Suing a Public School for Money Damages

The following article covers personal injury and negligence claims against a school, intentional torts such as assault and battery, sexual abuse, Claims Against a School for Thoughtless and Indifferent Actions, Discrimination in Use of Facilities, 1983 Claims, ADA and Section 504.

Personal Injury and Negligence Claims Against a School

To prove a case for negligence, a parent must show (1) the school had a legal duty to the child (2) the school breached the duty by failing to exercise a reasonable standard of care (3) and the breach was the proximate cause of (4) an injury or other damages.

Accidents involving automobiles or buses where students are injured are common negligence cases. However, injuries to students can also occur due to the negligence of the school due to dangerous physical conditions at the school or the failure of the school to provide a safe environment. A school can sometimes also be held negligent when a child is injured by another student or a school employee if the school had prior notice of the propensity of the person to be violent or towards sexual abuse.

1. Legal Duty
   Clearly, a school district and its employees have a duty to protect a child, anticipate foreseeable danger and take steps to ensure that the child is protected. This applies to dangerous conditions in the school. In special education situations, the school should write safety concerns into the IEP with instructions as to how to address those safety issues. All of the teacher's aides and other personnel who deal with the child should be educated as to the safety concerns and how to address them. If the activity is one that is dangerous, the school can be liable if school personnel did not take precautions and possibly if the personnel did not receive preventative training.
2. Breach of Duty to Exercise a Reasonable Standard of Care
   The standard of care that is applicable is dependent on a number of factors. The extent of the student's disability is one factor. For instance, a low functioning autistic student would likely need closer supervision around moving vehicles than a high functioning student. In these types of cases, in order to determine liability, the functioning level of the student in the environment in which the injury occurred is considered.

Another factor is the level of experience and training of the school personnel is in charge. A teacher is expected to have a higher duty of care than an aide, for instance. On the other hand, the school has a duty to provide personnel that is qualified to supervise the child's activity.

In general, schools must provide a reasonable standard of care to all students. School districts should ensure that special education teachers, aides, administrators, and other school personnel are aware of their duties to students under the law and have sufficient knowledge to care for the children in their charge.

3. The Injury Must Have Been Proximately Caused by the Negligence of the School
   For instance, if the child was negligently supervised, but the injury did not occur because of that negligence, there is no liability.
4. Damages
   Even if a parent can prove that the school had a legal duty that was breached, there must be an injury that is substantial enough to warrant a lawsuit. Normally, a personal-injury plaintiff is entitled to compensation for out-of-pocket expenses such as medical bills and is entitled to damages for pain and suffering. As stated above, however, many states have limits on damages.

Intentional Torts (Assault & Battery, Sexual Abuse)

If a teacher hits a student, the teacher could be held liable for battery. However, school personnel are often given the benefit of the doubt when it comes to disciplining students. When a teacher's actions are truly excessive, or outrageous, damages will often be awarded. Sexual assault or abuse is an intentional tort since a minor child does not have the ability to consent. The violator, such as a teacher or aide, can be held liable for damages to compensate the child (compensatory damages) and also for punitive damages.

Recovering damages against the school district, however, is more complicated. Take for instance, a sexual assault case. Since the school district did not sexually assault the child, it can only be held liable under a doctrine called respondent superior. When an employee acts for purely personal reasons, the doctrine of respondent superior does not apply and a court will not automatically find the school liable.

Nevertheless, parents of children who are sexually abused can sometimes recover damages from the school district by showing the school district should have known of the teacher's prior sexual misconduct and there was a foreseeable risk imposed by continuing to employ the individual. In that case, a parent can sue the school for negligence.

A school can also be held liable for sexual abuse or assault and battery on a student by other students. For instance, in one case, a school district paid a settlement when two special education students were sexually abused by other students in the bathroom at school. The settlement was obtained by showing that the school district had previous knowledge of the behavior of the student perpetrators.

A school district has a duty to take reasonable steps to supervise student behavior on school grounds during hours that school is open to students, including prior to beginning of classes, and has a particular duty to protect special education students during that time.

In M.W. v. Panama Buena Vista Union School District, 39 IDELR 127 (Cal. Ct. App. 2003) a 15 year old was sexually assaulted by another student while at school. The victim, who was mentally retarded, had previously been beaten and tricked by the child, who later sexually assaulted him. The school nevertheless had not monitored the situation at all times, and the student was attacked when he arrived at the school early one day.

The school district argued that it was not foreseeable that the student would be sexually attacked by another student. The court held that it was foreseeable that a student with a propensity for violence could seriously injure another student and that the school district had a duty to provide a safe environment. Further, it was the indifference to the foreseeable danger and inadequate supervision that exposed the special education student to the assault. The court affirmed a jury award of $2.5 million dollars.

In another case, a school official allegedly taped an eight-year-old student's head to a tree for five minutes as punishment for horsing around and not standing still during "timeout." He was liable for damages since the action constituted excessive use of force.

In yet another case, a 10-year-old student was injured when he and other students were throwing dirt clumps at each other during recess. Although the school district argued that the student "assumed the risk" (a legal defense) and that the school was therefore not liable, the court held that the school had a duty to supervise and protect the students on school grounds during recess.

Schools also have a duty to warn of dangerous conditions on the school property. In a well-known case, on "senior pranks day," a student climbed on the roof of a school, fell, and sustained serious injuries. The student was able to show that the school had known for some time that students were climbing on the roof and that the school failed to stop the activity or to fix the dangerous condition. The school was held liable for compensation for the student's injuries, which were substantial.

A final example. A special education student was placed in a room that smelled like urine and dirt, over 75 times during a 6 month period. The student had been physically restrained, face on the floor, and his hands were red and blistered from trying to get out of the restraints. In an action for false imprisonment, negligent infliction of emotional distress and other causes of action, the jury awarded the student $75,000.

Claims Against a School for Thoughtless and Indifferent Actions

Gebseret al. v. Lago Vista Independent School District, No. 96-1896 (1998)
In the Gebseret case, the Supreme Court found that a school district could be held liable if the school official had actual knowledge of the wrong of a teacher's misconduct and had thoughtless indifference.

1983 Claims, ADA and Section 504

Section 1983 is a law regarding civil rights. Under this law, a civil action can be brought personally against any person who deprives a person of their civil rights. Section 1983 and Section 504 can be applied to school staff and/or administrators.

Section 1983, 42 U.S.C. Civil Action for Deprivation of Rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Examples of 1983 claims and 504 claims:

In one case, a severely disabled student was put in seatbelt backwards and there was no aide to assist her on the school bus. The student strangled on the way to school. The court allowed 1983 claims as well as claims under the IDEA and Section 504. Susavage v. Bucks County Schools Intermediate Unit No.22, 36 IDELR 32 (2002)

Smith v. Half Hollow Hills Central School District, No. 01-7891 (2nd Cir., 7-31-2002). A student who was slapped by his teacher in class brought a civil rights action under §1983 alleging violations of both procedural and substantive due process. The court held that student did not allege facts demonstrating that the teacher's behavior rose to the level of "conscience-shocking" behavior and found that he did not have a Section 1983 claim.

In a case brought in Hawaii under the Rehabilitation Act of 1973, a nineteen-year-old sued the school for deliberate indifference on the grounds that there had been a shortage of personnel that had denied him a FAPE. The judge found that the school had repeatedly failed to fund special education and that the children were not receiving necessary services. The judge allowed the family to recover damages.

In Doe v. Withers, 20 IDELR 422 (W. Va. 1993), a jury found a teacher liable under Section 1983 for refusing to provide the accommodations set forth in the IEP and the jury award $15,000 in damages to the parents. (The Office of Special Education Programs (OSEP) affirmed the principle in this case in Letter to Williams, 21 IDELR 73 (OSEP 1994).

In a section 504 claim, for years, parents of a Down Syndrome student had been trying to obtain only one hour per week of individual speech and language. The school district refused to provide the services. The case went to the jury, which ordered the school to pay $300,000 to each parent.

In Andrew Ordway v. Goleta Union Elementary School District et al. 31 IDELR 231, 31 LRP 5983 (1999) the school violated the IDEA by failing to conduct an assessment before changing a placement and failing to develop a behavior plan. The hearing officer found that the student probably would not have been placed in a long-term juvenile detention if the behavior plan would have been implemented. The parents then sued the Director of Special Education for monetary damages under section 1983.

Some recent cases have allowed recovery when the school district's employee's actions are "thoughtless and indifferent," the school district was aware of what was going on and, as a result, the child suffered damages. Many parents feel that their school district has been "thoughtless and indifferent." However, the standard is very high only a few cases merit litigation.

Americans with Disabilities Act (ADA)

The ADA prohibits discrimination based on the disability. If the discrimination was a motivating cause, the student can sue for damages.

ADA Section 302 Prohibition of Discrimination by Public Accommodations states in pertinent part.

1. General Rule.--No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
2. Construction.--
   1. General prohibition.--
      1. Activities.--
         1. Denial of participation.--It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.
         2. Participation in unequal benefit.--It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.
         3. Separate benefit.--It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.
         4. Individual or class of individuals.--For purposes of clauses (i) through (iii) of this subparagraph, the term "individual or class of individuals" refers to the clients or customers of the covered public accommodation that enters into the contractual, licensing or other arrangement.
      2. Integrated settings.--Goods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual.
      3. Opportunity to participate.--Notwithstanding the existence of separate or different programs or activities provided in accordance with this section, an individual with a disability shall not be denied the opportunity to participate in such programs or activities that are not separate or different.
      4. Administrative methods.--An individual or entity shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration--
         1. that have the effect of discriminating on the basis of disability; or (ii) that perpetuate the discrimination of others who are subject to common administrative control. (E) Association.--It shall be discriminatory to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.
   2. Specific prohibitions.--
      1. Discrimination.--For purposes of subsection (a), discrimination includes--
         1. the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered;
         2. a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations;
         3. a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden;
         4. a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable; and
         5. where an entity can demonstrate that the removal of a barrier under clause (iv) is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable.
      2. Fixed route system.--
         1. Accessibility.--It shall be considered discrimination for a private entity which operates a fixed route system and which is not subject to section 304 to purchase or lease a vehicle with a seating capacity in excess of 16 passengers (including the driver) for use on such system, for which a solicitation is made after the 30th day following the effective date of this subparagraph, that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.
         2. Equivalent service.--If a private entity which operates a fixed route system and which is not subject to section 304 purchases or leases a vehicle with a seating capacity of 16 passengers or less (including the driver) for use on such system after the effective date of this subparagraph that is not readily accessible to or usable by individuals with disabilities, it shall be considered discrimination for such entity to fail to operate such system so that, when viewed in its entirety, such system ensures a level of service to individuals with disabilities, including individuals who use wheelchairs, equivalent to the level of service provided to individuals without disabilities.
      3. Demand responsive system.--For purposes of subsection (a),discrimination includes--
         1. a failure of a private entity which operates a demand responsive system and which is not subject to section 304 to operate such system so that, when viewed in its entirety, such system ensures a level of service to individuals with disabilities, including individuals who use wheelchairs, equivalent to the level of service provided to individuals without disabilities; and
         2. the purchase or lease by such entity for use on such system of a vehicle with a seating capacity in excess of 16 passengers (including the driver), for which solicitations are made after the 30th day following the effective date of this subparagraph, that is not readily accessible to and usable by individuals with disabilities (including individuals who use wheelchairs) unless such entity can demonstrate that such system, when viewed in its entirety, provides a level of service to individuals with disabilities equivalent to that provided to individuals without disabilities.
      4. Over-the-road buses.--
         1. Limitation on applicability.--Subparagraphs (B) and (C) do not apply to over-the-road buses.
         2. Accessibility requirements.--For purposes of subsection
            1. discrimination includes (I) the purchase or lease of an over-the-road bus which does not comply with the regulations issued under section 306(a)(2) by a private entity which provides transportation of individuals and which is not primarily engaged in the business of transporting people, and (II) any other failure of such entity to comply with such regulations.
   3. Specific Construction.--Nothing in this title shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others. The term "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.

SEC. 303. NEW CONSTRUCTION AND ALTERATIONS IN PUBLIC ACCOMMODATIONS AND COMMERCIAL FACILITIES.

1. Application of Term.--Except as provided in subsection (b), as applied to public accommodations and commercial facilities, discrimination for purposes of section 302(a) includes--
   1. a failure to design and construct facilities for first occupancy later than 30 months after the date of enactment of this Act that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this title; and
   2. with respect to a facility or part thereof that is altered by, on behalf of, or for the use of an establishment in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Where the entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities where such alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General). (b) Elevator.--Subsection (a) shall not be construed to require the installation of an elevator for facilities that are less than three stories or have less than 3,000 square feet per story unless the building is a shopping center, a shopping mall, or the professional office of a health care provider or unless the Attorney General determines that a particular category of such facilities requires the installation of elevators based on the usage of such facilities.