Michael: Educational liability and the epidemic of school shootings

June 27, 2018
michael-catherine-m-mug Michael

By Catherine M. Michael

School shootings in the United States have averaged one per week since the beginning of 2018. This is indeed an alarming statistic, and Indiana has not been untouched by these tragedies. As of yet, however, the question of how to prevent them from happening again has gone unanswered. In the aftermath of these calamitous events, the strikingly few and minor changes to the safety and security measures at many schools find parents and attorneys expressing their growing dissatisfaction with ineffective school administrations. Since the Parkland shooting in Florida, for example, much of the discussion and media commentary has focused on the gun laws rather than on the necessity of increasing security measures in and around schools. Clearly, though, schools cannot unilaterally change the gun laws, nor can they change the number of guns on the street or the number of individuals who have access to them. School officials can, however, take steps to update security protocols and procedures commensurate with this increasing threat, and their lack of action in this regard has only exacerbated the frustration of many parents, as well as the fears of many students.

The first legal question for education and personal injury attorneys who practice in these areas is, what is the school’s liability in the event of a school shooting? It used to be that the answer to this question focused on foreseeability; that is, whether, in the case of a student perpetrator, the school had knowledge of the student’s propensity for violence, was aware of any mental illness of the student or had any reason to believe that the student may bring a gun to school with the intent of shooting one or more persons. While foreseeability remains the standard, such arguments have become rare, and inquiries now focus on the school’s duties, what is required to make a school safe and how a school may breach those duties.

School districts are unequivocally responsible for the safety and welfare of students. They are legally responsible for ensuring the safety of all students, and they have a duty to exercise care in ensuring the safety of each student. Indeed, they have a duty to protect the students while at school from the foreseeable acts of third parties, which clearly includes protecting students from violence perpetrated by fellow students, as in a school shooting. A breach in this duty thus renders schools legally responsible for failure to protect students against such violence. This is not to suggest that most families and attorneys involved in these cases do not deeply feel for the schools and teachers who must endure what has become a sad and horrible epidemic of violence. Of course they do. However, this doesn’t absolve a school or its staff of the legal duty to protect the students against foreseeable harm.

The question of why we have not seen more changes in school security measures over the last decade, given this duty and its obligations, produces mixed feelings among education attorneys in various states, particularly in light of the continuing and devastating nature of these violent acts. In many states, education attorneys have limited ability to guide much-needed changes in school security policies because schools enjoy substantial tort reform and other qualified immunity protections that sharply limit their financial liability. In Indiana, for example, tort damages are capped at $700,000, no matter how devastating the injuries, no matter how substantial the medical bills of the student and no matter how blatant the negligence on the part of the school. In other states like Texas, the situation is worse, as it is extremely difficult to recover any monetary damages from a school district even in cases of substantial negligence and death of a student.

This will all need to change in order for state legislatures and the federal government to begin to make available the necessary funds for schools to put in place a variety of safety measures and security protocols that could sharply decrease or mitigate the damages resulting from these violent acts. Legislatures should consider changes in the tort laws and/or whether other statutory requirements with respect to schools are necessary. With many schools in our country financially struggling, this seems on its face a bit unpalatable. But at the same time, litigation has shown us that steep damages awards can result in massive changes quickly. The bottom line is that if drastic changes are not made in school security measures, more families may leave the public system for private schools, which will then remove even more of the government funding schools so desperately need. This snowball effect will ultimately leave schools with scant resources to devote to education, let alone security measures.

Rather than focusing on gun laws, school districts should consider implementing security measures that will have immediate mitigating effects on student-perpetrated violence. For example, electronic systems may be implemented to lock down hallways, classrooms and other areas of the school in order to isolate students from violent offenders. Such systems are currently in use in museums and other facilities and are operable to quickly and effectively isolate a thief or intruder. Other options may include outfitting doors with automatic locks activated by a central emergency button or automatically upon detection of gunfire, bulletproof glass in student-populated areas, security and/or metal detectors at school entrance points, and delays on fire alarms. It is not a question of whether these measures should be implemented, but rather how quickly, given the increasing occurrences of these violent acts and the young lives at stake if they are not.

What few attorneys also realize is that under the Individuals with Disabilities Education Act and Indiana law, schools have an affirmative federal and state duty to identify all students who may have a disability, including a mental health condition or an emotional disability. If a parent refuses to consent to services or to allow the school to evaluate the student, the school has the ability to file an action against the parent to ensure that the school can provide necessary services to the student, including counseling, social work services and, in some cases, even psychiatric services. If the student is potentially violent or disruptive, the school can seek to place the student in a therapeutic day placement or even a residential placement. In fact, schools receive federal and state funding specifically to do this, but unfortunately students in many school districts still go without the necessary identification and services. There are currently no monetary damages available for the school’s failure to make these identifications or provide these services.

While many schools contend that the changes proposed herein are cost-prohibitive, we should be mindful that the law generally does not allow a defendant who owes another a duty to argue that they do not have the time or money to fulfill their duty and are, therefore, forced to breach it. In the U.S., we have far more security in leisure centers, such as museums, galleries and sports venues, than in most schools. This needs to change. We need to protect those we have promised to protect: our children.•

Catherine M. Michael is a partner who heads the Education Law Division at Hollingsworth & Zivitz in Carmel. Opinions expressed are those of the author.