By Dean B. Eggert

PART I: RISK MANAGEMENT FOR EDUCATORS

Table of Contents

I. Overview

The purpose of this material is to provide the educator with a general understanding of the areas in which teachers and school districts encounter work-related risks. The goal of this material is to enable educators to readily identify risks and to equip them to respond appropriately. This material is not intended to substitute for legal counsel, nor is it intended to provide an exhaustive statement of the law.

Return to Table of Contents

II. Reporting Requirements imposed on Educators

This section provides a general overview of the areas in which educators are subject to a statutory reporting obligation. By diligently adhering to these requirements the educator can reduce district liability and fulfill their statutory obligations to protect students.

A. Reporting under the Safe Schools Act

This Act prohibits any "act of theft, destruction, or violence" within a "school zone" and subjects any student committing such an act to the provisions of N.H R.S.A. 193:13, "Suspension and Expulsion of Pupils". In addition to providing for the punishment of perpetrators, the Act contains certain public employee reporting requirements.

1. What is my Obligation?

School employees who witness, or who have information from the victim of, "an act of theft, destruction, or violence" in a "safe school zone" are required to file a report with their supervisor detailing any such acts they witness. The supervisor shall forward any report to the principal, who will file it with the police department in writing within 48 hours. ⁽¹⁾ The obligation to report a simple assault is deemed to be waived provided the district has a discipline policy requiring parental notification.

2. Where is the "Safe School Zone?"

The "safe school zone" is an area inclusive of "any school property or school buses."

3. What is an "act of theft, destruction, or violence?"

An "act of theft, destruction, or violence, includes the following criminal acts:

4. What goes in my report?

The Department of Education has created a standard form, ED #317 that may be used for reporting under the Safe School Zones Act.

5. Any exceptions?

Yes, a written report need not be made when law enforcement responds at the time of the incident and generates a written report.

6. Penalties for Failure to report

Any person who knowingly fails to comply with the reporting requirements under this statute (unless the report has been waived) is guilty of a violation.

B. Reporting Suspected Abuse and Neglect

Educators are under a statutory obligation to report suspected abuse and neglect. The primary body to whom this reporting obligation runs is the Department of Health and Human Services, Division for Children, Youth and Families.

1. What is my Obligation?

The Child Protection Act (N.H. R.S.A. 169:1, et seq) provides in N.H. R.S.A. 169-C:29, that, '[a]ny . . .teacher, school official, school counselor . . . or any other person having reason to suspect that a child has been abused or neglected shall report the same. . . " to the department.

2. What is "abuse or neglect?"

The term "abuse or neglect" are defined in the context of an "abused child," or a "neglected child." An "abused child" means any child who has been . . .

A "neglected child" means any child who has been . . .

Note: Certain forms of religiously based treatment may not constitute "neglect."

3. How and what do I report?

An initial immediate report must be made orally by " telephone or otherwise" and followed by a written report within 48 hours if requested by the department. A report should contain the following:

In addition, it is a good practice to alert the school principal of your need to file a report. In those circumstances where you have a question regarding your duty to report, you should consult your supervisor/principal with regard to whether or not you may have a duty to make a report.

4. Am I legally liable for making a report that turns out to be unfounded?

N.H. R.S.A. 169-C:31 provides that a "good faith" reporter is immune from civil and criminal liability. This liability does not extend to protect the reporter that has actually engaged in abuse and neglect from the consequences of their actions.

C. Policy Based Reporting Requirements

Most local school districts have policies which contain local reporting requirements. Even when the local policies do not require such, educators should, as a matter of best practice report the following:

D. The Duty to Report to the State Department of Education

Educators having reason to suspect that another educator has abused or neglected a student have a duty under ED 510.01 to report that suspected educator to the:

ED 510.01 goes on to state in subpart c. that a failure to report any charges of misconduct or incidence of suspected misconduct shall result in disciplinary actions being taken against the non-reporting educator by the State Board of Education.

Return to Table of Contents

III. The Duty to Refer

State and federal law also impose upon educators a duty to refer students with particular needs. The three primary areas in which an educator may have a duty to refer a student for evaluation or accommodation arise in the following circumstances:

A. Duty to Refer under the Individuals with Disabilities Education Act the "IDEA"

The IDEA imposes upon all Districts the obligation to promptly find children who may have educational disabilities, and to promptly determine whether or not they have an educational disability through the multi-disciplinary team process. This obligation includes a duty on the part of educators to refer students for evaluation by a multi-disciplinary team. A failure to timely refer and identify a student can translate into a far more difficult task to ensure that the student receives a FAPE.

B. Duty to Refer under Section 504

Section 504 provides that "[n]o otherwise qualified person with a disability shall, solely by reason of the disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance". ⁽²⁾ The protections of Section 504 apply to both students and teachers. In order to provide equality of opportunity to disabled students the District is frequently called upon to provide affirmative aids, services, or benefits known as "accommodations."

Section 504 is broader in scope than the IDEA. While the IDEA focuses on an educational disability, Section 504 deals with a more inclusive definition of disability. Simply put, a disability under Section 504 usually consists of a physical or mental impairment which substantially limits one or more of that person's major life activities.

As an educator, you have a duty to refer a student who appears to require consider under Section 504 to your building level 504 coordinator.

C. Americans with Disabilities Act. The "ADA"

Districts are required to also provide access to disabled students. The ADA may require modifications in order to afford a student equal access or opportunity to the District's programs and activities. Educators should promptly report an observed access difficulties to the District's ADA Coordinator.

Return to Table of Contents

IV. An Educator's General Liability

An educator is not automatically protected from civil liability for their actions. There are two key statutes that define when a school district will step forward and indemnify an educator from liability.

A. Indemnification for Damages N.H. R.S.A. 31:105

A school district may by a vote of the governing body indemnify and save harmless for loss or damage occurring after said vote any person employed by it from personal financial loss and expense including reasonable legal fees and costs, if any arising out of any claim, demand, suit or judgment by reason of negligence or other act resulting in accidental injury to a person or accidental damage to, or destruction of property if the indemnified person at the time of the accident resulting in the injury, damage, or destruction was acting in the scope of employment.

This statute is permissive in nature. It means that a school district does not have to indemnify an employee. Most importantly, this statute does not extend to the following:

B. Indemnification for Civil Rights Suits: N.H. R.S.A. 31:106

All school districts shall indemnify and save harmless any person employed by it from personal financial loss and expense including reasonable legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of any act or omission constituting a violation of the civil rights of an employee, teacher or student or any other person under federal law if such act or omission was not committed with malice, and if the indemnified person at the time of such act or omission was acting within the scope of employment.

In contrast to the general indemnification statute, this obligation is mandatory. However, it too is limited in scope. An educator will not be indemnified for an intentional malicious act.

C. The Duty of Educators to provide adequate protection or supervision to students.

Marquay v. Eno, 139 N.H. 708 (1995), is a landmark case in this state with respect to the liability of teachers for failing to provide adequate protection or supervision to students. Marquay involved a lawsuit brought by three women who were formerly students in the Mascoma Valley Regional School District. Each woman alleged that she was exploited, harassed, assaulted and sexually abused by one or more employees of the school district. The alleged perpetrators were teachers and coaches of the students at various times over the course of their junior high and high school years. Each woman alleged that a host of school employees, including other teachers, coaches, superintendents, principals and secretaries were either aware or should have been aware of the abuse. The women alleged that these other employees were aware of the abuse because the employees had either witnessed inappropriate conduct by the abusing employees or were told about the inappropriate conduct by these three women and other students. The women sought damages against the school district, the abusing employees, and the non-abusing employees they contended were aware, or should have been aware, of the abuse. Among the non-abusing employees named as defendants were several of the women's classroom teachers.

The school district and several of the non-abusing employees moved to dismiss the claims against them, contending that they did owe the students any duty to protect them from harm by the abusing employees. The Court disagreed, ruling that schools share a special relationship with students entrusted to their care, which imposes upon them certain reasonable duties of supervision. The Court instructed that the scope of the duty owed is limited by what risks are reasonably foreseeable to the actor. That is, a party will be held liable for negligence if he or she could reasonably have foreseen that his or her conduct would result in an injury, or if his or her conduct was not reasonable in light of what he or she could anticipate.

The Court declined to hold that every school district employee has a personal duty to all students simply by virtue of receiving a paycheck from the district. Rather, the Court held that the duty falls upon those employees who have supervisory responsibility over students and who thus have stepped into the role of parental proxy. The Court instructed:

"[t]hose employees who share such a relationship with a student, and who acquire actual knowledge of abuse, or who learn of facts which would lead a reasonable person to conclude that a student is being abused are subject to liability if their level of supervision is unreasonable and is a proximate cause of a student's injury."

The Court thus refused to dismiss the claims against the women's classroom teachers who contended that they were unaware of the abuse.

Under this holding, the Court also stated that a school employee may be subject to liability for injuries that occurred off school premises, if the student can show that the employee's negligent acts or omissions proximately caused the injury to the student.

D. Examples of Recent Liability theories

There is value in considering some of the recent liability theories that have been advanced by parents and students.

1. The Duty to protect students from other students

There have been a number of cases alleging that educators had a duty to protect a student from injury by other students. The theory alleged by the parents is that the educators assumed a duty to protect the student from injury by another student and that the educator knew or should have known that the offending student had a propensity for violent behavior, and that knowing such, the educators should have taken steps to protect the victim.

While Courts have been reluctant to impose such a duty, educators should take threats of student on student violence seriously, and should react in a manner that defuses the risk.

2. The Duty in administering medications

Teachers and aides are sometimes placed in the position of administering a medical procedures to a student. No teacher or aide should do such without:

Two recent cases are instructive on this issue and illustrate that liability theories can arise from both administering and failing to administer medical treatment:

a. Nance v. Matthews, 20 IDELR 3 (Ala. 1993):

A student with spina bifida allegedly sustained physical injuries and mental trauma when an aide failed to catheterize her -- a procedure which was necessary due to the student's recent bladder surgery. The aide had been hired by the school system to care for the student, and she allegedly failed to perform that duty after she was advised of the need to do so. The student's parents brought suit against the school principal, school nurse, special education director, and special education aide. The Court allowed the claim against the aide to proceed, but dismissed claims against the other employees alleging that they negligently or wantonly failed to supervise and train the aide. The Court ruled that those individuals were protected by discretionary function immunity from liability for negligent supervision and training of the aide, due to the fact that their supervisory and training responsibilities required constant decision-making. Moreover, they were protected by qualified immunity from liability for wanton misconduct, absent a showing of bad faith.

b. Frederico v. Order of Saint Benedict in Rhode Island, 23 IDELR 215 (1st Cir. 1995):

Medical attention required by a student with asthma, after he had an attack onset by a food allergy, was not as discernible as that required by the student in Nance -- making the determination of liability an even more complicated one. The student died as a result of the attack. At trial, the experts disagreed over whether administration of an epinephrine injection, which the school did not apply, would have saved the student's life. A jury returned a verdict in favor of the school. On appeal, the Court of Appeals for the First Circuit held that the jury had properly been instructed that the school was required to act as a reasonable school would in responding to the medical needs of students, but that the standard did not make the school responsible for guaranteeing the health of its students or for assuming the role of a physician in diagnosing and treating its students.

c. Application:

These cases indicate that the risk of liability is greater in cases where the student's disabilities require the administration of medical procedures by school personnel, on a routine basis, as a condition of the student's ability to function in the school setting, i.e. (the types of medical procedures which are contemplated under the "school health services" category of related services). The liability risk is lower in a situation where emergency medical measures are indicated and there are no set procedures in place which have been disregarded, i.e., (the types of medical procedures performed by a physician which are deemed to be medical services exempt from coverage under the IDEA). It also seems clear that an individual, such as an aide, who is charged with administering a medical procedure in the course of normal work duties, can be held liable for knowingly disregarding those duties. However, as demonstrated in Nance v. Matthews, other school personnel who are not involved in the direct administration of those procedures, and act more in terms of a supervisory capacity, such as an administrator, are less likely to be held liable unless the actor's negligence can be clearly attributed to the administrator.

3. The Duty to Discipline with care

Suffice it to say, corporal punishment has been explicitly proscribed by the State Department of Education. However, the abolition of corporal punishment did not eliminate all potential liability for educators with regard to student discipline. The improper use of restraint, and the use of inappropriate disciplinary techniques may also result in claims of liability on the part of the educator. A few examples from recently litigated cases are instructive:

a. Heidemann v. Rother, 24 IDELR 167 (8th Cir. 1996):

The Court of Appeals held that the use of the "blanket-wrapping" technique recommended by a licensed professional therapist to calm and relax a student with severe mental and physical disabilities was not an unreasonable bodily restraint and, therefore, not a due process violation. The school officials were not expected to know that the technique is a disputed practice, particularly since they were relying on the therapist's advice.

b. Rasmus ex rel. Rasmus v. State of Arizona, 24 IDELR 824 (D. Ariz. 1996):

The Federal District Court found that locking a student with ADD and an emotional disability in a small, lighted, unfurnished room (the "time-out" room), where the student could hear and speak with the teacher, and could be observed by the teacher, as discipline for violent behavior, did not violate the student's due process rights since the interference with his liberty interests was de minimis. The employees were also granted immunity by the court.

c. Ronnie Lee S. v. Mingo Country Bd. Of Educ., 27 IDELR 202, (W.Va. 1997):

A West Virginia Appeals Court ruled that a state law claim for damages arising from the alleged improper use of restraining device on an autistic student was not barred by a written settlement between the parties or the IDEA. The parents had already exhausted their administrative remedies under the IDEA, resulting in a written settlement agreement. The settlement agreement, according to the Court, only covered the student's education program and the use of restraining devices was not mentioned. In any event, the claims for damages are not IDEA claims, therefore exhaustion of administrative remedies is not required. Even if exhaustion is required, it would be futile because the remedies sought by the parents are not available under the IDEA.

4. The Duty to Protect Students from Sexual Harassment

Title IX protects students from teacher on student sexual harassment. The United States Supreme Court has recently ruled that districts are not liable under Title IX for teacher on student sexual harassment unless an employee with supervisory power over the offender actually knew of the abuse, had the power to end it and failed to act. However, this decision in no way relieves an educator from liability for sexual harassment, instead, it simply means that the educator will be the primary target in any subsequent litigation. Educators should exercise extreme care to ensure that they do not engage in any conduct that could be construed or misconstrued as sexual harassment.

E. Teachers as Witnesses

With increasing frequency teachers are being subpoenaed to testify in domestic litigation. A teacher who receives a subpoena or is asked to testify in a domestic matter is placed in a "no-win" situation. Particularly in custodial matters, the teacher runs the risk of alienating one, or both parents.

When approached by a lawyer who represents a parent the teacher should promptly notify their principal of the contact. This will provide the District with an opportunity to determine whether:

As a general rule, educators should remember that they are tasked with educating students. They are not tasked with making judgments with regard to child custody matters. Having said that, every educator should be prepared to testify truthfully and accurately as to what they have observed in the classroom regarding the student.

F. Threatened Litigation

At some point in your career you may encounter a parent, a student, or a third party who threatens litigation against you, the District, or both. The key to managing that threat is prompt reporting. Any threat of litigation should be immediately reported to your principal. A failure to promptly report such a threat can compromise the ability of the District and the District's self-insurance program to fairly and accurate assess the risk posed by the litigation threat.

Return to Table of Contents

V. Protecting your Teaching Credential

A teacher's certification is their "meal ticket" in New Hampshire. Therefore an educator should exercise great care to maintain the level of professionalism that does not jeopardize their certification. The State Department of Education, Bureau of Credentialing has recently hired a full-time investigator who is tasked with enforcing the state teaching standards. There is every indication that the State Department of Education is seriously upgrading the quality of its enforcement measures.

N.H. R.S.A. 189:14-c provides that any teacher certified in New Hampshire who has been convicted of any felony involving child pornography or of a felonious sexual assault on a minor or of any sexual assault, shall have their teacher certification revoked. A District is required by law to immediately terminate a teacher with such a conviction.

Incidentally, teachers are prohibited by state law from:

A. Reasons for Termination during your Contract

In addition to the reasons set forth above, a teacher may be terminated for the following reasons:

However, NO teacher shall be dismissed before the expiration of the period for which they were engaged to teach without having been previously:

Any teacher facing the specter of termination should be in consultation with their union representative.

B. Nonrenewal, Tenure and The Holy Grail?

As a general rule, a teacher may be nonrenewed provided they receive notice in writing of the District's decision to nonrenew by April 15. A teacher who has taught for three consecutive years in the District may request in writing within ten (10) days of receipt of a notice of nonrenewal:

Teachers should be familiar with their rights under N.H. R.S.A. 189:14-a.

Conclusion

Return to Table of Contents

Part II: The Legal Responsibilities of Educators Under the IDEA

See materials from seminar of February 21, 2000.

NOTES

1. See N.H. R.S.A. 193-D:4

2. 29 U.S.C. 794