SCHOOL BOARD NEWSBULLETIN - May/June 2010

Mary Ann Manos is assistant superintendent of schools at Eureka CUSD 140, in Eureka, Illinois. Sandra Holman is a former associate general counsel of the Illinois Education Association, IEA-NEA.

Warning: What you’re about to read could result in arguments during administrative council or board of education meetings. But the discussions themselves are well advised if a school district expects to be prepared for possible legal problems.

Schools exist in a highly litigious environment in which district leadership must be able to assess the district’s vulnerability to lawsuits. Understanding liability issues requires a savvy ability to think on your feet and anticipate possible risks.

In theory, a risk management process helps organizations see into the future. In reality, school law books are filled with the names of school districts and individuals who simply could not foresee the damaging potential of events to their well-being.

By talking about “what ifs,” problem-solving discussions can refine thinking and help avoid increased risks.

Consider the following six scenarios based on actual events that occurred at schools. If you think these couldn’t happen, check the websites for the news accounts.

After each scenario is a list of the areas of discussion for liability risks. Would your district be ready to handle any or all of these events?

Boy or girl?

A second-grade boy returns to school dressed as a girl, supported by reams of transgender literature and highly visible support groups. He is also a special education student and receives intense bullying at the hands of his schoolmates during the school day. (http://www.9news.com/news/article.aspx?storyid=85989)

Parents expect schools to offer a safe environment for their students, especially when it comes to situations involving special education students and harassment. Teachers may need specialized professional development to be able to handle difficult situations, and the district certainly needs policies that cover harassment.

• Can your school security systems provide a “safe” environment for this student? Are security cameras able to record any problem event? Is staff trained in passive restraint or violence intervention techniques?
• How quickly can you change a student’s class placement if there is an IEP for “emotional disability” or “other health impairment” in place?
• Have teachers, counselors and other school personnel been professionally trained to work with students from diverse backgrounds or children who are differently-abled? How current is the training?
• Does the school district policy dealing with anti-bullying strategies include an effective process to encourage kids to tell and parents to report without reprisal or increased danger to the child? Does the district have a clear policy outlining the official district response to school-yard bullying, cyber-bullying, text messaging, and other forms of intimidation?
• Are your administrators and counselors trained in how to interview students and faculty and how to record the interviews without bias? Are faculty trained to serve as neutral parties/witnesses to the interview process?
• Are teachers and administrators prepared to offer counsel to the other students who may not understand why their classmate now dresses “differently” than before?

Graduation uproar!

Seven seniors are arrested at graduation after they yell students’ names during the ceremony, in violation of the school policy for disruptive audience behavior. (http://www.msnbc.msn.com/id/25083792/?GT1=43001)

Graduation is meant to be a ceremony conducted with dignity. School administrators like it that way — sedate and solemn. Unfortunately, few dearly held graduation rituals remain the same from a generation ago. Many legal issues are involved, perhaps even a property right to the ceremony itself. When students and parents display a defiant “what can you do to me now?” attitude, sparks are bound to fly.

• Is the school board prepared for administrators to summon the police in response to students who are simply yelling and not involved in fighting or encouraging others damaging school property? (The media images of students being handcuffed for yelling will haunt the next school board election.)
• Are the students simply exercising their constitutionally protected rights to self-expression?
• If the offenders are not bound under district disciplinary code, what action can the district take?
• If the district attempts to withhold a student’s diploma or eliminate the student from the ceremony, as a disciplinary response, what student “property right” will be considered in court?
• Are students’ cultural norms and diversity in participation styles considered in the disciplinary code for graduation behavior?

Mediation or mess?

A K-12 district hires two school ombudsmen to handle disputes between parents and teachers, as well as between employees and supervisors. The positions are an attempt to provide effective, formal mediation steps before taking issues to grievance procedure or court action. (http://www.dallasnews.com/sharedcontent/dws/dn/education/stories/DN-publicheard)

In an overly litigious society, mediation is the “new frontier” in legal and employment concerns. Although the practice of sitting down in a non-courtroom environment with neutral mediators and discussing problems has great potential, it also has drawbacks, especially when the mediators are local employees.

• Is it possible that school district employees can serve as neutrals in school-based concerns? Who might serve as a supervisor for the ombudsman, without being seen as an enforcer?
• Can the ombudsman follow a negotiated grievance process between school district and teachers? Why negotiate a grievance process if the use of the ombudsman can circumvent the process?
• Information given to the ombudsman has the potential to be highly confidential. What safety-checks are in place to keep sensitive information secure?
• Federal and state law affords due process timelines, how would the presence of the ombudsman duplicate or encumber the constitutionally protected right to appropriate due process? If the ombudsmen can convene a review team, how will review team member selection impact due process?
• Special education law requires very specific levels of mediation. How will the ombudsman impact that time process?
• The right to select an organization as professional representation is the result of a vote by the membership. How would mediation circumvent that mandate?
• What concerns would be appropriate for resolution using an in-house mediation?

Accident oversight

Students and teachers are involved in a traffic accident on a school-sponsored field trip while riding in a teacher-driven school bus. Teachers on the scene do not record where each student is taken for hospital treatment. Parents panic after hearing media reports of the students’ involvement in the crash with no communication from their children or school district. (http://www.pjstar.com/homepage/x1049841854/Dunlap-students-involved-in-bus-semi-accident)

Thankfully, nightmare situations like this may come only once in a career. How do we prepare for such traumatic events? When crisis events come at lighting speed, all personnel must be aware of the important general guidelines of who assumes leadership and who speaks for the district.

• Did teachers display the level of care and foresight required of a professional certified by the state? Did they reach the “en loco parentis” level of caring for the children? Was the bus within state standards for equipment and size?
• Did the district provide adequate, current, required training to district personnel for such an event? Did the staff participate in that training? Was a teacher driving the bus certified to do so?
• Are students being adequately supervised by adult personnel in a reasonable student-to-teacher ratio? Are parent emergency permission forms completed, with updated information and present in the bus?
• Are administrative procedures in place to identify who would serve as a media spokesperson in such an event? Did that person contact the district administration before issuing a media statement? Did the activities comply with school district policies governing school-sponsored events off school property?

Testing security

Student athletes are required to pass a drug test. One student reports a rumor alleging an athlete has offered another person’s urine for the testing, brought into the testing room via baggie and taped on the leg. (http://www.msnbc.msn.com/id/28327882)

All educational leadership agrees a drug-free environment is the first element of positive school culture, but how do we ensure a school is drug-free without violation of individual rights? In truth, many parents are fickle in their willingness to allow drug testing for their student athlete, especially when it’s their child who could be forced to sit out the championship game for testing positive for a banned substance.

• Has the policy been implemented in all aspects across all populations being tested?Are students being selected at random or targeted for testing by school personnel?
• What oversight of the testing company is provided by the school district to be sure no testing violations are the result of poor testing or process?
• Has clear written notification been given to students, parents and the community outlining test procedures and due process?
• What process has been provided for parents and students to appeal the school decision?

Over-mentoring

A university student teacher has sent an eighth-grade student in her classroom more than 3,000 text messages in a single six-week period. The teacher describes herself as a “mentor” to the troubled student. The school requests cell phone records from the teacher. (http://www.popcrunch.com/student-teacher-scandals-of-2009/)

When teachers step over the line between leadership and friendship with their students, a dangerous gap exists in the moral, ethical and professional culture of the classroom. Parents will (and should) hold the school district responsible for teacher ethical violations. One act of teacher sexual misconduct can start a downward spiral of liability. Although one incident of misconduct may end a teacher’s career, it also has the potential to draw the entire leadership of a school district into the courtroom.

• Does the school district have a clear policy disallowing social interaction between students and teachers that includes Internet social networking sites?
• What contractual language has been agreed to with the university regarding student teacher behavior and disciplinary action by the district?
• Are your administrators and counselors trained in how to interview students and faculty in a misconduct case and how to record the interviews without bias? Are faculty trained to serve as neutral parties/witnesses to the interview process?
• Are student teachers given sexual harassment avoidance training before they start the classroom placement?
• If the student teacher refuses to provide hard copies of social networking site entries and/or cell phone records, what legal options are available to school district leadership?

A school district is wise to discuss scenarios like the ones above before the unthinkable happens. By examining the “what ifs” and analyzing district policies and administrative procedures that are already in place, as well as bolstering or adding policies that are weak or missing, both school board members and administrators can have a clearer idea of whether the district would be able to minimize its liability.

Logic and sound policy are the best tools to have when the district is facing a crisis. While a district may not be able to prepare for every situation, the idea is to prevent small battles from escalating into a wholesale war.

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