arbitrary. State certification test have been upheld by the courts when the state can demonstrate a reasonable connection between the knowledge and skills measured on the test and the duties of the teacher (see, for example, Association of Mexican-American Educators v. State of California, 2000). All states empower the licensure issuing agency (usually the state board of education) to revoke teaching license for a variety of reasons. Courts are reluctant to overrule state mechanisms for the revocation of teaching licenses. For example, a Florida appellate court refused to substitute its judgment for a decision by the Florida Practice Commissions to revoke the certificate of a teacher for sending sexually oriented e-mail to seventh-grade students (Wax v. Horne, 2003). The terms and conditions of teacher and administrator contracts are established by state law and regulation. Public school employees must agree to the legal conditions and abide by whatever requirements and stipulations are set forth by the state legislature or state board of education. In general, the legal authority to issue contracts to individuals to serve the needs of the school district is delegated to local boards of education. This is an important point. In most cases only boards of education have the authority to enter into valid employment contracts, discipline employees, or terminate contracts. A contract is binding on both parties. Contracts can be changed or voided with the agreement of both parties. A breach occurs when one party fails to meet the terms of the contract. When one party breaches a contract, the other party is entitled to damages (money) in proportion to the damage done by the breach. Most, if not all, states allow boards to legally breach teaching contracts because of declining enrollment or financial needs. This type of breach, usually called reduction in force, is designed to allow boards of education to meet changing financial or enrollment situations. Reduction in force requires a Non-discriminatory policy. Courts usually do not second-guess these decisions as long as the board does not discriminate, uses some objective criteria, and follows state law, any negotiated agreements, and board policy. For example, a school district would be hard pressed to justify a policy that allowed for the layoff of veteran or tenured non-minority teachers before non-tenured minority teachers (Wygant v. Jackson Board of Education, 1986). Types of Contracts There are four general types of public school employment contracts: (1) at-will, (2) probationary, (3) term, and (4) continuing. At-will employment is usually reserved for non-certified personnel such as custodians, maintenance workers, cafeteria workers, clerks, or secretaries. Teachers are sometimes employed on an at-will basis for supplemental duty assignments such as junior class sponsor. At-will employees generally have an expectation of continued employment for the duration of the pay period. Termination during the pay period (e.g., monthly for custodians, or for the school year for a chess club sponsor) may require sufficient evidence to support the decision. However, if the district waits until the end of the pay period, few if any due process requirements are necessary (Kemerer & Crain, 2010). It would seem that little if any documentation would be necessary to terminate a term contract. This may not be the case. As Kemerer and Crain (2010) point out, a term employee who is terminated may elect to challenge the non-renewal and could, for example, file a complaint with the EEOC claiming that refusals of sexual favors factored into the decision. In these cases, the supervisor should have documentation related to poor job performance or some other reason unrelated to the allegation of quid pro quo sexual harassment. A probationary contract is normally issued to inexperienced teachers or teachers new to a school district. Probationary contracts are for 1 year. A probationary contract can be terminated at the end of the contract year if the district believes it is in the best interest of the district. According to Kemerer and Crain (2010), the non-renewal of a probationary teaching contract is generally the easiest negative employment decision to defend. Again, probationary contracts can be terminated at the end of the term for any good reason (but never for a bad reason). The district only has to comply with state statutes regarding notice that the contract will be terminated at the end of the contract period. For example, in Texas probationary teachers must be notified no later than 45 days before the last day of instruction under the contract (TEA 21.103). In Missouri, probationary teachers must be notified of non-renewal on or before April 15 (RSMo 168.126). If challenged, administrators should be prepared to defend their non-renewal recommendations. However, the burden is clearly on the teacher to establish that the district had an impermissible motive (bad reason), not on the district to demonstrate a valid (good) reason (Kemerer & Crain, 2010). Termination of probationary contracts during the term of the contract requires formal due process requirements. Districts must generally give the probationary employee an explicit directive to improve or change his or her conduct and an opportunity to comply with the directive (Kemerer & Crain, 2010). For example, Missouri state law outlines the following due process requirements for probationary teachers during the term of the contract: The board of education through its authorized administrative representative, must (1) provide the teacher with a written statement clearly identifying areas of deficiency or incompetence, (2) furnish the teacher an opportunity to correct the problem and (3) give the teacher 90 days to demonstrate improvement. If improvement satisfactory to the board of education has not been made within 90 days of the receipt of the notification, the board of education may terminate the employment of the probationary teacher immediately or at the end of the school year (RSMo 168.126). Term contracts are for specified lengths of time. Term contracts are usually reserved for superintendents and experienced principals. Some states, such as Texas, allow term contracts for up to 5 years; other states, such as Missouri, allow term contracts for up to 3 years. Like probationary contracts, term contracts can be non-renewed with sufficient notice at the end of the term of the contract. Termination during the term of the contract naturally requires more careful attention (Kemerer & Crain, 2010). Continuing contracts (called tenure contracts in some states) were initially created by state legislatures as a job security device to protecting against arbitrary termination by local school boards. Currently 19 states continue to use the term tenure, whereas a number of states use continuing contract terminology (Frey, 2010). A continuing contract bestows a property right to continual employment in the district until the employee retires, resigns, dies, is terminated, or agrees to a change in contract status (Kemerer & Crain, 2010). Most states require a probationary period of 2 to 5 years’ continuous service in a district. School boards have wide latitude in deciding whether to grant initial tenure as long as decisions are not discriminatory (Frey, 2010). Employees must meet all the requirements of the job to maintain the position. For example, failure to complete certification requirements, failure to renew a certificate, or failure to obtain an adequate number of continuing education credits would be reason to terminate the employment of a teacher in a district. The U.S. Supreme Court has upheld the termination of a continuing contract teacher because of a willful failure to earn continuing education credits as required by board policy (Harrah Independent School District v. Martin, 1979). Teachers who have earned a continuing contract cannot be dismissed except by good cause as set forth by state law. It is a common misunderstanding that continuing contract teachers cannot be terminated for instructional inadequacies. This is not necessarily true. But, the burden of proof shifts from the teacher to the board of education to demonstrate a valid reason, rather than the teacher being required to demonstrate that the board used a “bad” or discriminatory reason for the decision. Consequently, extensive documentation is often required in defending decisions to terminate (or recommend termination of) a continuing contract teacher (Kemerer & Crain, 2010). Tenured or continuing contract teachers do not have a right to a particular teaching assignment, to a choice of schools within a district, or to indefinite employment. Teacher tenure has long been a hot-button issue, and it should not be surprising that the concept of continuing contracts is being reexamined in several state legislatures around the county. In 2010, for example, 11 states modified at least some part of their tenure laws (Frey, 2010). The use of 1- to 3-year term contracts for teachers in the place of continuing contracts is an emerging trend in some states, including Texas. In general, it is most likely safe to assume that the decision of non-renewal of a term contract should be supported by documentation of deficiency or incompetency on the part of the teacher in question (Kemerer & Crain, 2010). The importance of documentation is considered in the next section. Teacher Supervision State law (and school board policy) requires the evaluation of teaching performance. ISLLC Standards 2D, 2F, and 2I reflect this requirement by calling for school leaders to supervise instruction, develop the instructional capacity of staff, and monitor and evaluate the impact of the instructional program. Teacher evaluation instruments typically contain job-related criteria such as instructional methodology, lesson planning, meeting the needs of varied learners, alignment of instruction and student assessments with state tests, and positive classroom management skills. Areas other than teaching may also be included. These areas, called interpersonal and organizational relationships, may include criteria such as relationships with fellow teachers and administrators, following board policy and campus rules, and cooperative relationships with parents. However, criteria used in the evaluation of teaching performance should be rationally related to the job of teaching. What is important is that the behavior be validly related to the requirements of the job and that it can be observed. In short, only observable behaviors related to the job are fair game for evaluation (Rossow & Tate, 2003). ISLLC Standards 2D, 2F, and 2I Documentation of Performance Proper documentation is essential in the justification of employment decisions. Kemerer and Crain (2010) list several types of documentation: (1) oral directives, (2) notes to file, (3) performance appraisals, (4) specific incident memoranda, and (5) summary memoranda. Oral directives are simple verbal directions. Oral directives may be appropriate for minor transgressions and for first-time offenders. The downside is that the lack of documentation limits their usefulness later in a non-renewal or termination defense. Notes to file, the second form of documentation, can help alleviate this drawback. Notes to file that accompany oral directives can assist in recalling specific times, dates, and conversations regarding certain behaviors. These notes can help establish a pattern of non-compliance or misbehavior that can later be used in a more formal memorandum or reprimand. Notes to file, however, should stick to the facts and nothing but the facts. ISLLC Standard 3E Performance appraisals include the documentation required by state law and school board policy. There are generally two forms of teacher performance appraisal: formative and summative. Formative evaluations usually consist of classroom observations, analysis of lesson plans, and observations of teacher interactions with students, parents, colleagues, and others. Summative evaluations consist of the summaries and conclusions from formative evaluations and are used to justify continued employment or termination/non-renewal of employment. Performance appraisals are often standardized formats mandated by state law or school board policy by which the performance of all teachers is periodically evaluated. The frequency is determined by the type of contract and school board policy or state law. A specific incident memorandum applies to a specific incident or a pattern of incidents that is sufficiently serious that a written record should be made. Regardless of the circumstances, these memoranda should contain several essential elements. Kemerer and Crain (2010, pp. 2-4) explain these elements as follows: Use district or campus letterhead to emphasize the importance of the correspondence. Do not forget the date. Describe the nature of the allegation, the nature of the administrator’s investigation if one was required, dates and times of specific incidents, and the dates on which the supervisor has spoken with the employee regarding the allegations. Set forth a findings of fact. State conclusions regarding what happened and which laws, policies, administrative directives, or ethical provisions were violated by the actions of the employee. Issue specific directives regarding future conduct. Offer the employee an opportunity to respond within a specified time period. Require the dated signature of the employee. If the employee refuses to sign, have a third party witness that the employee has received the document. The final type of document outlined by Kemerer and Crain (2010) is the summary memorandum or last chance memorandum. This document pulls together and summarizes the record of observations, notes, and conversations from a particular period of time. The summary or last chance memorandum may include data from prior years if relevant to establishing a continuing pattern of deficiency. However, some caution is required when using prior year data. Regardless of the type, a careful documentation system is essential to effective personnel decisions. Linking to Practice Do: At the district level, train campus principals to develop an organized documentation process. Principals should train assistant principals and other supervisory personnel (department heads, mentor teachers, or instructional specialists, for example, if these individuals serve as evaluators) in proper documentation of teaching and interpersonal skills of teachers. Kemerer and Crain (2010) provide excellent examples of documentation that can be adapted to any state or local requirements. Clarify the types of behaviors that may result in some form of written record. Insist that all supervisory personal comply. Use evidence generated from the teacher’s formative and summative performance assessments to justify renewal or non-renewal of a probationary contract teacher. There is no excuse for personal bias or unprofessional conduct when making these kinds of recommendations. Do Not: Document every incident of non-compliance. For example, a single incident of being a few minutes late to lunch duty may not rate a specific incident memorandum or a remediation plan. Show up at a school board meeting with plans to recommend the termination of a continuing contract without good documentation that demonstrates a pattern of failure to meet the criteria established for teachers in the district and documentation of efforts to remediate the behavior (if applicable). Remember, the burden of proof is on the administrator in non-renewal of continuing contract teachers. Never try to bluff your way through a termination hearing before your local board of education. Use a documentation system as a method to bully employees or make life miserable in an effort to force a resignation or transfer. Use e-mail as a documentation system. Grounds for Dismissal of Continuing Contract Teachers There are basically two types of teacher behavior that are grounds for termination: remediable and non-remediable (Kemerer & Crain, 2010). Non-Remediable behaviors are grounds for non-renewal or immediate termination. Examples of non-remediable behavior may include violent behavior that puts students at risk of harm or injury, felony conviction, or inappropriate sexual or interpersonal relationships with students. Remediable behaviors require a chance for the teacher to improve or remediate the behavior. Examples may include a lack of lesson planning, failure to follow directed changes in teaching methodology, incidents of insubordination, or difficulties in classroom management. The remediation plan (professional growth plan) is a document that advises an employee of deficiencies, outlines a plan to improve, assists the employee in meeting the plan, and gives a reasonable time to comply (usually 30 to 90 days as defined by state law). Opportunities for remediation (changes in teacher behavior) are generally required before midyear termination of probationary teachers and almost always for continuing contract teachers for these types of deficiencies. It is not always required, but sound practice, to provide remediation opportunities for probationary teachers before a decision to terminate at the end of the contract period is made (Kemerer & Crain, 2010). Almost every state (Kansas is the only exception) has statutes that outline reasons for the termination of a teacher’s contract (Frey, 2010). Terms such as insubordination, neglect of duty, immorality, incompetence, and just cause are common threads in many state statutes (Frey, 2010). For example, Missouri state law empowers local boards of education to terminate the employment of continuing contract teachers for incompetence, inefficiency, insubordination, excessive absence, or conviction of a felony (RSMo 168.144). This section discusses these criteria in more detail. Insubordination Insubordination can be defined as the willful and deliberate defiance of reasonable school rules or the reasonable directions of a person in a supervisory capacity. Insubordination may be the easiest of the grounds for dismissal to define and document. The teacher or subordinate either obeyed a rule or order or disobeyed it (Rossow & Tate, 2003). However, employees can be insubordinate if they refuse to comply with a directive that relates to their job description. For example, a third-grade teacher who refused to supervise recess would be insubordinate, whereas a custodian who refused the same directive would not be refusing a directive related to her job description (Rebore, 2011). Naturally, employees would not be expected to follow a directive that may be illegal, is discriminatory, puts students in danger, or violates the constitutional or statutory rights of others. Neglect of duty Excessive or unreasonable absence from work can be substantiated only by a board policy that defines what is meant by excessive absence. A documented pattern of absences from work over a period of time will most likely suffice as long as the employee does not suffer from a disability covered by the Americans with Disabilities Act as Amended (Rebore, 2011). Incompetence Incompetence requires that the teacher demonstrate an inability to perform the duties required by the teaching contract. This may be the most difficult cause to document (Rebore, 2011). A charge of incompetence usually requires more than one incident of ineffective or substandard performance. However, a properly documented number of bad days or lessons can serve as the basis of a charge of incompetence. In other words, repeated documentation of incidents that clearly show deficiencies in the teacher’s job-related performance is usually necessary to justify incompetence. In addition, incompetence is usually considered a remediable offense. Consequently, many (if not all) states require that a remediation plan and an opportunity for the teacher to rectify any deficiencies be implemented before the recommendation for termination. One area that is frequently included in a charge of incompetence is failure to properly maintain classroom discipline (Rossow & Tate, 2003). A deficiency in classroom management may be the easiest to document. However, it is important to note that having an occasionally disruptive class may not qualify as incompetence. In a review of recent litigation involving challenges to incompetence, Rossow and Tate (2003, p. 26) conclude that (1) incompetence is whatever the board of education says it is, as long as an objective measurement can be demonstrated; (2) a period of remediation with the administration providing resources to help the teacher is necessary; (3) once a teacher has established himself or herself as an effective teacher with a record of positive evaluations, it may be more difficult to demonstrate incompetence; and (4) a pattern and reasonable forecast that the teacher will not improve is often necessary when teachers have established a positive evaluation record. In short, the dismissal of a continuing contract teacher for incompetence can be difficult. Immoral Conduct It is difficult to dispute the right of a public school district to regulate the job performance of public school teachers. It is also difficult to argue that teachers are not role models. In fact, teachers have great potential to influence, either positively or negatively, the lives of the students entrusted to their care. Typically, moral fitness or immorality is a judgment call by the board of education (Rossow & Tate, 2003). A Missouri Court of Appeals advanced a good working definition of immorality as follows: Immoral conduct (is) contemplated behavior sufficiently contrary to justice, honesty, modesty or good morals, or involving baseness, vileness or depravity so as to support the inference that the teacher understands the conduct to be wrong. (Youngman v. Doerhoff, 1994) Certainly, some forms of behavior, such as the commitment of felonious acts, sexual relationships with students, or possession of child pornography, should justify termination from public school employment. The problem, of course, is in defining immoral conduct in less clear-cut situations. However, the nexus principle provides some legal guidelines. The nexus principle can be defined as demonstrating a relationship between the behavior in question and the teacher’s professional responsibilities and teaching effectiveness. The nexus principle was first outlined by the California Supreme Court (Morrison v. Board of Education, 1969). A California public school teacher was terminated because of an alleged single homosexual incident. As part of this decision, the court pointed out that no evidence had been presented that the single incident in question had negatively affected the teacher’s ability to teach or interfered with the efficient operation of the school. Although not every jurisdiction requires a nexus as outlined in Morrison, the concept of a relationship between the behavior and fitness to teach has gained considerable support among most courts attempting to find the balance between the rights of teachers and boards of education. The term fitness to teach, although broad, generally refers to a teacher’s ability to maintain classroom discipline, the potential impact on students, and the impact on parental attitudes (Fulmer, 2002). In an analysis of court decisions related to teacher termination for immorality or similar reason, Fischer (1999) found that many courts consider intent, foreseeability, and knowledge in determining a nexus between the behavior and fitness to teach. Intent refers to whether or not the act in question was deliberate. Foreseeability considers whether or not harm to students was a predictable result of the conduct in question. Knowledge refers to whether or not the teacher knew or should have known that the conduct would negatively affect his or her fitness to teach. In cases where the conduct meets all or some of these criteria, courts are more likely to support termination (see Lehto v. Board, 2008, and Youngman v. Doerhoff, 1994, as examples). For example, providing alcoholic beverages to students would certainly qualify as an intentional act. Most school district policies may not have a specific rule that states, “Providing alcoholic beverages to students may result in termination of employment.” However, the act of providing the beverages would have a foreseeable impact on a teacher’s ability to maintain good order and discipline and would affect parental perceptions of the teacher. In addition, it should not take a legal scholar to understand that providing alcoholic beverages to underage students is against the law and could negatively affect almost anyone’s definition of fitness to teach. Other behaviors, such as possession of illegal drugs or inappropriate sexual contact with a student, would clearly establish a nexus between the behavior and fitness to teach. A misdemeanor arrest for prostitution or the solicitation of prostitution can be considered so morally offensive that it may be reasonable to terminate a continuing contract teacher. However, private gay, lesbian, bisexual or transsexual lifestyles are not cause for employee dismissal (Rebore, 2011). Rebore argues that although this lifestyle may be unacceptable to many in the community, these practices are displayed publicly on television and other media to such an extent that the impact on students has been nullified. However, advocating non-conventional lifestyles at school may put the employee at risk of termination. Just Cause, or Conduct Unbecoming a Teacher These terms are catchall phrases in some state statutes. For example, some states (such as Arizona, Hawaii, Indiana, Maine, Massachusetts, New Jersey, New Mexico, and Virginia) use terms such as good cause or good and just cause as reasons for terminating teaching contracts. A few states (such as Iowa, Michigan, Montana, Ohio, Rhode Island, and Texas) have distilled reasons for termination of continuing contracts to such terms as reasonable and just cause, good cause, or good and just cause (selected from Frey, 2010). These terms are not without ambiguity. Texas, for example, defines good cause as follows: “For good cause as determined by the local school board, good cause being the failure of a teacher to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts throughout Texas.” Other, less common reasons, such as cruelty (Illinois), dishonesty (Louisiana and Nevada), and brutal treatment of a pupil (Mississippi), are included in some state statutes (selected from Frey, 2010). Appeals Process Every state provides continuing contract teachers alleging wrongful termination with the right to request a hearing before an impartial tribunal. In some states (Arizona, Connecticut, Idaho, Iowa, Louisiana, Maryland, Mississippi, Missouri, Nebraska, and New Mexico, for example) the hearing is conducted by the local school board. In a few states the appeal may be presented to a hearing officer (Alabama, Colorado, Illinois, Kansas, New York, Oregon, and Washington, for example). Some states allow for the initial appeal to be determined by collective bargaining negotiations (selected from Frey, 2010). All states allow teachers to appeal a termination decision from the impartial tribunal or hearing officer to a state court with jurisdiction to hear their case. Linking to Practice Do: Follow state law and school board policy. Know the difference between a remediable and a non-remediable behavior. Document, document, document. Consider failure to follow or meet the behavioral changes outlined in a remediation plan as the primary reason for termination recommendations (Kemerer & Crain, 2005). For example, the Eighth Circuit Court recently upheld the termination of a continuing contract teacher because of her failure to improve in certain areas in which she was repeatedly provided assistance by the district. In other words, she repeatedly did not meet the requirements of the remediation plan (Shanklin v. Fitzgerald, 2005). Do Not: Undertake the dismissal of a continuing contract teacher lightly or for personal reasons. Jump to conclusions. There is a difference between poor judgment and immoral behavior. Investigations of Employee Misconduct Respondeat superior is the doctrine that holds employers liable for employees’ wrongful acts committed within the scope of employment (Garner, 2006). In the context of school leadership, this concept means that the failure to adequately supervise employees and investigate alleged misconduct can result in a charge of negligent supervision or retention. Consequently, allegations of employee misconduct should be thoroughly investigated. Investigating allegations of employee misconduct is not easy. But, a careful investigation serves as the foundation for effective documentation and justification for any action taken. It also demonstrates that the administrator has not been careless, negligent, or deliberately indifferent to potential employee misconduct. The procedural due process rights (and other Constitutional rights) of the teacher or other school employee being investigated should always be honored. The U.S. Supreme Court has established that public school employees facing disciplinary action have the following due process rights: (1) oral or written notice of the charges, (2) an explanation of the evidence on which the charge is based, and (3) an opportunity for the employee to present his or her side of the story (Loudermill v. Cleveland Board of Education, 1985). In addition, some school boards may have a negotiated working conditions agreement. This agreement becomes board policy when accepted by the board. Consequently, a careful examination of the agreement further ensures that the investigator does not violate board policy. Further procedural due process varies somewhat from state to state and is generally outlined in state law and school board policy. Some fundamental guidelines do exist regardless of state law or negotiated agreements. First and foremost is the importance of not delaying beginning an investigation. Do not assume guilt. However, failing to investigate after becoming aware of allegations or rumors of sexual misconduct, teacher-on-student sexual harassment, or other serious allegations may place the administrator and district at risk of liability for a failure to adequately supervise employees (Kemerer & Crain, 2010). The importance of a fact-based approach that protects the due process and privacy rights of the possible student–victim and the employee cannot be underestimated. A failure to protect both the student and the employee may also place the administrator and the school district at risk of liability. Kemerer and Crain (2010, pp. 2-7) recommend involving the parents or guardians of potential student victims as much as possible in the investigation of employee misconduct. This may seem somewhat risky, but it is probably better to have parents as partners than to have them find out later that their child was the victim of employee misconduct. Most states allow for the suspension with pay of employees accused of serious misconduct pending the outcome of an investigation. Evidence of employee sexual misconduct is almost always grounds for immediate termination of employment. Less severe misconduct may result in suspension with or without pay, a reprimand, and/or a remediation plan. Once the investigation has been concluded warn the employee of retaliation. Retain all documentation. These documents should not be inserted in the employee’s file because (1) there is a possibility of reprisal by the employee, (2) it is difficult to excise personally identifiable information under FERPA, and (3) some of the information gathered may be misleading or false (Kemerer & Crain, 2010). Resignation, Non-Disclosure Agreements, and Defamation “The answer to every school administrator’s prayer in making difficult personnel decisions is a voluntary resignation” (Kemerer & Crain, 2010, p. 1–22). The authors may be correct. Resignations work to everyone’s benefit. However, it is important to avoid bullying, coercion, or duress in an attempt to force a resignation. Do not attempt to make an employee’s time at school so unpleasant that she or he will have no choice but to resign. Although anyone may file a grievance, these actions may spell trouble for the administrator. For example, an employee could claim that the supervisor’s behavior created a hostile work environment and seek redress from EEOC. If the employee is a member of a protected class, than an appeal to OCR is possible. It is also possible for a court to find bullying, coercion, or duress in an effort to force a resignation or more seriously the fabrication of a reason or animus toward the employee a form of intentional tort. An intentional tort generally requires that the supervisor intends the consequences of the act (Staub v. Proctor Hospital, 2010). In other words, intentionally bullying or making life miserable for an employee may be a form of intentional tort. Some simple recommendations from Kemerer and Crain (2010) include: Consider having a witness present when discussing the option of resigning with an employee. Allow the employee to have an attorney or union representative with her or him. However, make it clear that the representative is there only to advise and represent the employee. The representative should not be allowed to question the administrator’s findings or take over the meeting. Advise the employee of applicable school district grievance and due-process procedures. If the evidence indicates that the employee has been involved in sexual misconduct, committed a felony, or other serious misconduct defined by state law, inform the employee that action against her or his teaching certificate may be undertaken. Require the employee to submit the resignation to a person authorized to receive it and to acknowledge its receipt. In an effort to expedite the exit of an employee accused of serious misconduct with as little negative publicity and political fallout as possible, some districts may be tempted to enter into a non-disclosure agreement in exchange for the resignation of the accused (or guilty) employee (Mawdsley & Permuth, 2003). A non-disclosure agreement generally includes a neutral letter of recommendation and a restriction on the part of the district on the disclosure of the charges that led to the resignation in the first place. However, non-disclosure agreements create several problems including potential liability on the part of the district for violating the non-disclosure agreement (see Pierce v. St. Urain Valley School District, 1999). More importantly, school districts where the employee is applying for job may face a difficult task obtaining accurate data when another school district enters into a non-disclosure agreement with an employee (see Shrum v. Kluck, 2001). In a recent study of 15 cases in 11 states of individuals with present or past histories of sexual misconduct, the U.S. Government Accounting Office (GAO) (2010) found that several factors contributed to the hiring or retention of individuals with histories of sexual misconduct: Resignation: In four of the cases investigated by the GAO, school officials allowed teachers who would have been subjected to disciplinary action for sexual misconduct to resign. These teachers were able to truthfully inform other school districts that they had never been fired from a teaching position. In three of these cases, the district provided positive recommendations for the individuals. Non-Existent preemployment criminal history checks: In 10 of the 15 cases, school officials did not perform preemployment criminal history checks. Inadequate criminal history checks: Many criminal history checks may not be adequate because they are not national fingerprint-based checks. Ignoring red flags on employment applications: Several districts failed to follow up on missing or troubling responses to questions on the employment application. Employees who engage in sexual misconduct are likely to engage in similar conduct in the future. School districts should take care not to enter into non-disclosure agreements, provide false positive letters of recommendation, fail to check references, fail to adequately complete background checks, or ignore missing information on employment applications. Virtually every state has laws requiring school district employees to report signs of sexual abuse to state child protective services. Several state legislatures have attempted to outlaw non-disclosure agreements. The Missouri state legislature was the first to pass legislation with the intent of breaking the code of silence on non-disclosure agreements. A recently passed law requires school districts to disclose allegations of sexual misconduct to other school districts when responding to a potential employer’s request for information regarding the employee (RSMo 162.068). The law requires the disclosure of whether or not the employee was terminated or chose to resign. A failure to disclose allegations of sexual misconduct may result in liability for damages caused by that failure. This type of law effectively bans non-disclosure agreements. Defamation Administrators are often concerned that a frank reply to inquiries about former employees from other school districts might subject them to a defamation lawsuit. In this context, defamation is defined as the “act of harming the reputation of another by making a false statement to a third person” (Garner, 2006, p. 188). The terms libel and slander are different forms of defamation that are often used interchangeably. Libel is commonly used to describe written defamation. Defamation that is spoken is slander. For some reason, defamation that is broadcast through the media is referred to as libel rather than slander. According to Taylor (2002), in order to meet the definition of defamation (either libel or slander), the action or words must be demonstrated to (1) be false, (2) be published, and (3) damage or injure a person’s reputation, business, or profession. In a legal sense, any statement that is true is not defamatory. Therefore, courts have granted qualified immunity to school leaders when these individuals are acting in good faith. Good faith requires that the communication be done without malice, with reasonable grounds, in answer to inquiry, and with regard to assisting or protecting the interests of either party or as a duty to society (Alexander & Alexander, 2012). A supervisor’s negative comments about a teacher’s job performance as part of a board of education consideration of employment would be protected as long as the statements are objective, within the scope of employment, tied to performance standards, communicated without malice, and made in response to inquiries by board members. This speech may not be protected, however, if negative comments about a teacher are shared gratuitously and indiscriminately among anyone who will listen. The same criteria can be applied to reference letters or telephone inquiries from other school districts. The best protection, however, is to stick to the truth and obtain the employee’s permission to release information to potential employers before the employee leaves the district (Kemerer & Crain, 2010). Linking to Practice Do: Always base comments regarding the professional competency of teachers and other staff members on factual information. Use data and written reports such as formative and summative evaluations and remediation plans to document information shared with superiors regarding the professional competency of teachers and other professional staff. Consult a school attorney before entering into a non-disclosure agreement. Properly investigate and document alleged misconduct to eliminate the need for non-disclosure agreements by providing justification for contract termination or other adverse employee actions. When entering into a non-disclosure agreement, take measures to ensure that individuals with a need to know understand and abide by the agreement. Insist that all inquiries from the media or local citizenry be referred to school district legal counsel. Always check references before making a final decision on potential employees. Short cuts in reference checking of potential employees are a recipe for disaster. Do Not: Indiscriminately share negative personal feelings or evaluations of teachers and other professional staff. Allow personal feelings (either positive or negative) to interfere with professional judgment regarding teachers and other professional staff. Ignore warning signs such as unwillingness to elaborate, a similar non-descript reference from multiple contacts in the same district, or general letters of reference when checking references. Warning signs of past misconduct are usually present. Ignore these signs at your own risk! Collective Bargaining and Negotiations A 1960 New York City teacher strike led to the first collective bargaining agreement between a teacher association and a school board. Many states eventually passed public sector collective bargaining legislation that outlined the negotiation requirements and, in most cases, the impasse procedures to regulate negotiations between school boards and teacher groups. Currently, 35 states have collective bargaining laws (Colasanti, 2008b). Collective bargaining (or collective negotiations) occurs when employee representatives and employers (representatives of boards of education) formally discuss (and in some cases negotiate) terms of employment such as working conditions, salaries, and fringe benefits. The terms collective negotiations and collective bargaining are often used interchangeably. For clarity, this text will use collective bargaining. Regardless of terminology, whenever employees negotiate collectively with the school district, the employee group is essentially functioning as a labor union (Rebore, 2011). Public school employee collective bargaining rights are controlled by state law and conducted at the school district level (Colasanti, 2008b). Some states, particularly in the South, have “right to work” laws. Right to work laws prevent collective bargaining agreements from requiring workers to join the union, pay dues, and otherwise support the union. These laws do not prohibit collective bargaining. For example, Florida, Idaho, Indiana, and Iowa have both a right-to-work law and a collective bargaining law for all public employees, including teachers. However, most states (Alabama, Texas, Georgia, Louisiana, and Mississippi are examples) that have right-to-work laws do not have public school collective bargaining laws. Most states (California, Idaho, Indiana, Kansas, and Maryland are examples) exclude superintendents and other managerial or supervisory employees from collective bargaining laws. In addition to the types of public school employees covered or excluded, all state collective bargaining laws detail scope of bargaining, impasse procedures, and the legality of strikes (Colasanti, 2008b). Scope of Bargaining Scope of bargaining (scope of negotiations) details which issues are negotiable under state law. The majority of state collective bargaining laws limit the scope of bargaining to wages, salaries, and working conditions. However, some collective bargaining laws allow teachers to bargain over curriculum development, teaching methods, textbook selection, class size, student discipline and budget appropriations (Indiana), grievance and disciplinary procedures (Kansas), fringe benefits (Minnesota), teacher preparation time and materials and supplies for classrooms (Nevada), and labor-management relations (North Dakota) (Colasanti, 2008b). Impasse Procedures Impasse procedures outline the steps to be taken when a teacher union and a school district cannot agree on a resolution (Colasanti, 2008b). There are four basic types of impasse procedures: mediation, fact finding, arbitration, and strikes. Mediation is similar to the discourse ethics model presented in this text. A trained mediator meets with district and union representatives, seeks to understand the perspectives of both groups, and attempts to broker an agreement acceptable to both sides. Currently, 34 states make mediation available to districts and unions (Colasanti, 2008b). The only difference between mediation and fact finding is that in fact finding, an impartial panel attempts to broker an agreement between the district and the union. Fact finding is available in 29 states (Colasanti, 2008b). Mediation and fact finding are also similar in that a brokered agreement is not necessarily binding on the parties. Arbitration is a more formal process. A trained arbitrator meets with the two sides, collects information, and makes a decision. The arbitrator’s decision is usually considered final. Arbitration is available in 21 states (Colasanti, 2008b). Strikes are the least common method of resolution and are prohibited in 22 states. Thirteen states (Alaska, Hawaii, Illinois, Minnesota, Montana, Nebraska, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, Utah, and Wisconsin) allow strikes (Colasanti, 2008b). The Negotiation Process A complete overview of the negotiation process is beyond the scope of this text. Interested readers or those preparing for district leadership are urged to contact their state school boards association (an affiliate of the National School Boards Association, www.nsba.org), their state administrator association (an affiliate of the American Association of School Administrators, www.aasa.org), and the state department of education for complete information. However, this section presents a general overview applicable to most negotiations between teacher unions and school districts. The essential question in the negotiation process is, who bargains with whom, and for what? The first part of this question (who bargains with whom) concerns recognition. Rebore (2011, p. 1) defines recognition as “the acceptance by an employer (board of education) of some group or organization as the authorized representative (of teachers).” Exclusive recognition is the most common form of recognition in education and occurs when a single union represents all teachers. When two or more groups (AFT and NEA, for example) have members in the same school district, then the union that can demonstrate a majority of members becomes the bargaining unit (Rebore, 2011). The bargaining unit assumes the responsibility to represent all teachers regardless of union affiliation. The teacher union negotiation team is composed, of course, of teachers. The bargaining unit normally has bylaws or past practice that determines how the representatives are selected to bargain with the school district. In some cases, the state affiliate provides expert advice to the teacher team. The board of education determines membership for the district team. Experience finds that in smaller school districts, the board of education usually selects two or three board members and the superintendent to represent the district. Larger districts may employ an assistant superintendent or director of personnel who leads the district bargaining team. Rebore (2011) recommends that the district team have at least one building principal elected by the other principals in the district to represent first-line administrators. It is Rebore’s contention (and the author’s experience) that many principals are critical of school boards (or their bargaining representatives) for “negotiating away” their authority. This is particularly true in today’s environment where principals are held accountable for school performance scores. The answer to the second part of the question, for what do people bargain, is the most difficult. All collective bargaining laws list the scope of negotiations. Salaries and fringe benefits (insurance, personal or sick leave policy, etc.) are relatively simple to define. The union naturally (and legitimately) attempts to bargain for the highest pay and greatest benefits. The school district attempts to maintain fiscal sanity and a balanced budget. At least, one would hope. However, there is little doubt that these divergent views can create considerable disagreement and sometimes long-simmering anger among the parties. Some states use the term working conditions as part of the scope of negotiations. Working conditions are generally defined as “conditions that pertain to the quality of employment” (Rebore, 2011, p.). Examples listed by Rebore (2011) include class size and duty-free lunch. Working conditions may also create considerable animosity among the participants. For example, it is difficult to argue against a duty-free lunch for teachers. However, someone has to supervise the cafeteria and playground areas. The question then becomes, “Who should this person be?” The answer to this question is not the union’s problem. There is little doubt that board members or members of the district negotiating team are not going to supervise playgrounds. Consequently, building administrators are the ones most likely required to develop a solution. It is at this point that principals in the district need representation on the district negotiation team. In short, even working conditions that seem on the surface to elicit general agreement are subject to considerable divergence of views. A major concern of both teacher unions and boards of education centers around educational policy. Make no mistake, educational policy is about power. For the vast majority of states it is understood that educational policy is not subject to negotiations (Rebore, 2011). In fact, for all practical purposes, only boards of education are empowered to enact and enforce policy. However, it is virtually impossible to separate policy from working conditions. For example, assume a teacher union negotiates for reduced class size in middle school language arts, math, and science classes. On the surface this is a reasonable request. However, reducing class sizes requires sometimes considerable reallocation of resources, which of course is a policy function (Rebore, 2011). Linking to Practice Do: The homework necessary for understanding the current contract, needed changes, and, if possible, the rationale behind the union’s proposals. Seeking to understand the perspectives of the union can never be underestimated. Think long term. Similar to buying a house today with an interest-only loan, depleting the district reserve fund to reduce class sizes for this year with hopes of increased state funding or property taxes next year may not be a good idea. Explain your economic situation and bargaining goals simply and directly. Support your positions with research and facts. Remain positive. Never attack union representatives personally, engage in negative campaigning, or become discouraged. Focus on the solution, not the personalities. Think utilitarian ethics. The teacher union represents teachers and should legitimately attempt to obtain the best agreement for teachers. The district team, however, should pursue the greater good of all stakeholders in the district. Summary Selecting, supervising, and collectively negotiating with teachers and other employees are difficult but essential tasks. Knowledge of the legal rights of the school district, current employees, and potential employees is paramount in protecting all concerned. There are no excuses for short cuts, personal expediency, or personal biases in this important role of school leadership. In fact, it can be argued that proper employment procedures, supervision, and fair treatment of employees may be the most important undertaking of school leadership. This chapter has outlined basic principles of utilitarian ethics relative to employment practices, contract law, supervision and documentation, employment practices, and collective negotiations applicable to most situations. However, readers are urged to consult state law and local school board policy for a complete understanding of employment responsibilities in a particular state or district. Connecting Standards to Practice Sealed with a Kiss Assistant superintendent Sharon Grey, Riverboat High School principal Tara Hills, and state school board member Patricia Wu were meeting to discuss the case of Michael Washington. Michael Washington, 22 and a graduate of RHS, was in his first year of teaching social studies at Riverboat High School. Sharon remembered Michael. He had not been a model student at Riverboat, but he had earned an academic scholarship to State University, where he was an excellent student. Tara found Michael to be a natural teacher and to have a friendly relationship with many students. Several veteran teachers had complained that Michael was a little too friendly and seemed more like a student than a teacher. Tara believed that some of the veteran teachers had a difficult time viewing Michael as a young adult and not as the sometimes recalcitrant high school student. From what Tara and Sharon had gathered, Michael had met 18-year-old North High School senior Shelia Armstrong at a local gym where they shared a personal trainer. Michael and Shelia had immediately connected and had started to casually meet at the gym. They sometimes went together to the city mall. In late October, the relationship between Michael and Shelia escalated and resulted in consensual sex. Michael and Shelia did not make an effort to hide their relationship, but spent most of their time together in Capital City or at Michael’s apartment. All was well until the day before the winter break. It was tradition in Riverboat School District for all schools to close at 1 p.m. on this day. Michael usually stayed in his classroom and worked, but today he had a special date with Shelia, and he left immediately. As Michael walked to his car in the school parking lot that afternoon, Shelia was waiting with a large package. Shelia and Michael shared a kiss in the parking lot. Several veteran teachers and a number of students witnessed the parking-lot kiss. Soon after the second semester started, the story of Michael and Shelia had taken on a life of its own. The relationship became the topic of conversation in the teachers’ lounge, and several of Michael’s students asked him about the relationship. One of the teachers in the district contacted the state education department. The state department turned the investigation over to a hearing officer. On May 1st, the hearing officer recommended the revocation of Michael’s teaching certificate in spite of the facts that Shelia attended school in a different district, was an adult, and acknowledged instigating the initial sexual encounters. State school board member Wu was conflicted about the recommendation. She came to ask Sharon and Tara their opinion. Question Argue for or against the revocation of Michael’s teaching certificate. Use the ISLLC standards, legal principles (the nexus principle, for example), and J. S. Mill’s ethical principles of the greater good to justify your answer. Write a letter to state board member Patricia Wu explaining your viewpoint.
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