Schools have a duty to protect students from harm, including the harm inflicted or created by its own staff. While acts by a staff member resulting in injury to a student generally fit into the category of negligence, a teacher or an administrator as a state actor can generate a state-created danger.

The difference with state-created danger, as opposed to negligence, is its application under the 14th Amendment of the Constitution and Section 1983 of Chapter 42 of the United States Code. School officials can be held responsible when they knew of impending danger, were recklessly indifferent to it, and through the authority vested in them by the state (public school board of education), knowingly created a dangerous environment that led to an otherwise preventable injury. Liability under Section 1983 can be imposed on a school district if a student’s deprivation of rights is consistent with a school or district’s custom or policy, or if it results from an act of those who are ultimately responsible for setting policy in that area of school business (see City of St. Louis v. Praprotnik, 485 U.S. 112 [1988]).

Section 1983 has been used to seek monetary damages for violations of what courts refer to as bodily integrity, which is protected by the 14th Amendment. The 14th Amendment’s Due Process Clause prohibits “unjustified intrusions on personal security.” Most cases involving bodily integrity in schools concern sexual molestation, although excessive corporal punishment may also implicate this right. Educators who deliberately cause serious harm to a student, such as in the case of a coach who put a student’s eye out by hitting him with a metal object (Neal ex rel. Neal v. Fulton County Board of Education, 229 F.3d 1069 [11th Cir. 2000]), may be sued under Section 1983 for due process violations if one or more of the conditions below are met.

Section 1983 is used to bring suit only against individuals whose actions are attributable to the state, and cannot be employed against a private wrongdoer (DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 [1989]). Minor injuries that result from a teacher deliberately hitting a student — or even serious injuries that result from a teacher’s own negligence or deliberate indifference — do not violate the Due Process Clause. In one case, for instance, a court ruled that a teacher’s repeated humiliation of a student was not a due process violation (Costello v. Mitchell Public School District 79, 266 F.3d 916 [8th Cir. 2001]). Another court, however, has said that there may be a due process violation when an educator’s deliberate action “shocks the conscience” and increases the danger to a student. In that case, which involved a violent, 16-year-old special education student who had threatened to kill himself, school officials sent the boy home without notifying his parents (Armijo Chavez v. Wagon Mound Public Schools, 159 F.3d 1253 [10th Cir. 1998]).

Conditions for liability under Section 1983

A school district and/or its officials or employees may be held liable under Section 1983 if any of the following conditions are met:

• The wrongdoing was undertaken pursuant to a custom or a formal policy of the district, the individual who committed the wrongful act was an official with final policymaking authority, or an official with final authority ratified a subordinate’s wrongful act (Gillette v. Delmore, 979 F.2d 1342 [9th Cir. 1992]). As an example, failure to have a formal policy for dealing with sexual harassment might expose a district to Section 1983 liability because the lack of a policy indicates a custom of tolerating sexual harassment (Doe v. Estes, 926 F. Supp. 979 [D. Nev. 1996]).

• A school official with the authority to take corrective action had actual notice of wrongdoing under Section 1983 and was deliberately indifferent (Gebser v. Lago Vista Independent School District, 524 U.S. 274 [1998]). This Title IX standard can be applied in Section 1983 cases as well. Inadequate hiring policies (Doe v. Hillsboro Independent School District, 81 F.3d 1395 [5th Cir. 1996]) or training of employees (City of Canton v. Harris, 489 U.S. 378 [1989]; Doe v. Estes, 926 F. Supp. 979 [D. Nev. 1996]), for instance, may be viewed as forms of indifference.

• A school district’s action either exposed students to dangers that they otherwise would not have faced or it increased the risks associated with existing dangers (Johnson v. Dallas Independent School District, 38 F.3d 198 [5th Cir. 1994]; Leffall v. Dallas Independent School District, 28 F.3d 521 [5th Cir. 1994]). The mere fact that a student’s rights were violated at school, or that a violator was a teacher, does not mean that a state-created danger exists. Rather, it must be shown that the school exposed a student to people with a known propensity for harming the plaintiff, or that it provided such people with an opportunity to injure the student (Plumeau v. Yamhill County School District, 907 F. Supp. 1423 [D. Ore. 1995]). Assigning a student of known violent propensities to the class of an inadequately trained teacher, for instance, is the kind of step that could lead to liability (Compare Cornelius v. Town of Highland Lake, 880 F.2d 348 [11th Cir. 1989]).

Plaintiffs who allege state-created danger must demonstrate four elements in a Section 1983 claim:

1. A relationship existed between the school and the student.
2. The harm to the student was ultimately foreseeable and fairly direct.
3. The school willfully disregarded the student’s safety.
4. The school used its authority to create an opportunity that otherwise would not have existed for injury to occur.

Foreseeability and willful disregard

In school cases, plaintiffs’ claims usually center on the failure of a school district to prevent dangerous situations that adversely affect a student’s right to be protected from harm. Teachers, principals, and other staff, by the nature of their relationship with students, have an affirmative duty to protect students in dangerous situations. As an example, if a principal or other school official charged with the responsibility of teacher supervision receives a complaint from a parent, a student, a teacher, or other staff member that a teacher is yelling at students, hitting them on their knuckles with a ruler, pushing their heads into their desks with force, pinching them, or abusing them in other ways, the school official has an affirmative duty to investigate quickly and thoroughly, and to take steps to end the abuse. Any reasonable school administrator would foresee harm to students if the behavior continued. Not taking complaints seriously or conducting only a minimal investigation may be considered acting with deliberate indifference to the mistreatment of children, thus creating a dangerous environment that can lead to a lawsuit under Section 1983.

Another hypothetical case illustrates another example of a possible Section 1983 claim. An experienced special education teacher was responsible for the education, safety, and welfare of a class of eight children with disabilities. These students had expressive language disorders — rendering it impossible, or at best unlikely, that they would be able to verbalize to anyone that their teacher was abusing them. Two teacher aides, recent college graduates with teaching degrees, assisted the teacher in the classroom. The teacher aides saw the teacher physically abuse the students, but did not report the teacher’s actions to the appropriate law enforcement agency or the state agency responsible for the protection of children. The aides had a legal duty to protect the students from harm, but failed to exercise that duty; as such, the school administration had no notice that it was occurring. When the abuse finally came to light by a parent who asked about bruises on her son, the teacher aides admitted to having witnessed the abuse but said they were afraid to report the teacher to the principal. They also denied knowing that they had a legal responsibility to contact authorities outside of the school.

Though the administration had no notice that students were being mistreated, the situation may be viewed as a failure to provide adequate training. Through its administration, the school acted indifferently to student abuse when it did not ensure that the aides understood their duty to report abuse when they see it. This failure to train allowed a situation that otherwise would not have been present to persist — resulting in continual harm to the students.

Any reasonable school administrator would foresee that if the abuse in these examples went unchecked, the harm to students would be fairly direct. In both cases, it may be determined that the school acted in willful disregard for the safety of the students. In the first case, had no or minimal investigation taken place, the school could be found to have responded unreasonably to the danger students faced. In the second case, no training was provided that could have prevented a dangerous situation.

Student on student abuse under Section 1983

Up to now, we have focused on the actions of school personnel in describing scenarios for Section 1983 liability. In 2009, the Supreme Court held in Fitzgerald v. Barnstable School Committee that a plaintiff can bring a claim for student-to-student sexual harassment under Section 1983 (Fitzgerald v. Barnstable School Committee, 555 U.S. 246 [2009]). The case details a disturbing picture of elementary school-level, student-on-student sexual harassment. A kindergarten girl told her parents that each time she wore a dress on the school bus, a third-grade boy would coerce her into lifting her skirt or pulling down her underpants and spreading her legs. The police, however, were unable to corroborate her story and did not bring criminal charges against the boy. The school’s own investigation ended without disciplinary measures against the boy. Subsequently, the boy continued to bully the girl.

The justices ruled unanimously that Title IX protections did not preclude Section 1983 liability. Thus, the Barnstable case opened the door for students who are bullied and harassed to hold individual school officials liable under Section 1983, for permitting sexual harassment by other students.

Damages under Section 1983

Students suing under Section 1983 are entitled to recover only nominal damages unless they can show actual loss (Carey v. Piphus, 435 U.S. 247 [1978]; Memphis Community School District v. Stachura, 477 U.S. 299 [1986]). The damage award is not based on the value or importance of the violated right, but only on the actual injuries suffered. Students may also be able to obtain punitive damages against individual defendants who act with malice. Punitive damages against a school district itself are not permitted because the Supreme Court has reasoned that punitive damages against a government entity would punish taxpayers, and that only individuals — not government entities — can act with malice (City of Newport v. Fact Concerts Inc., 453 U.S. 247 [1981]).

It must be emphasized, however, that liability can be imposed on a school district if a policy or custom results in deprivation of rights, or if the acts of the highest officials responsible for setting policy in the school deprives a student of his or her due process guarantees (City of St. Louis v. Praprotnik, 485 U.S. 112 [1988]). As such, even with limitations on damages, students who win Section 1983 lawsuits can sometimes recover large awards.

What attorneys should review

For both defendant and plaintiff attorneys, the question to answer in such cases is: Did the school, through its administration and/or other employees, act affirmatively and with deliberate indifference in creating, or enhancing, a foreseeable danger to the student, leading to the deprivation of constitutional rights under the 14th Amendment?

If the school had culpable knowledge, and if its administration and/or other employees, conducted themselves in a way that affirmatively placed the student in a position of danger, a Section 1983 claim may be relevant. For liability to exist, the situation created by the school must be dangerous; the school must know that it is dangerous; and it must have used its authority to create an opportunity that would not otherwise have existed in which the student suffered harm.

As we approach summer, many children look forward to graduation or summer camp, or are excited about building memories and finishing the school year with exciting field trips and proms. Few schools and camps, however, consider the liability that might stem from relaxed rules, “summer fever,” and hastily organized activities. Many children are injured at this time of year when rules are relaxed and appropriate supervision is not always provided.

Graduation activities — all-night lock-in parties, in particular — present several dangers. All-night parties under school supervision are popular because they reduce the risk of alcohol and drug abuse by students who might attend other, nonsupervised events. But they expose students to a new danger: sleep deprivation, graduation’s night silent killer and the second biggest killer on our highways. Typically, event planners keep high school graduates, who have been in school since early morning, entertained from the beginning of the party until the next morning with a variety of activities. In the morning, students leave unsupervised and in a condition that research shows is similar to alcohol or drug intoxication — resulting in car accidents and sadly death. Yet, based on data I gathered through a telephone survey of more than 300 high schools across the United States, those who plan all-night graduation parties generally do not consider fatigue and sleep deprivation as potential risks.

A few easy and effective precautions can protect schools from lawsuits. Transporting students in school buses to the event and back home in the morning can save lives. Even if transportation is provided, adopting clear policies and procedures to protect students from driving while sleep-deprived is equally as important. These policies should specify that under no circumstances will any student, staff member, or parent chaperone be allowed to drive after an all-night graduation party. Other transportation options must be arranged. Schools have a duty to protect students from harm, and no reasonable educator would allow an intoxicated student to get behind the wheel of a car. Why allow a sleep-deprived student to do the same?

Field trips                                                                             

The same logic follows when it comes to end-of-the-school-year field trips and other activities, as well as half days and irregular schedules. Unfortunately, there are numerous cases involving field trips that resulted in drowning deaths, sexual assault, hazing, and bullying — all resulting from the lack of organization, clear rules, too few chaperones, or inadequate supervision of students.  Special attention and planning needs to take place for students that have a demonstrated a need for extra supervision in the past or need one-on-one supervision. Teachers in charge need to maintain high standards of supervision for all students during field trips. Some considerations include:

• The age of the students
• Whether a student has a disability that requires additional supervision
• The number of adults needed to keep an eye on all the students
• The uniqueness of the location that might require additional supervision
• Safety hazards at the site, such as a river, cliff, or highway

All of these issues should be considered and addressed before the administration approves a trip and sends notices home to parents. Planning, clear rules and policies, and appropriate supervision can save a student’s life and prevent a costly legal battle for the school if a child is injured while participating in the activity.

Summer camps

Parents should keep liability issues in mind when researching summer camps. Overall, summer camp can be a valuable and delightful opportunity for any child, as it is a place to reach out and try new things, meet new people, and develop as a person. On the other hand, camps can be full of hidden liability traps; sleep-away nights, horseback riding, archery, rifles, rope swings — all involving children who are supposed to be supervised by trained adults (in some circumstances, college students), Many of these types of activities are accidents waiting to happen. Cases involving campers being injured or sexually abused as a result of poor supervision and staff training are not unusual.

To avoid exposure to a litigation-conscious population, summer camps have instituted the practice of making campers and families sign all-inclusive liability waivers. When well-written waivers have been in place, many verdicts have favored camps and other agencies that supervise children’s programs because parents released them from liability. If a camp or agency institutes clear policies, follows procedures, and does everything right, it is highly unlikely that a parent would win an injury lawsuit.

All-inclusive waivers, however, do not always protect a camp. A waiver is not valid if an injury can be attributed to the camp having breached a standard of care or if it was careless or negligent about supervision. If, for instance, the camp or agency didn’t maintain its playground equipment properly and a child was injured, the camp may be liable, invalidating the all-inclusive waiver. Depending on the specific issue of supervision (or lack of it), an all-inclusive waiver might not protect the camp.

10 considerations

Numerous elements should be reviewed when examining cases that involve injury at a school-sponsored event or summer camp. In no particular order, here are 10 key considerations:

1. What risk-management procedures does the school or camp have in place?
2. How are staff, counselors, and volunteers screened and selected? Are criminal background checks performed prior to supervision — even for summer jobs?
3. How are volunteers trained before they supervise a school- or camp-sponsored trip?
4. What kind of discipline code is followed? Is it enforced? By whom?
5. Are yelling, bullying, harassment, or physical force tolerated? How are incidents of violence and abuse handled?
6. Do students or campers know whom they can talk with and what to do if they feel unsafe or harassed?
7. Are appropriate procedures in place to prevent teachers, counselors, and volunteers from being alone, one-on-one, with children?
8. Are at least two counselors or adults present in each cabin at a sleep-away camp?
9. On class trips, is there adequate supervision for the size of the group? Are there, for example, at least two staff members or volunteers for class trips of eight or ten students?
10. Are age groups reasonably established and kept separate for activities and sleeping?

Meticulous planning will not necessarily prevent lawsuits in case of an injury, but it will keep children safer and could help a school, camp, or agency avoid liability. School and camp administrators should instruct their staff to consider all the possible dangers that might cause injury to a child at an all-night graduation party, a field day activity on school grounds, a day or overnight trip, or other end-of-the-year or summer activity. Make a list of how each of these possible dangers can be avoided. Looking at the possible unfortunate outcomes of injury and planning for the protection of children is the duty of those responsible for children in schools and camps.

Many of the cases for which I provide consultation and expert witness testimony involve the question of whether a school or agency provided appropriate supervision when someone under its care was injured. The question asked by a child safety and supervision expert in such cases is, “Did the school or agency, through its administration and/or other employees, act reasonably and within the standard of care in accordance with the customs and practices of the field?” Lack of or inadequate supervision is the most common allegation of negligence. It is estimated that in cases involving programmatic situations (i.e., where standardized procedures exist), approximately 80 percent of plaintiffs’ allegations involve supervision. My experience in working on such cases reinforces this statistic.

Lack of supervision itself may not necessarily create liability; it must be shown that lack of supervision is the proximate cause of the injury. For the plaintiff to recover, the defendant must also have a duty to supervise the plaintiff. A key element here is the distinction between a duty to render specific supervision and a duty to provide general supervision.

Specific Supervision

Specific supervision is required when a person is involved in activities in settings with obvious hazards, or is incapable of protecting himself from harm in these settings. The type of supervision required depends on the activity and age of the children. A good example would be supervision of children who cross a highway to reach a school or a bus stop. In this case, there would be a duty to supervise, and that duty would be even stronger to supervise 5-year-old children as opposed to high school students.

Another situation in which specific supervision would be required is when participant behaviors indicate a need for it. Such an example would be when the teacher or supervisor has been warned about the “propensity” of a child to behave in a manner that is either self-injurious or dangerous to others. The combination of a child who is known to behave in a dangerous way and environmental hazards that pose a threat of injury mandate specific supervision.

Specific supervision is most often thought of in the instructional mode. From a legal perspective, instruction is given so that the student can gain knowledge of the activity, understand the activity in terms of one’s own capabilities, and appreciate the potential for injury before assuming the inherent risks of the activity. As the participant gains in knowledge, understanding, and appreciation, the degree of specific supervision required is gradually reduced as the participant is provided with transitional supervision and then general supervision.

The individual defines the need for specific supervision. Specific supervision is not a function of the activity, but of the person who participates in it. Some people talk about “high-risk” activities or “hazardous” activities. Courts have not held any activity except boxing inherently dangerous. Rather, the key lies in the person, how she participates in the activity, and how she should be supervised. Think of “people hazards” rather than “activity hazards.” The determinant of likelihood of injury is directly related to the participant’s skill capacity; physical and mental condition to do the activity; and knowledge, understanding, and appreciation of the activity itself. If, for instance, physical disability or lack of mental capacity diminishes a person’s ability to perform an activity, then specific supervision is required.

General Supervision

Children transitioning from one activity to another in school or at a summer camp do not require specific supervision if there are no obvious hazards present. As long as the supervisor-to-child ratio is reasonable and that supervisors in the area are aware, listening and responding when necessary, then the general supervision standard of care is met.

General supervision has two dimensions — individual-oriented supervision in an activity, and group–behavior-oriented supervision in a facility or other location. When engaged in individual-oriented supervision, the supervisor is focused on the child’s manner of engaging in the activity. For example, a teacher in a shop class watches to ensure that students properly use the equipment. In contrast, someone assigned to group-behavior supervision in a facility or an area (e.g., a cafeteria or an outdoor recreation area) watches the behaviors of children and dangerous conditions.

Almost all playground cases allege lack of supervision; in most cases, however, general supervision is all that is required. While a school or agency is not an insurer of safety, there must be supervision when children are on the playground during times when the school or agency is in charge, such as during recess. The fact that each child is not personally supervised every moment of each school day does not constitute fault, nor do spontaneous or planed acts of violence by children on school grounds create liability if the area is well supervised. Constant and undeviating supervision would be prohibitive and, probably, impossible.

Supervisors, however, should be alert for prohibited or dangerous activity that prompts a need to transition from general supervision to specific supervision. A playground monitor, for instance, provides general supervision at recess, watching or listening for anything that might indicate that a child could cause harm to himself or another person. If the monitor witnesses a child jumping from the top of a slide, the monitor must move from general to specific supervision. A reasonable supervisor would know that this is a dangerous situation that could result in injury — necessitating the provision of specific supervision. If supervisor calls out to the child and quickly goes to the area to intervene so that the child discontinues the behavior, the supervisor has acted appropriately under the circumstances to keep the child safe.

Numerous Variables

Recent cases for which we have provided consultation demonstrate that though a school or agency may have appropriate safety procedures in place, a child can, nonetheless, become injured. In such case, a summer camp met all the standards with regard to child supervision; yet when a child threw a stick to the ground, it bounced up and struck another child in the eye.

In this case, camp staff had previously seen children picking up sticks and instructed them not to play with sticks, as part of their safety lessons. The staff-to-camper ratio exceeded the standard and, at the time, the staff was providing appropriate supervision. The children were moving from one location to another, making general supervision the standard. Camp counselors watched the children carefully and were close enough to intervene, if necessary. Suddenly, the child picked up a stick. As soon as he noticed that a counselor was watching him, he threw the stick down. The stick bounced off the ground and struck the other child.

After a review and analysis of the facts and circumstances, my rendered opinion was that the camp met the standard of care in accordance with the customs and practices of the field. The type of supervision and number of counselors present were adequate for the circumstances. The spontaneous behavior of the child who picked up the stick was not foreseeable, and the fact that a staff member watched this action constituted appropriate supervision in the moment. Knowing that he was being watched, the child threw down the stick without warning.

Numerous variables are involved in determining whether a school or agency breached a duty to supervise.  I can help plaintiffs and defendants understand how these variables may influence a determination of liability.