School Law for School Psychologists

1. School Law for School Psychologists

2. Presented by Shirley Woika Mini-skills workshop presented at the annual conference of the National Association of School Psychologists Philadelphia, PA February 21, 2012

3. Purpose • The purpose of this workshop is to provide information specific to legal issues in schools to school psychologists. • Rather than the typical focus on special education law, this workshop will focus on the legal rights of all students.

4. School Law Topics • Criminal Law, Juvenile Law, and Civil Law • Educator Liability • Tort Action • Freedom of Expression • Search of Students • Educational Malpractice

5. Outcomes for the Workshop • Gain information about the current knowledge level of educators regarding school law. • Gain knowledge specific to several discrete areas of school law. • Apply knowledge of school law to a variety of case studies. • Identify ways school psychologists can serve as a resource for other educators with respect to school law.

6. Legal Literacy of Teachers • Schimmel & Militello (2007) surveyed 1,300 teachers in grades K-12 in 17 states • Findings show that the majority of teachers: • Are uninformed or misinformed about student and teacher rights, • Have not taken a course in school law, • Get their information from other teachers, and • Would change their behavior if they knew more about school law.

7. Specific Findings • Teachers were given 12 true/false/unsure questions concerning student rights that have been clearly resolved by the courts for more than a decade. • Average mean score was 41%.

8. Sample Items • Students who refuse to salute the flag may be required to stand in respectful silence. • School officials must permit students to distribute controversial religious materials on campus if it does not cause a disruption. • Invocations and benedictions at graduation ceremonies are permitted.

9. More Findings • Teachers were given 17 true/false/unsure items concerning teachers’ rights/ responsibilites. • Average mean score was 39%.

10. Sample Items • Teachers cannot be held liable for student injuries that occur in breaking up a fight. • Schools can be held liable for failing to prevent student sexual harassment. • Teachers can be held liable for any injury that occurs if they leave their classroom unattended.

11. NCATE Requirement • “Candidates shall complete a well-planned sequence of courses and/or experiences in professional studies in which they acquire and learn to apply knowledge about … school law and educational policy.”

12. Why are teachers law illiterate? • Only two states (NE, WA) require a school law course as part of teacher preparation. • Only half of the states require a discussion of legal issues (abuse and neglect). • Only 8% of teacher preparation programs even offer a course in educational law at the undergraduate level.

13. Consequences of Legal Illiteracy • Teachers violate student’s constitutional rights. • Teachers are often unnecessarily concerned about being held liable for a student’s injury. • Teachers view the law as a source of fear and anxiety.

14. Question Is there too much law in education or not enough education in school law?

15. Principals and the Law • Twenty-three states require a course in school law for principals. • 493 secondary school principals completed a school law survey. • 87% had completed a law course as part of their principal preparation. • 58% participated in a school law inservice training within 10 years.

16. Comparison of Results Student Rights Survey Percent Correct Item Teachers Principals Flag Salute 40% 62% Religious Materials 19% 40% Graduate Prayer 21% 74%

17. Comparison of Results Teacher Rights Survey Percent Correct Item Teachers Principals Stop fight – injury 26% 41% Sexual harassment 5% 7% Liable for any injury 3% 6%

18. What we know… • Highest scores on school law survey were earned by teachers who took a law course while they were teachers. • Next highest scores were earned by teachers who took a law course during certification. • Knowledge of the law is positively correlated with law training.

19. Legal Basics/ Background

20. Three Areas of Law • Criminal Law • Juvenile Law • Civil Law

21. Criminal Law • Tried by a prosecutor who represents “the people”. • Prosecutor has the burden of proving “beyond a reasonable doubt” that the defendant committed the crime for which he is accused. • Accused is defended by an attorney (privately retained or public defender).

22. Criminal Law (continued) • Each side presents its case to a “trier of fact” (jury or judge) who decides innocence or guilt. • In reality, this is NOT how the courts work. • Instead, the defendant usually accepts a “plea” after the lawyer and prosecutor “plea bargain”. • Usually, there is no trial and a “change of plea” hearing is held.

23. Criminal Law (continued) • School psychologists are not usually concerned with criminal law because they don’t encounter criminal liability in their work (with the exception of child abuse) • It is, however, illegal to contribute to the delinquency of a minor. • A well-meaning school psychologist could inadvertently contribute to a minor’s delinquency

24. Juvenile Law • Juvenile system is similar to criminal justice system. • Key difference: Juveniles who commit criminal acts are not guilty of a crime; they commit an “act of juvenile delinquency”. • In juvenile court, a juvenile accused of an act of juvenile delinquency is charged with an “information” instead of the complaints or indictments used to charge adults with a crime.

25. Juvenile Law (continued) • If a judge finds that the juvenile committed the criminal act and that the child is a juvenile delinquent, it is not a crime but rather a determination of the child’s status. It is neither a felony nor a misdemeanor. • Juveniles have no right to a jury; rather, a judge will hear the case and decide. • Juveniles do not receive a sentence; a judge enters a disposition that focuses on “the needs of the child”.

26. Juvenile Law (continued) • Generally, incarceration can be imposed only until the juvenile is 18 years old. • A “transfer” occurs when a juvenile case, despite his/her age, is sent to adult court • 2 types of transfers • Mandatory • Discretionary

27. Civil Law • More likely to impact school psychologists as civil law includes the duty to warn and confidentiality. • Nobody goes to jail (with the exception of immigration issues). • Person who believes he/she has been wronged (plaintiff) sues another (defendant).

28. Civil Law (continued) • Plaintiff has the burden of proving the case • Standard of proof is lower: “preponderance of evidence” rather than “proof beyond a reasonable doubt” • Being sued is not the same as being liable

29. Educator liability

30. Educator Liability • Law requires educators to provide adequate supervision of students and vests much of that responsibility in teachers and principals. • Educators must exercise reasonable care to protect students from hazards, in particular when students are on school property but, in many cases, also as students travel to and from school and when involved in school-related activities outside the regular instructional day.

31. Supervision • Schools and individuals can be held liable if harm occurs when supervision is absent or negligently performed. • Example: • Extended-day program in FL allowed a 4th grader not enrolled in the program to join the group for viewing a solar eclipse. • Student looked directly at sun and had permanent eye damage. • Did the teacher have a duty of care for the guest student?

32. Supervision • Example case (continued) • A lower court ruled in favor of the teacher. • Appeals court ruled the matter involved the issue of reasonable supervision. • Because the teacher permitted the student guest to join the group, she accepted the duty of care to provide supervision that would keep the student from harm. • Appeals court reversed the decision.

33. Supervision • Many cases have been brought before the courts over the injury of a student while the teacher was absent from the room. • Central question: Did the teacher’s absence contribute directly to the injury? • Courts also consider reason for absence, length of absence, age and maturity of students, mental capacity, and nature of classroom activity at time of absence.

34. Supervision • Test: What would a reasonable and prudent person do under the circumstances? • In an emergency, reasonable supervision standards require the teacher who must leave the classroom to notify the office or a colleague so that supervision can be provided in some alternative manner.

35. School-Related Activity Cases • Field trips present supervision challenges. • Teachers can get caught up in the excitement and neglect their duty of care. • Example: Teacher and 6 adults took 35 preschool/elementary students to beach • 4 children posed on log for a photo • Wave lifted the log and a child was crushed • Did the teacher breach her duty to supervise?

36. Case (continued) • Court’s conclusions: Probability of a wave coming ashore was common knowledge in the ocean area and the teacher had breached her duty to supervise.

37. School-Related Activity Cases • 13-year old boy was hit by a car while crossing a street during a field trip. • No vision or hearing problems. • Boy understood the safety precautions needed to safely cross a street. • Teacher had given student permission to cross the street, but it was the student’s responsibility to do so safely. • Court found teacher was not negligent.

38. School-Related Activity Cases • A 9-year-old boy was killed during a lunch recess when he was accidentally struck by a bat swung by another student. • At time of accident, supervising teacher was 45 feet away helping a kindergartener. • Court found the teacher was exercising reasonable supervision; the accident was not foreseeable.

39. In Search of “Reasonableness” • Right and obligation to control behavior of students in school has been established under the common law doctrine in loco parentis meaning “in place of the parent”. • Nebraska court defined the doctrine. • In loco parentis is bound by two standards: - Reasonableness - Good faith without malice

40. TORT Action

41. Tort Action • Tort – derived from the Latin word tortum, or “twisted”. • The idea of “twisted” is applied to activity that deviates from accepted behavior. • A tort in legal parlance is an injury or wrongful action for which the legal system may provide a remedy.

42. Living in a Litigious Society • Persons who have been wronged, or believe that they have been wronged, have the right to sue those who have wronged them and to recover damages in the form of monetary awards by the courts. • Because a tort is a civil wrong committed by a person against another person or property with a resulting injury, monetary compensation may be provided if the injury resulted from unreasonable conduct.

43. Tort Law • State policies vary according to special immunities, liabilities, and related standards. • General principles apply regardless of the jurisdiction. • Tort law developed as common law with judicial precedent having more predominance than statute.

44. Tort Law and Educators • Educators, like others who hold a public trust, may be sued for willful or negligent actions. • Legal suits against educators have increased since 1986. • 1986 – attorneys were deregulated and were permitted to advertise (“No fees unless we get money for you.”)

45. Legal Test for Torts • Existence of a legal duty. Did the defendant owe the plaintiff a duty? • A breach of that duty. Did the defendant do/not do something regarding the duty? • A causal nexus, or connection, between the breach and the injury. Did the negligence cause the injury? The term proximate cause describes this relationship.

46. Classes of Torts • Issues affecting education can be classified mainly as: • Strict liability • Intentional interference • Negligence • Negligence tends to be the area that most affects educators.

47. Strict Liability • Involves intentional behavior by someone, such as a teacher, that causes harm. • Example: A chemistry teacher stores two incompatible chemicals on the same shelf, and a student is injured when the two chemicals ignite. The teacher is liable because it was the teacher’s responsibility to store the chemicals in a safe manner.

48. Strict Liability (continued) • Courts can award damages based on the “strict liability” standard as applied to the defendant. • Rule was adopted to place damages on the person best able to bear the burden • In these cases, the defendant’s acts are not as important as the suffering of the injured person.

49. 6 Factors Determine whether an Activity is Abnormally Dangerous • A high degree of risk of some harm to the person or property of others. • Likelihood that the harm that results will be great. • Inability to eliminate the risk by taking reasonable care. • Extent to which the activity is not a matter of common usage.

50. 6 Factors (continued) • Inappropriateness of the activity for the place it is conducted. • Extent to which its value to the community is outweighed by the dangerous attributes