Chapter 10 - William Allan Kritsonis, Lecture Notes

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Transcript of Chapter 10 - William Allan Kritsonis, Lecture Notes

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Chapter 10

Legal Liability

William Allan Kritsonis, PhD

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 Ask Yourself This

 

“Can I be sued?” “YES” In America, anyone can be

sued at any time. The more relevant question is:

“Can I be held liable?” The anser to this questionturns on a host o! !actors. "tate or #ederal? $ersonal

In%ury or Constitutional? Liability o! the school or o!

the individual?

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 Identifying Areas of Legal Liability

  Legal liability can be se&arated into to distinct

categories:

Criminal Law

Civil Law 

Criminal la involves any crime against the state

hile civil la involves a lasuit brought buy

one &erson to another.

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 Identifying Areas of Legal Liability

cont.  There are to torts in the educational realm:

"tate Torts

  #ederal Torts

 

At the state level, negligence is the highest &ro&osed

and most commonly used in the educational setting.

'hile at the !ederal level, constitutional and !ederalstatutory rights are common.

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"tate Torts

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 School District Immunity

The Te(as Tort Claims Act )“The Act”* is a set o! statutes

that determine hen a governmental entity may be liable

!or tortuous conduct under state la. +ranting

governmental units immunity serves a great &ur&ose. It &rotects governmental time and resources !rom

diminishment !rom &rivate litigation and encourages

!orthright action by &ublic o!!icials. It also &rotects the

government !rom !raudulent or !rivolous suits that

otherise may arise because o! the &erceived “dee&

 &ocets” o! government entities.

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 Sovereign Immunity and Contract Cases

"overeign immunity is a %udicial doctrine that

 &revents the government or its &olitical

subdivisions, de&artments, and agencies !rom being sued ithout its consent.

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Qualified Immunity for ublic School

 rofessional !m"loyees

Te(as -ducation Code &rovides &ro!essional

school em&loyees ith “quali!ied immunity.”

uali!ied immunity &rotects &ublic o!!icials!rom being sued !or damages unless they

violated “clearly established” la o! hich a

reasonable o!!icial in his &osition ould havenon. It aims to &rotect civil servants !rom the

!ear o! litigation in &er!orming discretionary

!unctions entrusted to them by la.

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The S"ecial Case of Cor"oral unishment and hysical

#orce

Cor&oral &unishment is legal in Te(as. All

decisions about these &ractices are le!t u& to the

school district. Te(as $enal Code //.01 states: A &erson commits an o!!ense i! he intentionally,

noingly, reclessly, or ith criminal negligence,

 by act or intentionally, noingly, or reclessly by

omission, causes to a child, elderly individual, ordisabled individual.

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 unishment and hysical #orce

The !olloing o!!enses by a teacher are

 &unishable by la:

)2* serious bodily in%ury

)/* serious mental de!iciency, im&airment, or

in%ury

)3* bodily in%ury

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#ederal Civil 4ights Liabilities

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+overnmental Liability

"ection 2563 s&eas o! “every &erson.” Is a

city a “&erson”? In 2576, the 8.". "u&reme

Court held the terms “&erson” in "ection 2563

includes governmental entities such as cities

and school districts.

-(&lanation9 “a government is not liable

merely because o! his or her !ederal rights.”

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-(am&le o! +overnmental Liability

Lo&e v. ;ouston I.".<.

A student alleged that he as beaten unconsciously

on a school bus. The bus driver as a substitute andas accused o! doing nothing.

4esults: The !ederal district court dismissed the casenoting that the district could not be held liable merely

 because it hired someone ho used &oor %udgment.

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$ersonal In%uries and the Constitution

A &erson ho sues the local school district or

school o!!icial over a &ersonal in%ury !aces yet

another &roblem that a ty&ical &lainti!! ho !alls

don in a grocery store doesn=t encounter.

-(&lanation: The &erson ho sues must establish

that he or she has su!!ered an in%ury that de&rivesthe individual o! !ederally &rotected rights.

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Individual Liability

'hen &lainti!!s see to im&ose liability on

individuals under !ederal la, the conce&t o!

“deliberate indi!!erence” comes into &lay as

ell

A school o!!icial ho maes mistaes is not

necessarily “deliberately indi!!erent” even i!

those mistaes have a tragic outcome.

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Individual Liability -(am&le

“"arah <oe” a student that as sus&ended at

school had an “uncle” come to &ic her u&. The

 &rinci&al became “&re9occu&ied” and didn=t see

her leave. The girl later sued the &rinci&al and theschool because she as se(ually assaulted by a

man ho as alloed to &ic her u& !rom school.

Conclusion9 the &rinci&al as not &ersonally

liable.

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There is > general duty to &rotect students hile they are at

school, does !ederal la &rovide any resource !or &ersonal

in%uries?

@-"The &lainti!! must &rove:

2. the de&rivation o! a !ederally &rotected right

/. !or hich the district itsel! should be accountable

3. hich involved a degree o! cul&ability that e(ceeds mere

negligence

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"ummary

“There is an increase in cases brought under

!ederal la, but &lainti!!s carry a heavy burden

o! &roo! in those cases. oreover, i! they see

to im&ose liability on individuals, they must

overcome the quali!ied immunity de!ense.”

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 Discussion Questions

• 'hat is the only e(ce&tion to immunity !or

 &ro!essional em&loyees in Te(as?

• "hould cor&oral &unishment be alloed in Te(as$ublic "chools? 'hy or hy not?

'ho is res&onsible and may be held liable !or tose(ual assault o! a student by a teacher? -(&lain.

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Landmar Cases

Goss v Lope! "1#$%&

"tudents are entitled to certain due &rocess rights.

'ew (erse) v *L+ "1#%& 

"tudents have a reduced e(&ectation o! &rivacy in school.

-a!elwoo. v K/hlmeier "1#&

Administrators may edit the content o! school nes&a&ers.

Santa e n.epen.ent S2hool Distri2t v Doe "3000&

"tudents may not use a schoolBs louds&eaer system to o!!er student

led, student9initiated &rayer.

4oar. o5 E./2ation o5 n.epen.ent S2hool Distri2t 6#3 o5 Pottawatomie

Co/nt) v Earls "3003&

4andom drug tests o! students involved in e(tracurricular activities do not

violate the #ourth Amendment.

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T!$!S Questions

  r. ones, a seventh9grade teacher, comes to s. 'inston, the ne &rinci&al at 4aleigh iddle

"chool, to discuss an issue that he says is o! groing concern to classroom teachers. r. onessays that Admission, 4evie and <ismissal )A4<* committees are more !requently determining

that students ith s&ecial needs should receive services in regular classrooms and that many

teachers believe that they are not &re&ared to &rovide a&&ro&riate instruction !or these students.

“any o! us believe that the s&ecial education teachers are the ones ho should be mainly

oring ith these ids,” he says. “They=re the ones ho have the s&ecialied training.”

 

1. s. 'inston believes that the larger issues raised by r. ones must be addressed i! students

ith s&ecial needs are to be served a&&ro&riately. ;er encounter ith r. ones suggests that the

school is in need o! stronger leadershi& in the area o! 

 

A. establishing !ormal communication channels through hich teachers= concerns can be

addressed.

 

D. &re&aring and su&&orting teachers so they can meet the needs o! all students.

 

C. &roviding increased o&&ortunities !or teachers to &artici&ate in school governance.

 

<. identi!ying more accurately the students ho are in genuine need o! s&ecial education services.

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3. r. ones also brings u& the sub%ect o! a student in his class ho has a

disability and receives s&ecial education services. This student is e(tremely

disru&tive and unruly.

r. ones urges s. 'inston to consider trans!erring the student to an

alternative education &rogram )A-$*. In this situation, s. 'inston should

 be aare that

 

A. changes in the &lacement o! a student ho receives s&ecial education

services may be made only by the action o! an admission, revie and

dismissal committee.

 

D. she must obtain the a&&roval o! the school=s s&ecial9needs coordinator

 be!ore maing any change in the student=s &lacement.

C. changes in the &lacement o! a student ho receives s&ecial education

services must be initiated by a certi!ied s&ecial education teacher.

<. r. ones must document the reasons !or his request be!ore s. 'inston

can change the student=s &lacement.

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"everal &arents have contacted a middle school &rinci&al ith regard to a

concern they have about the school=s e(tracurricular &rogram. The &arents say

that a!ter9school activities sometimes end early, leaving students to ait !or u& to

1E minutes, usually unattended, until the late bus arrives.

7. 'hich o! the !olloing ould be the most im&ortant immediate ste& !or the

 &rinci&al to tae in res&onse to this issue?

 

A. A&&oint a sta!! member to gather more in!ormation and re&ort bac as soon as

 &ossible regarding the e(tent o! the &roblem

 

D. Tem&orarily sus&end e(tracurricular activities until a tas !orce is !ormed and

is able to develo& a &ermanent solution to the &roblem

 

C. Arrange !or a sta!! member to be res&onsible !or su&ervising any students ho

remain a!ter e(tracurricular activities end

<. Assign each student a bac9u& activity to re&ort to i! their chosen activity

ends early

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8. ne &arent argues that e(tracurricular &rograms are not an integral &art o! a

school=s academic mission. The &arent also charges that such &rograms are

inherently un!air because not all students choose to, or are able to, &artici&ate. The

 best %usti!ication !or the &rinci&al to o!!er in su&&ort o! e(tracurricular &rograms is

that they

 

A. generate revenues !or the school through club9s&onsored sales and event !ees that

hel& su&&ort essential student services.

 

D. hel& !ul!ill the school=s mission o! &romoting students= develo&ment across a

range o! develo&mental domains.

 

C. contribute to the e!!icient use o! resources by ensuring that school !acilities are

utilied !or as many hours in a day as &ossible.

 

<. &rovide o&&ortunities !or teachers and students to interact in conte(ts other than

the regular classroom setting.

 

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An elementary school &rinci&al is oring ith the school community to im&lement a &lan to integrate

technology into the school=s curriculum. The &lan, hich the &rinci&al develo&ed ith a technology

committee com&osed o! school sta!! and other staeholders, ensures that all teachers and students have

consistent, convenient access to technologies !or enriching the cam&us curriculum. All teachers have

received initial training in a&&ro&riate uses o! these technologies. The teachers also have access to

technical su&&ort services and relevant instructional resources, including descri&tions o! technology9 based instructional activities that are aligned ith the cam&us curriculum. any teachers have already

 begun to integrate the technologies into classroom instruction.

 

% The &rinci&al observes that some teachers are se&tical about the technology initiative and are

reluctant to im&lement technology9based instruction in their classrooms. 'hich o! the !olloing

res&onses !rom the &rinci&al ould most liely be e!!ective in engaging these teachers in the technology

initiative?

 

A. -ncouraging the reluctant teachers to &artici&ate in additional sta!! develo&ment sessions to

strengthen their technology sills

 

D. eeting ith the reluctant teachers to reiterate the bene!its o! integrating technology into the cam&us

curriculum 

C. Arranging !or teachers ho are success!ully using the ne technologies to serve as models and

mentors !or the reluctant teachers

 

<. !!ering to su&&ort the reluctant teachers by &ersonally observing their use o! the ne technologies

and &roviding constructive !eedbac 

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 %eferences

Femerer, #., aniotis, L., G 'alsh, . )/020*.

The -ducator=s +uide to Te(as "chool La.

8niversity o! Te(as $ress: Te(as.

Te(as -ducation Code

Te(as $enal Code

8nited "tates Courts