In Loco Parentis Litigation: The Hot Stock du Jour

TASA ID: 1646

It is school year 2020. If there is any school superintendent in the nation who currently operates without formalized school safety plans in place (quite apart from the noticeable but ignored "thou-shalt-nots" festooned on campus walls, doors and fences), s/he needs to regard—as a wake-up scream—the thunderous allegations of negligence, child endangerment, foreseen traumatic consequences, breach of duty of care, sexual molestation, dereliction of duty, and reckless disregard hurled by a passing parade of aggrieved and angry parents.

They are continually setting the pace, nationwide, in the filing of lawsuits over the on-campus dangers and subsequent injuries of various kinds and degrees, including mental trauma, to their children. These are the parents whose litigated judgment awards and out-of-court settlements can turn the school-as-temporary-guardian/caretaker concept of in loco parentis into hot stocks du jour. In their minds, no damage awards could ever compensate for the deaths of their children. Amid and after news footage showing children carrying lunch bags to school and the same day themselves being carried away in body bags, it is the very rare lawsuit alleging "negligent in loco parentis" that has been held by courts as being without merit.

The Parent Invasion

The business of American school governance has changed. School administrators must recognize that, in our post-Columbine High School, post-Parkland High School, and post-Sandy Hook Elementary School climates, parents are holding school administrators and the school boards who hire them utterly responsible for ensuring the perpetual safe-keeping and welfare of their children. School officials and their general counsels must also understand that the wrath of grieving, surviving parents is being visited upon not only schools and school districts but also upon others whom parents deem responsible for their victim-children’s injuries or deaths—whether such occurred from homicidal acts or not.
Newspaper headlines trumpet the plaintiff-parent lawsuits now that reached the $500-million dollar mark in the aftermath of Littleton, Colorado’s Columbine High School tragedy. In Norwalk, California, an $80-million settlement was reached with the family of a boy left paralyzed when he was struck in a crosswalk by a car driven by a rushing school district employee. Parents of a seven-year old boy killed by a janitor’s utility cart at his Los Angeles school sued the school district for $84 million. Parents of a Westchester County (NY) football player who died after being punched at an after school drinking party sued 14 teenagers, saying they caused their son’s death through misconduct and negligence. It is important to note that in this case, the school was not targeted in the suit, since the party event was after school hours and off-campus.

Now Is Not the Time to Wait

Rather than wait for the next violent school tragedy to occur, or for some legislative mandate, educators ought to begin analyzing and revising comprehensive school safety! Violent thoughts, plans, and acts often coincide with the oncoming of Spring. All high school districts in the country have clear and complete standards for the instruction and evaluation of their driver education and training courses. Likewise, school administrators ought to exercise the same diligence and develop comprehensive school safety standards complete with student and staff accountability measures. Further, revising standards that are out of date and suspiciously irrelevant is a priority that must be executed.

It Takes Only One Child to Raze a Village

Following my 48-month in-person/in-prison interviews of girls and boys incarcerated for "juvenile life," in state youth prisons for committing homicide and murder, a former host of CNN TalkBack Live, invited me onto her show where she publicly took me to task for stating that, today, children are going to school and getting executed, not educated. She said, "Every child who gets bullied does not become a murderer." My response was that "Historically, school violence has never been about ‘every child,’ most children, or the majority. School violence has always been brought to us by the few children in the minority we overlook or disregard, whose needs are greater and graver than we could ever imagine. The students in the minority whose names were Dylan Klebold and Eric Harris made Columbine High School the Pearl Harbor of school violence."

And I told one of my interviewers on The NBC Today Show, "the weak—in a reversal of Darwin’s survival of the fittest—are now going after and taking out the strong." School boards and their superintendents can no longer afford to think their schools are idyllic paradises, immune to the sins and sizzles of the "greater out there." Short-sighted indeed is the school official who wraps herself in the cozy and complacent delusion that every child is simply not suddenly going to throw a gun into his backpack, along with his peanut butter and jelly sandwich, and summarily "announce" his arrival at school with a burst of gunfire. Any school official who fails to see that the majority no longer reflects or represents what the FBI now calls the "student threatener," could be playing a deadly numbers game: one student can be more dangerous than 100!

Discipline: Your Best Investment

What should school administrators immediately begin to do to protect their school districts’ treasuries from being drained dry by negligence lawsuits? Let’s take a page out of New York Mayor Michael R. Bloomberg’s "book." Mayor Bloomberg has put the New York City schools on notice by announcing his objective to ferret out and punish disruptive students in the public schools, particularly those in schools with high rates of criminal violence (in previous years thought of as normal), and hold the principals more accountable for reducing disciplinary problems within their schools. My advice is that school administrators should structure their discipline policies along Mayor Bloomberg’s "safety first" principles. Then, if these school officials are ever summoned to the witness stand in court, they will be able to more clearly and convincingly show evidence of a pattern and practice of sound school safety plans and procedures at work.

Keeping Up With Technology

Front office staff, from secretaries to student workers to counselors to vice principals to principals have, in several of the nation's tragic school shootings, failed to recognize the former student of their school who swaggered confidently past the Main Office with his gun hidden in his backpack. That he dared walk past the Main Office with a loaded firearm is made worse by the fact that, a few years ago, he was a student at that very school. Because of his difference in height, weight, hairstyle and facial features, school staffers failed to recognize him. That failure, in itself, is shocking. Taller and heavier than many of the students and perhaps fuller in the face than the rest, the shooter simply did not disguise himself: Being “natural” was its own disguise.  

This is why the technology of FACIAL RECOGNITION SOFTWARE is in daily, full and complete use by police departments, airports, Interpol, Homeland Security, the CIA, and the U.S. Justice Department, as well as by many security firms. The nation’s school boards are simply going to have to authorize funding for various technologies that have heretofore been avoided as being "too expensive." What is more expensive than a teen-age student’s entire life, suddenly snatched from them by an angry and crazed former student insanely determined to kill as many other human beings as he can?

School principals, from elementary to middle school to high school, must persuade their superintendents of the dire and ultimate need to capitalize on various technologies--Facial Recognition Software, being one--as an additional means for securing school safety. School Superintendents must then persuade and convince their school boards to make the necessary and rational financial investment. A life taken can not be brought back, re-filled, or replaced. Facial Recognition Software, by alerting campus School Resource Officers (law enforcement), can go a long way toward stopping shooting massacres before they start.  

Zero Tolerance

Likewise, School Superintendents should establish zero-tolerance policies against bullying, and against racist, anti-Semitic or homophobic taunts by students. Students engaging in such threatening and harmful behavior should be suspended or expelled. The middle school student whose beating and hospitalization was widely reported in the national press, should have had the satisfaction of knowing that his principal, teachers and counselors who all failed in their job to supervise and protect him, were fired or would be. Personnel policies governing the professional responsibilities of school administrators need to be re-written to include such provisions for dismissal. The collective dereliction of duty almost resulted in the death of this particular student. That is one of the reasons why in loco parentis litigation is now a growing battle cry of hurt, angry, and litigious parents.

To Sue Or Not to Sue...Parents

Certainly, with an eye toward protecting their purses and public relations, school districts might consider suing the parents of student-terrorists: These bullies, assailants and other anti-social and hostile beings cause constant pain and suffering and place in jeopardy the lives of other children. In the past few years, grief-stricken parents have brought hundreds of lawsuits against other parents where reports by law enforcement officers and school officials identified the gun-wielding adolescents who fatally shot or injured other students.

A school safety committee should be formed and composed of the principal or designee; teacher representative of the recognized teacher union; parent of an attending student; classified employee of the recognized employee union; and other members, if desired. A comprehensive school safety plan should be jointly written with a representative from a law enforcement agency. Each school should have a specific date on which its comprehensive school safety plan is to be adopted and made effective. And each plan should be reviewed every year on that date. Before final adoption of the plan, a public meeting should be held by the school safety planning committee at the school site, to allow for input.

Failure of any school to develop a comprehensive school safety plan should be cited by the school superintendent and sanctions imposed. Whether the state legislature has enacted a school safety law or not, every school should forward its completed, comprehensive school safety plan to its respective school district office or county office of education for approval. At the end of each school year, every school should report on the status of its school safety plan in the annual school accountability report card and to the news media. However, well before the school year ends, schools need to install official and regularly-scheduled training calendars, to ensure that training and re-training are continuous, ongoing. Regularly-convened school student assemblies can also be used for School Safety Training, again, launched by an official School Safety Training Calendar.

Strength in Numbers

When engaging in the development of a comprehensive school safety plan, school superintendents should feel free to consult with their counterparts and colleagues in other cities, townships, boroughs, commonwealths, and states. Again, when disclosed on the witness stand in court, such effort will be seen as equivalent to "due diligence" in the gathering and sifting and sorting of facts, information, and violence prevention strategies and programs, and may favor the superintendent and the school district with the court’s or jurors’ perception of them as concerned and responsive, not careless and negligent.

In addition to the perennial question of accountability, "What did you know and when did you know it?," school officials must today prepare to confront safety negligence lawsuits by coming to terms with the query, "Do you now and did you then have a school safety plan in place?" This will be the presiding question whose answer predicates whether the school district’s treasury will be plundered by grieving and furious plaintiff-parents seeking revenge and relief, or preserved by the court as untouchable domain, protected by a comprehensive school safety plan in no less the same way than the school district’s driver education curriculum protects the district from lawsuits in the aftermath of errant or reckless student drivers who commit vehicular manslaughter.

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA and the author (TASA Id#: 1646). Contact for any questions.

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