Updated: Jan 31
Every year, school districts and educational institutions around the country spend hundreds of thousands to millions of dollars on legal settlements, jury verdicts, damage settlements (monetary), legal fees, and administrator time addressing civil claims of harassment, misconduct, discrimination, and bullying. Furthermore, these expenses can cause tremendous stress for administrators and erode community trust. However, the implementation of legally sound intake and investigation procedures could candrastically reduce or eliminate such expenses.
In civil law, a duty of care is an obligation imposed on those who are responsible for the safety and well-being of others. This responsibility requires individuals to use reasonable judgment when performing any actions that could potentially cause harm to another person. We owe this duty of care to students in general, student-athletes we coach, neighbor children in our homes, or employees we supervise. Individuals should consider the consequences of their actions to make sure they are not putting others at risk.
The standard of care sets out what is considered reasonable behavior for someone under a duty of care. While the standard of care for an administrator varies depending on state laws and local policies, school administrators will be assessed on the thoroughness of their policies, prevention efforts, hiring procedures, investigation procedures, record keeping, monitoring and supervision schedules, and efforts to remedy concerns and complaints. Schools and other educational institutions have an obligation to their students and staff, meaning they can be held liable if there are issues of sexual misconduct, bullying, or harassment and they are not appropriately prevented or addressed. They can even be liable for the behavior of third parties, both on and off campus, so it is a significant responsibility that must not be taken lightly.
Another question that often arises is “What about what is commonly practiced?” In general, simply following a custom does not provide an adequate defense against negligence. For example, it would not be acceptable for a coach to ignore hazing rituals being carried out in their presence, even if such conduct is considered common practice in the profession. In most situations, what is reasonable and accepted will be the same, but this isn’t always true. If an industry has not adopted necessary safety measures, it cannot serve as a benchmark for determining what constitutes proper care.
What is Negligence?
Negligence is when someone fails to act in accordance with what would be expected of them in a certain situation, especially when they have a responsibility towards those affected. This can range from totally unforeseeable accidents causing injury, to deliberately harming another, which could result in criminal prosecution. In the case of school districts, negligence may lead to liability if someone is injured as a result.
Negligence lies between intentional or criminal acts and a more serious form of negligence is known as gross negligence. This type of negligence happens when a person does something with reckless disregard for the safety or property of another. In these cases, there may not be any criminal charges, but the injured party could seek financial compensation through a civil lawsuit if they are owed a duty of care.
In order to determine if an educator or administrator was negligent, four key questions must be asked. Firstly, did the person have a legal obligation to the injured person? Secondly, did they fail to follow through with this duty? Thirdly, was there an injury caused to the person in question? Finally, could it be said that the educator's failure to fulfill their duty was directly or indirectly responsible for this injury? Answering these questions can help determine if an individual is liable for negligence.
In order to successfully make a legal case of negligence, it must be established that all four questions posed above have been answered in the affirmative. As such, most lawsuits regarding the issues of harassment, discrimination, and bullying which have been dealt with in court have involved physical evidence being presented as proof, which is typically easier to validate. However, more and more courts are now recognizing that verbal harassment of a sexual nature can be classified as a Title IX violation for sexual harassment, even if it does not involve physical harm. An example of this would be if a person was subjected to slurs like "fag" by fellow classmates over a long period of time without any action taken to stop it.
Civil Lawsuits and Criminal Prosecution
In the case of a sexual harassment, discrimination, or bullying incident/complaint, it's important to be aware of three distinct legal frameworks - school policy, civil lawsuits, and criminal prosecution. All have their own guidelines and regulations that may need to be considered when making decisions about how to handle concerns and complaints. If there are any suspicions that minors were abused in these incidents, then it is a requirement to report to the police or child protective services. It's also important for schools to conduct internal investigations into any behavior that could be in violation of district policies - such as sexual harassment, abuse by educators, discrimination, and bullying.
Any suspicion of adult-to-student sexual misconduct, such as inappropriate grooming behaviors or boundary crossing, should be reported to the police as well. Law enforcement is better equipped to investigate and collect evidence than school administrators. To ensure that the victim is not re-interviewed by multiple parties and to prevent evidence from being tainted, all investigations must be coordinated and school districts may consider having a memorandum of understanding in place with law enforcement. If law enforcement does not find evidence that a crime has occurred, the school district still needs to investigate to determine if a policy has been violated and determine an appropriate response such as dismissal or filing a report with the State Teacher Credentialing Commission.
Investigation Procedures and Training
It is essential for schools to have a Title IX Coordinator and designate a complaint/case manager at each school site. Everyone involved should receive proper training, and the person responsible for receiving concerns and complaints must be thoroughly trained in intake inquiry and investigation procedures. Title IX Regulations require eight hours of training as well as additional follow-up sessions every year. An issue can arise when the principal advertises themselves as a complaint manager but hands off the task to somebody else. This person often doesn't have enough training to properly handle an incident of harassment or bullying, usually receiving only one hour of training a year. They may use regular student or staff discipline methods instead, like saying "If I catch you doing anything like this again, you're going to regret it." Additionally, many schools have the practice of destroying discipline records at the end of each school year. Therefore, it is important for schools to ensure that those responsible for receiving complaints have the appropriate training and resources necessary to do their job effectively. To minimize the risks of harm and liability, consider these steps:
Create and enforce policies that explicitly prohibit sexual harassment, discrimination,, and bullying in the workplace or school.
Follow these established rules and regulations consistently.
Provide employees and students with regular instruction related to this policy.
Investigate any reported concerns and complaints thoroughly and quickly.
Take immediate action when necessary to correct an undesirable situation.
Provide appropriate consequences if allegations are found to be true.
Immediately report cases of child abuse, adult-to-student misconduct, sexual assault, or any other type of criminal activity to law enforcement.
Make it clear that inappropriate behavior such as harassment, discrimination, and bullying is not tolerated and explain the penalties for such actions.
Encourage victims to report their experiences.
Shield witnesses and victims from retaliatory acts.
Schools must adhere to the legal requirements for sexual harassment, discrimination, and bullying prevention. It is their responsibility to ensure that any reported complaints are investigated and appropriate action is taken. Additionally, the US Department of Education Office for Civil Rights and Equal Opportunity Employment Commission have provided detailed guidance on how to address such issues with students and employees. Administrators must comply with these regulations in order to protect the rights of everyone involved. The educational institution you are part of has a responsibility to guarantee a safe and secure atmosphere in which learning and working can take place. To fulfill this duty, there are four main elements that must be taken into consideration:
Provide Education: Ensure staff and students have the necessary knowledge and understanding of sexual harassment, discrimination, and bullying to prevent related issues from occurring.
Prompt, thorough Investigations: Make sure appropriate complaint procedures are in place for employees and students, as well as prompt responses to all potential issues.
Take Action: Implement a range of measures to stop harassment, discrimination, and bullying, as well as protect those involved in a complaint and prevent further incidents.
Monitor Progress: Establish a culture of respect through regular monitoring and correction of any inappropriate behavior.
At the end of the day, there's no guarantee that you or your school district won't face a lawsuit. Administrators should seek to clarify areas of liability and work diligently to reduce potential harm or responsibility. At Mcgrath Training Solutions, we provide the tools you need to keep your school districts in compliance and students safe. Take our self-assessment, which helps navigate K-12 sexual misconduct laws, policies, and best practices to help you determine if your school district is in compliance.