Risk Management:Creating a Safe Environment

Learning Outcomes

Students are able to:Students are able to: Describe the concept of in loco parentis as relates Describe the concept of in loco parentis as relates

to duty and standard of careto duty and standard of care Identify the coverage areas for managing riskIdentify the coverage areas for managing risk Recognize the importance of due process in Recognize the importance of due process in

handling student disciplinehandling student discipline Explain the criteria to be prudent, reasonable, and Explain the criteria to be prudent, reasonable, and

foreseeable in avoiding negligent tortforeseeable in avoiding negligent tort Analyze cases to determine liability of educatorsAnalyze cases to determine liability of educators

What is Risk Management?

Risk management is a coordinated, effective, pre-response Risk management is a coordinated, effective, pre-response and post-response to a school’s district’s liability and post-response to a school’s district’s liability exposures developed through planning, organizing, exposures developed through planning, organizing, directing, and monitoring a district’s activities and assetsdirecting, and monitoring a district’s activities and assets

Risk management is the process of minimizing accidental Risk management is the process of minimizing accidental loss by anticipating and preventing the occurrence of loss by anticipating and preventing the occurrence of unplanned eventsunplanned events

Ingredients for risk management: Authority, Ingredients for risk management: Authority, Accountability, Responsibility, and Training (AART)Accountability, Responsibility, and Training (AART)

Principles of in loco parentisPrinciples of in loco parentis

Definite responsibility to the school for the welfare of each Definite responsibility to the school for the welfare of each student it serves in the absence of the student’s parent or student it serves in the absence of the student’s parent or guardianguardian

The student’s interests, welfare, and safety are directed by The student’s interests, welfare, and safety are directed by responsible adults trained as teachers and administratorsresponsible adults trained as teachers and administrators

Duty and standard of care by educatorsDuty and standard of care by educators A hazard is anything that can cause harmA hazard is anything that can cause harm A risk is a combination of the likelihood of harm occuring A risk is a combination of the likelihood of harm occuring

and the severity or consequences should it occurand the severity or consequences should it occur

Components of Risk Management

Risk identificationRisk identification Risk assessmentRisk assessment Risk ControlRisk Control

Risk identificationRisk identificationImplementation of safety campaigns, safety Implementation of safety campaigns, safety instruction, warning signs, and maintenance instruction, warning signs, and maintenance carried by schools and etc.carried by schools and etc.

Risk assessmentRisk assessmentPeriodic check-ups on electrical wiring and Periodic check-ups on electrical wiring and appliances, plumbing and sewage systems, fire appliances, plumbing and sewage systems, fire drills, conditions of physical structures staircases, drills, conditions of physical structures staircases, grilled windows and laboratoriesgrilled windows and laboratories

Risk controlRisk control

Safety procedures such as the use of log books for Safety procedures such as the use of log books for recording past accidents, list of emergency recording past accidents, list of emergency telephone numbers, fire extinguishers and first aid telephone numbers, fire extinguishers and first aid boxesboxes

Why do we need risk management in schools?

Accidents and ill health can ruin lives, damage reputations Accidents and ill health can ruin lives, damage reputations and cost moneyand cost money

It is not managerially possible for schools to completely It is not managerially possible for schools to completely eliminate risks nor fiscally prudent to insure potential riskeliminate risks nor fiscally prudent to insure potential risk

Schools cannot avoid accountability for its actions or Schools cannot avoid accountability for its actions or inactionsinactions

A well-planned, active program of risk anticipation and A well-planned, active program of risk anticipation and prevention is more preferable (a pro-active approach)prevention is more preferable (a pro-active approach)

What does it include?

Student and staff safety (bomb threat, death/suicide, gun/other Student and staff safety (bomb threat, death/suicide, gun/other weapons in school, hostage situation, weapons in school, hostage situation, kidapping/childnapping/missing student, medical emergency, kidapping/childnapping/missing student, medical emergency, sexual assault, sexual assault,

HealthHealthChild abuse/abduction, drug testing, drug testing and student Child abuse/abduction, drug testing, drug testing and student athletes, drug testing and employees, students/employees with Aidsathletes, drug testing and employees, students/employees with Aids

Chemical safety/natural gas/other toxic odorChemical safety/natural gas/other toxic odor Environmental affairsEnvironmental affairs Property protectionProperty protection Contingency planningContingency planning SecuritySecurity

TransportationTransportation Third party liabilityThird party liability Contractual liabilityContractual liability

Implications for Risk Management

Accidents, incidents, or transgressions are organizational Accidents, incidents, or transgressions are organizational managerial problems, not people problems. They are often managerial problems, not people problems. They are often dealt with ex post facto rather than through active program dealt with ex post facto rather than through active program of risk anticipation and preventionof risk anticipation and prevention

Insurance should be thought of only as financial protection Insurance should be thought of only as financial protection for unexpected failure in risk management programs, not for unexpected failure in risk management programs, not as the sole remedy for all accidental lossas the sole remedy for all accidental loss

Risk factors diminish with the expansion of the practice of Risk factors diminish with the expansion of the practice of prevention law:prevention law:

The lower the knowledge of legal procedures and the The lower the knowledge of legal procedures and the practice of judgment and foreseeability is, the higher the practice of judgment and foreseeability is, the higher the incidence of liability, environmental, and personnel lossincidence of liability, environmental, and personnel loss

Effective risk management requires effective leadershipEffective risk management requires effective leadership

Due Process

There are two kinds of due process:There are two kinds of due process:

Procedural due processProcedural due process

Substantive due processSubstantive due process Procedural due processProcedural due process

It entails fair warning and fair hearingIt entails fair warning and fair hearing

Fair warning: A person must be aware of the rules to Fair warning: A person must be aware of the rules to follow, or behavior that must be exhibited, and the follow, or behavior that must be exhibited, and the potential penalties for violationpotential penalties for violation

Fair hearingFair hearing

The individual must be given written statement of the The individual must be given written statement of the charges and the nature of the evidencecharges and the nature of the evidence

The individual must be informed of certain procedural The individual must be informed of certain procedural rights rights

Adequate time must be provided to prepare a defenceAdequate time must be provided to prepare a defence

There must be an opportunity for a formal hearingThere must be an opportunity for a formal hearing

Substantive due processSubstantive due process It is concerned with the basic legality of a legislative It is concerned with the basic legality of a legislative

enactmentenactment Guideline to ensure substantive due process:Guideline to ensure substantive due process:

LegalityLegality

Sufficient specificitySufficient specificity

Reason and sensiblenessReason and sensibleness

Adequate disseminationAdequate dissemination

Appropriate penaltiesAppropriate penalties

Landmark CasesGoss v. Lopez (1975)

Nine students at an Ohio public school received Nine students at an Ohio public school received 10-day suspensions for disruptive behavior 10-day suspensions for disruptive behavior without due process protections. The Supreme without due process protections. The Supreme Court ruled for the students, saying that once the Court ruled for the students, saying that once the state provides an education for all of its citizens, it state provides an education for all of its citizens, it cannot deprive them of it without ensuring the cannot deprive them of it without ensuring the process protectionsprocess protections

Surat Pekeliling Ikhtisas

Bil. 6/68 Bil. 6/68 Pembuangan murid-murid daripada sekolah rendah kerana kelakuan curangPembuangan murid-murid daripada sekolah rendah kerana kelakuan curang Bil. 6A 1975Bil. 6A 1975 Disiplin murid-murid menghisap rokokDisiplin murid-murid menghisap rokok Bil. 2/1976Bil. 2/1976 Potongan rambut murid-muridPotongan rambut murid-murid Bil. 8/1983Bil. 8/1983 Mengenakan hukuman biasa terhadap murid-murid yang melakukan perbuatan Mengenakan hukuman biasa terhadap murid-murid yang melakukan perbuatan

salah laku yang tidak dinyatakan dalam peraturan-peraturan pelajaran salah laku yang tidak dinyatakan dalam peraturan-peraturan pelajaran Bil.3 1993Bil.3 1993 Lapor kepada polis salah laku yang berbentuk jenayahLapor kepada polis salah laku yang berbentuk jenayah Bil. 7/1995Bil. 7/1995 Tatacara mengenakan tindakan dan hukuman terhadap pelajar-pelajar sekolahTatacara mengenakan tindakan dan hukuman terhadap pelajar-pelajar sekolah

Brown V. Board of Education (1954)

The court declared state laws establishing separate The court declared state laws establishing separate public schools for black and white students public schools for black and white students unconstitutional. The decision overturned the unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which Plessy v. Ferguson decision of 1896 which allowed state-sponsored segregation. This ruling allowed state-sponsored segregation. This ruling paved the way for integration and was a major paved the way for integration and was a major victory of the civil rights movementvictory of the civil rights movement

Five-Step Approach to Risk Management(London Borough of Bexley)

Step 1: Look for the hazardStep 1: Look for the hazard

Step 2: Decide who might be harm and howStep 2: Decide who might be harm and how

Step 3: Evaluate the riskStep 3: Evaluate the risk

Existing precautions are adequate/moreExisting precautions are adequate/more

should be done?should be done?

Step 4: Record your findingsStep 4: Record your findings

Step 5: Review your finding periodically and Step 5: Review your finding periodically and reviserevise

if necessary if necessary

Rate severity or consequence:Rate severity or consequence:

Extremely harmful = Death, major injury, major damage or Extremely harmful = Death, major injury, major damage or loss to property or equipmentloss to property or equipment

Harmful = Over three day injury, damage to property or Harmful = Over three day injury, damage to property or equipmentequipment

Slightly harmful = Minor injury or minor to property or Slightly harmful = Minor injury or minor to property or equipmentequipment

Rate likelihood:Rate likelihood:

Highly likely = Extremely or highly likely to occurHighly likely = Extremely or highly likely to occur

Likely = Frequent, often likely to occurLikely = Frequent, often likely to occur

Unlikely = Slight chance of occurringUnlikely = Slight chance of occurring

ExtremelyHarmful (A)

Harmful(B)

SlightlyHarmful

(C)Highly

Likely (1)Unacceptable (U) High (H) Medium (M)

Likely (2) High (H) Medium (M) Low (L)

Unlikely (3) Medium (M) Low (L) Trivial (T)

Risk Rating Chart

Action Phrases A1 Unacceptable (U)A1 Unacceptable (U)

Must receive immediately attention, activity should be halted, until Must receive immediately attention, activity should be halted, until adequate controls implementedadequate controls implemented

A2 B1 High (H)A2 B1 High (H)

High priority, urgent attention to reduce severity and/or likelihoodHigh priority, urgent attention to reduce severity and/or likelihood A3 B2 C1 Medium (M)A3 B2 C1 Medium (M)

Medium priority, must receive attention to reduce severity or Medium priority, must receive attention to reduce severity or likelihoodlikelihood

B3 C2 Low (L)B3 C2 Low (L)

Lower priority but must receive attention to verify if risk can be Lower priority but must receive attention to verify if risk can be reducedreduced

C 3 Trivial (T)C 3 Trivial (T)

Lowest priorityLowest priority

Tort (Tortus in Latin)

Tort is an actionable wrong, exclusive of a breach of contract, that the Tort is an actionable wrong, exclusive of a breach of contract, that the law will recognize and set right. A tort is a legal wrong against the law will recognize and set right. A tort is a legal wrong against the person, property, or reputation of another (Tort ialah satu perbuatan person, property, or reputation of another (Tort ialah satu perbuatan salah di mana mangsa mengalami kecederaan fizikal, reputasi atau salah di mana mangsa mengalami kecederaan fizikal, reputasi atau pada hartanya)pada hartanya)

Classification of tort:Classification of tort:The direct invasion of some legal right of the individual (e.g. invasion The direct invasion of some legal right of the individual (e.g. invasion of privacy)of privacy)The infraction of some public duty by which special damage accrues The infraction of some public duty by which special damage accrues to the individual (e,g, denial of constitutional right)to the individual (e,g, denial of constitutional right)The violation of some private obligation by which damage accrues to The violation of some private obligation by which damage accrues to the individual (e.g. negligence)the individual (e.g. negligence)

Negligence is the primary basis of tort liability suits filed against Negligence is the primary basis of tort liability suits filed against school districts (Kecuaian merupakan asas kepada dakwaan liabiliti school districts (Kecuaian merupakan asas kepada dakwaan liabiliti yang dikemukakan terhadap ke atas sekolah)yang dikemukakan terhadap ke atas sekolah)

Kecuaian sebagai satu “tort”Kecuaian sebagai satu “tort”

““Kecuaian bukan setakat tidak mengambil peduli Kecuaian bukan setakat tidak mengambil peduli atau perlakuan chuai … tetapi menampilkan atau perlakuan chuai … tetapi menampilkan konsep yang kompleks mengenai kewajipan, konsep yang kompleks mengenai kewajipan, kemungkinan dan kerugian yang dialami oleh kemungkinan dan kerugian yang dialami oleh seseorang” (Hakim Lord Wright, 1934)seseorang” (Hakim Lord Wright, 1934)

Two Major Categories of Torts

Intentional TortIntentional Tort Refer to offenses committed by a person who Refer to offenses committed by a person who

attempts/intends to do harmattempts/intends to do harm Intent refers to the awareness that injury will be the result Intent refers to the awareness that injury will be the result

of the actof the act A common type of intentional tort is assault or batteryA common type of intentional tort is assault or battery Assault refers to an overt attempt to physically injure a Assault refers to an overt attempt to physically injure a

person/create a feeling of fear and apprehension of injuryperson/create a feeling of fear and apprehension of injury No actual physical need to take place for an assault to take No actual physical need to take place for an assault to take

placeplace

Battery is an intentional tort that results from Battery is an intentional tort that results from physical contactphysical contact

A person threatens another causing apprehension A person threatens another causing apprehension and fear (assault) + actually strikes another person and fear (assault) + actually strikes another person and result in injury (battery) = International tortand result in injury (battery) = International tort

Contoh Kes

Seorang guru mendapati dua orang pelajar sedang Seorang guru mendapati dua orang pelajar sedang bertumbuk dan bertindak untuk meleraikan bertumbuk dan bertindak untuk meleraikan mereka. Dalam proses berbuat demikian, salah mereka. Dalam proses berbuat demikian, salah orang pelajar berdegil dan mendakwa guru orang pelajar berdegil dan mendakwa guru tersebut telah mencabar hak asasi beliau kerana tersebut telah mencabar hak asasi beliau kerana memegang tangannya dan memekik “Lepaskan memegang tangannya dan memekik “Lepaskan tangan aku, saya berhak untuk berbuat demikian!” tangan aku, saya berhak untuk berbuat demikian!”

Bolehkah guru ini didakwa di bawah kesalahan Bolehkah guru ini didakwa di bawah kesalahan “assault/battery?”“assault/battery?”

Compensatory damages vs. punitive damages

Compensatory damages: Actual loses (medical Compensatory damages: Actual loses (medical bills, lost wages/income/court costs and the such)bills, lost wages/income/court costs and the such)

Punitive damages: Monetary awards to punish the Punitive damages: Monetary awards to punish the defendants for wrongful actions and deter such defendants for wrongful actions and deter such actions in the futureactions in the future

Reasonable/Prudent Person (Orang yang munasabah/biasa serta waras)

Negligence is doing something that a reasonably prudent Negligence is doing something that a reasonably prudent person would not have done, or failing to do something person would not have done, or failing to do something that a reasonably prudent person would have done when that a reasonably prudent person would have done when confronted by like or similar circumstancesconfronted by like or similar circumstances

Reasonable/prudent person Reasonable/prudent person The defendant is not identified with an ordinary individual The defendant is not identified with an ordinary individual

who might occasionally do unreasonable things, instead, who might occasionally do unreasonable things, instead, he/she is identified as a prudent and careful person who is he/she is identified as a prudent and careful person who is always up to the standardalways up to the standard

(Pengetua/guru tidak perlu wajib menjadi seorang yang (Pengetua/guru tidak perlu wajib menjadi seorang yang dianggap sempurna tetapi memadai sekadar sebagai dianggap sempurna tetapi memadai sekadar sebagai seorang yang munasabah)seorang yang munasabah)

The degree care exercised by a reasonable teacher The degree care exercised by a reasonable teacher is determined by:is determined by:

Training and experience of the teacher involvedTraining and experience of the teacher involved Students’ ageStudents’ age The environment in which the injury occurThe environment in which the injury occur The type of instructional activityThe type of instructional activity The presence/absence of the supervising teacherThe presence/absence of the supervising teacher Students’ disability (if any)Students’ disability (if any)

Duty and Standard of Care (Kewajipan/Standard berjaga-jaga)

The concept of “in loco parentis” is to be practicedThe concept of “in loco parentis” is to be practiced Duty is an obligation that derives from the special Duty is an obligation that derives from the special

relationship between parties such as that between relationship between parties such as that between an employee and a student, the an employee and a student, the district/government and an employee, or the district/government and an employee, or the district and a patron.district and a patron.

The duty to protect is part of The duty to protect is part of teachers’/administrators’ responsibilitiesteachers’/administrators’ responsibilities

Standard of care is relative to the need and the Standard of care is relative to the need and the occasion, what is proper under one circumstance occasion, what is proper under one circumstance may be negligent under another.may be negligent under another.

The standard of care imposed upon school The standard of care imposed upon school personnel in carrying out this duty to supervise is personnel in carrying out this duty to supervise is identical to that required in the performance of identical to that required in the performance of their other duties. This uniform standard to which their other duties. This uniform standard to which they are held is the degree of care which a person they are held is the degree of care which a person of ordinary prudence, charged with comparable of ordinary prudence, charged with comparable duties, would exercise under the same duties, would exercise under the same circumstances. (California Supreme Court)circumstances. (California Supreme Court)

Duties include, but not confine to the following:Duties include, but not confine to the following: Adequate supervisionAdequate supervision Maintenance of equipment and facilitiesMaintenance of equipment and facilities Heightened supervision of high-risk activitiesHeightened supervision of high-risk activities

(Pentadbir dan guru di sekolah berada di bawah satu (Pentadbir dan guru di sekolah berada di bawah satu kewajipan bertindak secara good faith terhadap majikan kewajipan bertindak secara good faith terhadap majikan mereka)mereka)

Isu mengimbangi kewajipan berjaga-jaga dengan Isu mengimbangi kewajipan berjaga-jaga dengan keperluan memberi peluang kepada pelajar untuk keperluan memberi peluang kepada pelajar untuk memajukan kebolehan bertanggungjawab terhadap memajukan kebolehan bertanggungjawab terhadap keselamatan diri sendirikeselamatan diri sendiri

Kewajipan berjaga-jaga kepada pelajar oleh pihak sekolah Kewajipan berjaga-jaga kepada pelajar oleh pihak sekolah terdiri daripada dua aspek:terdiri daripada dua aspek:Memberikan penyeliaan yang cukup Memberikan penyeliaan yang cukup Menyediakan tempat dan kemudahan serta alat sekolah Menyediakan tempat dan kemudahan serta alat sekolah yang selamatyang selamat

Duty and Standard of Care and Student Age

Two age levels are significant in terms of court Two age levels are significant in terms of court decisions: Ages 1 – 14 and Ages 15 – 18decisions: Ages 1 – 14 and Ages 15 – 18

Dunklee and Shoop (2006) believe that the Dunklee and Shoop (2006) believe that the required degree of duty and standard of care required degree of duty and standard of care decreases during the elementary school years decreases during the elementary school years

The onset of puberty and adolescence may require The onset of puberty and adolescence may require a return to maximum levels of duty and standard a return to maximum levels of duty and standard of care during the middle school years, and that of care during the middle school years, and that the required level decreases progressively for the required level decreases progressively for senior and high school studentssenior and high school students

Foreseeability

Foreseeability is the degree to which the defendant could have or Foreseeability is the degree to which the defendant could have or should have reasonably been able to anticipate the risk of injury /harm should have reasonably been able to anticipate the risk of injury /harm to the plaintiff that might result from the action/inaction (Alexander & to the plaintiff that might result from the action/inaction (Alexander & Alexander, 2002)Alexander, 2002)

Foreseeability regarding the risks in an educational setting is greater Foreseeability regarding the risks in an educational setting is greater due to educators’ superior knowledge, special skills, and professional due to educators’ superior knowledge, special skills, and professional experienceexperience

If a school administrator/teacher could have, or should have, foreseen If a school administrator/teacher could have, or should have, foreseen or anticipated an accident, the failure to do so may be ruled negligent.or anticipated an accident, the failure to do so may be ruled negligent.

The concept of foreseeability expects school employee to perform as a The concept of foreseeability expects school employee to perform as a reasonably prudent person of similar training and circumstances could reasonably prudent person of similar training and circumstances could perform.perform.

If the ordinary exercise of prudence and foresight could have If the ordinary exercise of prudence and foresight could have prevented an accident, the courts have ruled schools to be negligent prevented an accident, the courts have ruled schools to be negligent when they have not avoided a foreseeable danger to students or adults.when they have not avoided a foreseeable danger to students or adults.

Types of negligence

Nonfeasance: Failing to act when there is a duty to actNonfeasance: Failing to act when there is a duty to act Misfeasance: Acting, but in an improper mannerMisfeasance: Acting, but in an improper manner Malfeasance: Acting, but guided by a bad motiveMalfeasance: Acting, but guided by a bad motive Prerequisites for a negligence action:Prerequisites for a negligence action:

The defendant must have duty to plaintiffThe defendant must have duty to plaintiff

The defendant must have failed to exercise a reasonable standard of The defendant must have failed to exercise a reasonable standard of care in his/her actionscare in his/her actions

The defendant’s actions must be the proximate cause of the injury to The defendant’s actions must be the proximate cause of the injury to the plaintiffthe plaintiff

The plaintiff must prove that he/she suffered an actual injuryThe plaintiff must prove that he/she suffered an actual injury

Empat syarat untuk plantif menuntut ganti rugi Empat syarat untuk plantif menuntut ganti rugi terhadap defendanterhadap defendan

1.1. Kewajipan berjaga-jaga yang sedia adaKewajipan berjaga-jaga yang sedia ada2.2. Kewajipan dimungkari akibat defendan gagal Kewajipan dimungkari akibat defendan gagal

mematuhi tahap berjaga-jaga yang diperlukan mematuhi tahap berjaga-jaga yang diperlukan (berdasarkan ujian orang yang munasabah)(berdasarkan ujian orang yang munasabah)

3.3. Kemungkiran kewajipan oleh defendan Kemungkiran kewajipan oleh defendan menyebabkan plantif mengalami kecederaanmenyebabkan plantif mengalami kecederaan

4.4. Terdapat satu perhubungan yang rapat antara Terdapat satu perhubungan yang rapat antara kemungkiran dengan kecederaan plantifkemungkiran dengan kecederaan plantif

Contributory Negligence

The injury is caused by student’s own negligence The injury is caused by student’s own negligence (need to be proved) then it is considered that the (need to be proved) then it is considered that the student has contributed to his/her own injurystudent has contributed to his/her own injury

When a student disregards the instruction, When a student disregards the instruction, warning,/advise of an educator, the student can be warning,/advise of an educator, the student can be held liable for his/her own injuryheld liable for his/her own injury

The courts (to date) have held that children under The courts (to date) have held that children under the age of 7 may not be held responsible for their the age of 7 may not be held responsible for their own negligenceown negligence

Common conditions resultingin tort reliability for negligence

Failure to provide adequate supervision (foreseeability + proximate Failure to provide adequate supervision (foreseeability + proximate cause (refer to case 1), general and specific supervision (refer to case cause (refer to case 1), general and specific supervision (refer to case 2)2)

Foreseeability: If the school district could have, should have, foreseen Foreseeability: If the school district could have, should have, foreseen or anticipated an accident, the failure to do so may be rule negligentor anticipated an accident, the failure to do so may be rule negligent

Failure to aid the injured/sickFailure to aid the injured/sick Creation of further damage through misguided effortsCreation of further damage through misguided efforts Permitting students to play unsafe gamesPermitting students to play unsafe games Permitting use of defective equipmentPermitting use of defective equipment Maintaining attractive nuisances (unprotected, unguarded, unsafe Maintaining attractive nuisances (unprotected, unguarded, unsafe

condition that attract a child to play – refer to case 3)condition that attract a child to play – refer to case 3) Failure to provide adequate instructionFailure to provide adequate instruction Failure to give adequate warningFailure to give adequate warning

Entrusting dangerous devices to students incompetent to Entrusting dangerous devices to students incompetent to use themuse them

Taking unreasonable risksTaking unreasonable risks Improper organized field tripsImproper organized field trips

Cases

Case 1Case 1 A student was hit by a bat swung by another student. The A student was hit by a bat swung by another student. The

teacher then was standing 30 feet away, passing milk, at teacher then was standing 30 feet away, passing milk, at the time of accident. Was the teacher liable?the time of accident. Was the teacher liable?

Case 2Case 2A six year old student was injured at a construction site A six year old student was injured at a construction site next to an elementary school where remodeling was being next to an elementary school where remodeling was being done. School officials knew of the potential dangers at the done. School officials knew of the potential dangers at the site and reminded students daily to stay away from the site and reminded students daily to stay away from the area. No other precautions to protect students were taken. area. No other precautions to protect students were taken. Was the school liable?Was the school liable?

Case 3Case 3 A young girl, who sustained an injury while watching a A young girl, who sustained an injury while watching a

baseball game. While playing around an abandoned long-baseball game. While playing around an abandoned long-jump pit, she was frightened by a dog. She fell backward jump pit, she was frightened by a dog. She fell backward and cut her hand on a piece of broken glass in the pit that and cut her hand on a piece of broken glass in the pit that had been covered by sand. The girl presented evidence had been covered by sand. The girl presented evidence that the school knew of the dangerous condition as the that the school knew of the dangerous condition as the school’s janitor and school authorities had received written school’s janitor and school authorities had received written notification of the condition of the pit. Was the school notification of the condition of the pit. Was the school liable?liable?

Case 5Case 5 Cliff Brown, a fifth-grade teacher, was standing at the Cliff Brown, a fifth-grade teacher, was standing at the

front of his class when there was a knock at the door. He front of his class when there was a knock at the door. He opened the door to find a person he vaguely recognized. opened the door to find a person he vaguely recognized. She said her name was Mrs. Parson and she needed to take She said her name was Mrs. Parson and she needed to take her son Brian to the dentist. Brian got his books, left, and her son Brian to the dentist. Brian got his books, left, and was never seen again.was never seen again.

Safety issuesSafety issues Releasing a child to an adultReleasing a child to an adult School personnel should be very cautious about the physical custody School personnel should be very cautious about the physical custody

of childrenof children Who has the parental right?Who has the parental right? The legal parent is that person whom the legal system recognizes as The legal parent is that person whom the legal system recognizes as

having the legal rights of parenthoodhaving the legal rights of parenthood How about child born to biological parents who are not married?How about child born to biological parents who are not married? In the case of divorce, it depends on whether the court grants In the case of divorce, it depends on whether the court grants

sole/jount custodysole/jount custody

Case 6Case 6 A high school band member, drowned in a hotel pool A high school band member, drowned in a hotel pool

while on a trip with the band. The student dove in the pool while on a trip with the band. The student dove in the pool and minutes later was found at the bottom of the pool. and minutes later was found at the bottom of the pool. Two chaperons assigned to supervise the pool activity Two chaperons assigned to supervise the pool activity immediately provided mouth-to-mouth resuscitation and immediately provided mouth-to-mouth resuscitation and continued to do so until the ambulance arrived. The continued to do so until the ambulance arrived. The parents of the student claimed the school was negligent in parents of the student claimed the school was negligent in failing to provide adequate supervision for their son, who failing to provide adequate supervision for their son, who did not know how to swim.did not know how to swim.

Case 4Case 4 A student fell into a ditch while attempting to catch a pass A student fell into a ditch while attempting to catch a pass

in a game of football played during the school’s lunch in a game of football played during the school’s lunch period. The principal was aware of the ditch on the period. The principal was aware of the ditch on the school’s property but had made minimal attempts to warn school’s property but had made minimal attempts to warn students and no attempt was made to fill the pitchstudents and no attempt was made to fill the pitch

Types of negligence

OmissionOmission

Harm occurs due to the lack of care the law expects of a Harm occurs due to the lack of care the law expects of a reasonable individual (e.g. nonfeasance)reasonable individual (e.g. nonfeasance)

CommissionCommission

Taking an improper action when there is a duty to acatTaking an improper action when there is a duty to acat Misfeasance may be either an act of commission or an act Misfeasance may be either an act of commission or an act

of omissionof omission

Waiver of liability (permission slips)

Don’t rely on waivers because parents cannot waive their Don’t rely on waivers because parents cannot waive their children’ claims for damageschildren’ claims for damages

Waivers are useful for public relations purposesWaivers are useful for public relations purposes It is not true under the law that a waiver of liability truly It is not true under the law that a waiver of liability truly

protects the school or the teacher from court actionprotects the school or the teacher from court action Schools cannot be absolve of their obligation toward Schools cannot be absolve of their obligation toward

students by a parental waiver or releasestudents by a parental waiver or release Parental waivers/permission slips do not relieve Parental waivers/permission slips do not relieve

teachers/schools of liability if they fail to discharge their teachers/schools of liability if they fail to discharge their duties in an appropriate mannerduties in an appropriate manner

Safety Issues

Abuse of studentsAbuse of students School ViolenceSchool Violence Gang behaviorsGang behaviors Search and seizureSearch and seizure

Abuse of Students

Teacher-to-student sexual abuse is a serious problemTeacher-to-student sexual abuse is a serious problem It happens on a continuum of “unwanted touching” to It happens on a continuum of “unwanted touching” to

sexual relationships and serial rapesexual relationships and serial rape Other adults involved include principals, janitors, bus Other adults involved include principals, janitors, bus

drivers, and librariansdrivers, and librarians The abuse include: overly affectionately behaviors, The abuse include: overly affectionately behaviors,

inappropriate, noneducation-related contact, and inappropriate, noneducation-related contact, and inappropriate nonprofessional behaviorinappropriate nonprofessional behavior

Examples

A teacher (male) had his arm around a girl student A teacher (male) had his arm around a girl student in a shopping mallin a shopping mall

Teacher telling sexually explicit jokes in classTeacher telling sexually explicit jokes in class Personally taking young kids (first graders) to the Personally taking young kids (first graders) to the

restroomrestroom

School Violence

Gang behaviors Gang behaviors Policy regarding Gang Activity (Developed by the Policy regarding Gang Activity (Developed by the Midlothian, Illinois School Board)Midlothian, Illinois School Board)

No student on or about school property or at any school No student on or about school property or at any school activity shall:activity shall:Wear, possess, distribute, display or sell any clothing, Wear, possess, distribute, display or sell any clothing, jewelry, emblem, badge, symbol, sign, or other things that jewelry, emblem, badge, symbol, sign, or other things that is evidence of membership or affiliation in a gangis evidence of membership or affiliation in a gangCommit any act or omission or use any speech either Commit any act or omission or use any speech either verbal or nonverbal (gestures, handshakes, etc) showing verbal or nonverbal (gestures, handshakes, etc) showing membership or affiliation in a gangmembership or affiliation in a gang

Gang Bahaviors

Use any speech or commit any act or omission in Use any speech or commit any act or omission in furtherance of the interests of any gang/gang activity, furtherance of the interests of any gang/gang activity, including but not limited to:including but not limited to:

A. Soliciting others for membership in a gangA. Soliciting others for membership in a gang

B. Requesting any person to pay protection or otherwise B. Requesting any person to pay protection or otherwise intimidating or threatening any person:intimidating or threatening any person:

C. Committing any other illegal act or other violation of C. Committing any other illegal act or other violation of school district policiesschool district policies

D. Inciting other students to act with physical violence D. Inciting other students to act with physical violence upon any other personupon any other person

Kategori Kesalahan Pelajar

Kategori:Kategori:Kesalahan beratKesalahan beratKesalahan sederhanaKesalahan sederhanaKesalahan ringanKesalahan ringanKesalahan biasaKesalahan biasa

Dokumen rujukan untuk menangani disiplin pelajar:Dokumen rujukan untuk menangani disiplin pelajar:Ordinan Pelajaran 1957Ordinan Pelajaran 1957Peraturan-peraturan Pelajaran (Disiplin sekolah)1959Peraturan-peraturan Pelajaran (Disiplin sekolah)1959Akta Pelajaran 1961/1996Akta Pelajaran 1961/1996Pekeliling Ikhtisas KPMPekeliling Ikhtisas KPMBuku-buku peraturan yang berkaitanBuku-buku peraturan yang berkaitan

Surat Pekeliling Berkaitan

Bil. 16/98Bil. 16/98 Menangani kegiatan genster di sekolahMenangani kegiatan genster di sekolah Bil. 6/2000Bil. 6/2000 Menangani masalah keselamatan, dadah dan Menangani masalah keselamatan, dadah dan

genstergenster Bil. 11/2000Bil. 11/2000 Membanteras jenayah di kalangan murid sekolahMembanteras jenayah di kalangan murid sekolah

Search & Seizure(Fourth Amendment)

Protects rights of citizens to be secure in their Protects rights of citizens to be secure in their persons, houses, papers and effects against persons, houses, papers and effects against unreasonable search or seizureunreasonable search or seizure

It is the basis for litigation concerning the search It is the basis for litigation concerning the search of students’ lockers and personal belongingsof students’ lockers and personal belongings

Search & Seizure

Search and seizureSearch and seizureBalancing the school’s legitimate need to obtain information and the Balancing the school’s legitimate need to obtain information and the students’ right to privacystudents’ right to privacyA search shall be initiated by reasonable suspicion (less rigorous than A search shall be initiated by reasonable suspicion (less rigorous than probable cause required by a police officer)probable cause required by a police officer)Level of suspicion varies on the circumstances or the situation (in case Level of suspicion varies on the circumstances or the situation (in case emergency)emergency)Source reliabilitySource reliabilityScope of the search: degree of intrusiveness from search of a locker to Scope of the search: degree of intrusiveness from search of a locker to a strip searcha strip searchReasonable suspicion vs. common senseReasonable suspicion vs. common senseLockers remain the exclusive property of the school (fairly low degree Lockers remain the exclusive property of the school (fairly low degree of suspicion is needed)of suspicion is needed)

Cont …

Bookbags and pursesBookbags and purses

Requires a higher standard of protection for students, Requires a higher standard of protection for students, therefore school authority must exercise greater care therefore school authority must exercise greater care

Strip searchesStrip searches

The most controversial searchThe most controversial search

The courts have generally condemned strip searches in The courts have generally condemned strip searches in public schoolspublic schools

A body cavity search is the most intrusive type of search A body cavity search is the most intrusive type of search and should not be conducted by school employeeand should not be conducted by school employee

Student Discipline: Corporal Punishment

Corporal punishment and intentional tortsCorporal punishment and intentional torts Due process: Procedural and substantive due processDue process: Procedural and substantive due process Corporal punishment is physical punishment applied to modify Corporal punishment is physical punishment applied to modify

behaviorbehavior The use of corporal punishment is based on the concept of in loco The use of corporal punishment is based on the concept of in loco

parentisparentis School officials have broad authority to control the conduct of School officials have broad authority to control the conduct of

students, to take responsibility for conduct, and to punish misconduct students, to take responsibility for conduct, and to punish misconduct that has a negative impact on the school where school-related activities that has a negative impact on the school where school-related activities are concerned (Dunklee & Shoop, 2006)are concerned (Dunklee & Shoop, 2006)

Corporal punishment must be differentiated from assault and batteryCorporal punishment must be differentiated from assault and battery

Assault v. Battery

Assault is the intentional thereat of harmful or offensive Assault is the intentional thereat of harmful or offensive contact. The words must be accompanied by some overt contact. The words must be accompanied by some overt act, no matter how slight, that adds to the threatening act, no matter how slight, that adds to the threatening character of the wordscharacter of the words

Battery is the actual intentional infliction of harmful or Battery is the actual intentional infliction of harmful or offensive bodily contact. It is the intent to make contact offensive bodily contact. It is the intent to make contact and not intent to make injury.and not intent to make injury.For example, a teacher has intended only to threaten a For example, a teacher has intended only to threaten a student by grabbing the student’s arm and accidentally student by grabbing the student’s arm and accidentally injures the studentinjures the student

Corporal Punishment in Schools

The first country to prohibit corporal punishment The first country to prohibit corporal punishment was Poland in 1783was Poland in 1783

Corporal punishment in schools harms children Corporal punishment in schools harms children and damages their educationand damages their education

Children who are physically punished at school Children who are physically punished at school may become less likely than other children to may become less likely than other children to internalise moral values, and may become internalise moral values, and may become depressed or aggressive. depressed or aggressive.

((The United Nations World Report on Violence Against ChildrenThe United Nations World Report on Violence Against Children))

Surat Pekeliling Ikhtisas Bil. 10/2001Semua Guru adalah Guru Disiplin

3. …semua guru telah diperuntukkan dengan tanggungjawab untuk 3. …semua guru telah diperuntukkan dengan tanggungjawab untuk memastikan murid-murid mempamerkan tahap disiplin yang tinggi. …memastikan murid-murid mempamerkan tahap disiplin yang tinggi. …Pendekatan-pendekatan berbentuk pencegahan (preventive), didikan Pendekatan-pendekatan berbentuk pencegahan (preventive), didikan (educative), pembetulan (corrective), dan bukan hukuman (punitive) (educative), pembetulan (corrective), dan bukan hukuman (punitive) serta langkah yang sewajarnya hendaklah dilaksanakan terhadap serta langkah yang sewajarnya hendaklah dilaksanakan terhadap semua masalah disiplin. Guru-guru hendaklah sentiasa mengimbangi semua masalah disiplin. Guru-guru hendaklah sentiasa mengimbangi semua pendekatan tersebut dengan sifat-sifat prihatin, penyayang, semua pendekatan tersebut dengan sifat-sifat prihatin, penyayang, simpati dan empati terhadap masalah yang dihadapi oleh murid. simpati dan empati terhadap masalah yang dihadapi oleh murid. Sementara itu, kebenaran bagi guru-guru melaksanakan hukuman Sementara itu, kebenaran bagi guru-guru melaksanakan hukuman terhadap kesalahan disiplin murid hendaklah dibuat secara nyata dan terhadap kesalahan disiplin murid hendaklah dibuat secara nyata dan bertulis, iaitu pengetua/guru besar perlu menyediakan surat penurunan bertulis, iaitu pengetua/guru besar perlu menyediakan surat penurunan kuasa kepada guru-guru untuk melaksanakan hukuman tersebut.kuasa kepada guru-guru untuk melaksanakan hukuman tersebut.

Corporal PunishmentHukuman Dera

Pengertian Hukuman Dera ‘corporal punishment’Pengertian Hukuman Dera ‘corporal punishment’ Hukuman dera (rotan) boleh dikenakan (kecuali ke atas murid-murid Hukuman dera (rotan) boleh dikenakan (kecuali ke atas murid-murid

perempuan) tertakluk kepada syarat-syarat yang dinyatakan dalam perempuan) tertakluk kepada syarat-syarat yang dinyatakan dalam Peraturan-peraturan Pelajaran (Disiplin Sekolah) 1959.Peraturan-peraturan Pelajaran (Disiplin Sekolah) 1959.

Dijalankan sebaik-baik sahaja sesuatu salah laku itu dilakukan oleh Dijalankan sebaik-baik sahaja sesuatu salah laku itu dilakukan oleh murid. Hendaklah dibuat setelah sesuatu salah laku telah dapat murid. Hendaklah dibuat setelah sesuatu salah laku telah dapat disahkan.disahkan.

Dijalankan oleh Pengetua / Guru Besar sendiri atau oleh seorang guru Dijalankan oleh Pengetua / Guru Besar sendiri atau oleh seorang guru yang berdaftar yang telah diberikan kuasa secara nyata atau khas iaitu yang berdaftar yang telah diberikan kuasa secara nyata atau khas iaitu mengikut keadaan [Perkara 6 Ordinan Pelajaran, 1957, Peraturan-mengikut keadaan [Perkara 6 Ordinan Pelajaran, 1957, Peraturan-peraturan Pelajaran (Disiplin Sekolah) 1959].peraturan Pelajaran (Disiplin Sekolah) 1959].

Hukuman dera hendaklah dijalankan dengan menggunakan rotan Hukuman dera hendaklah dijalankan dengan menggunakan rotan ringan dan pukulan rotan hanya boleh dibuat pada tapak tangan atau di ringan dan pukulan rotan hanya boleh dibuat pada tapak tangan atau di bahagian punggung yang berlapik. bahagian punggung yang berlapik. Hukuman dera ke atas pelajar Hukuman dera ke atas pelajar perempuan dilarang secara nyata dalam [Perkara 5 Ordinan Pelajaran, perempuan dilarang secara nyata dalam [Perkara 5 Ordinan Pelajaran, 1957, Peraturan-peraturan Pelajaran (Disiplin Sekolah) 19591957, Peraturan-peraturan Pelajaran (Disiplin Sekolah) 1959

Surat Pekeliling Ikhtisas Hukuman Dera

Surat Pekeliling Ikhtisas Bil. 1/1972 Peraturan-Surat Pekeliling Ikhtisas Bil. 1/1972 Peraturan-peraturan (Tatatertib Sekolah) Pelajaran, 1959peraturan (Tatatertib Sekolah) Pelajaran, 1959Guru Besar diberi kuasa mengenakan hukuman Guru Besar diberi kuasa mengenakan hukuman dera (Corporal Punishment) terhadap murid-murid dera (Corporal Punishment) terhadap murid-murid lelaki dengan menggunakan rotan kecil atas tapak lelaki dengan menggunakan rotan kecil atas tapak tangan atau punggung yang ada pakaian.tangan atau punggung yang ada pakaian.