Although teachers and other school personnel are not expected to be legal experts, it is very important that they understand their basic rights and responsibilities under the law. Americans are a litigious people and today's schools function in a complex legal environment. There are a wide range of legal issues that influence the lives of teachers, students, parents and administrators (Fischer, 1999). Any professional development devoted to the law and teachers must be developed in collaboration with the legal department(s) of local and centralized school districts.

Eight key topics that might be addressed are:

1. Certification, Employment, Contracts, Collective Bargaining
2. Due Process, Insubordination
3. Student Records, Family Educational Rights and Privacy Act
4. Standard of Care and Duty, Liability
5. Copyrights and Fair Use
6. Academic Freedom
7. Freedom of Expression, Disruptive Speech, Slander and Libel
8. Child Abuse and Neglect

The process of teaching and learning takes place in an environment in which the rights of teachers and students are constantly being balanced against the rights and responsibilities of school officials to maintain a safe, caring and orderly environment (Webb, 2000). Many local school boards and districts, as well as professional teacher unions, provide their teaching staff with trainings, seminars, and workshops which provide detailed information about the first three topics mentioned above. This column will provide a focus on liability and standard of care and duty. Next month we will examine copyright and fair use. Future columns will examine other areas. A word of caution --- the law is constantly changing and the information presented here is to stimulate professional development, which should be specifically designed for you, your locality and school district. This column may not be substituted for formal legal advice from a knowledgeable lawyer and/or your professional association.

Standard of Care and Duty

It is generally agreed that teachers have two basic duties, the delivery of instruction and supervision. The courts have held that teachers have a mandatory duty to supervise students under their control during the school day as well as at school-sponsored activities. In determining whether a teacher failed to provide the appropriate standard of care, the courts compare the actions of the teacher with those of a hypothetical "reasonable and prudent" teacher. Teachers of younger children are held to a higher standard of care than teachers of more mature students. A higher standard of care also is demanded of teachers of the physically or mentally challenged and vocational, industrial arts and physical education teachers.

If teachers must take reasonable care to ensure that students do not meet with foreseeable injury, they have a duty to protect them against foreseeable risks of personal injury or harm. This duty of care applies while students are on the school grounds or premises during school operating hours (see Strope, 1984).

When teachers have not fulfilled their obligations properly, and when that action has resulted specifically in injury to a student, the question of liability is always a concern. However, liability will not be assessed unless it can be shown that the teacher's action was the proximate cause of the injury. There are no absolute criteria for determining what constitutes negligent action, since each case is factually unique and must be examined on the basis of its own individual merits.

A tort can be defined as a civil wrong done by one person to another and for which a court will provide a remedy in the form of an action for damages (see www.atra.org). The law regulates the relations between two parties when one party claims to have been injured as a result of the intentional or accidental action of the other party. Criminal wrongs are not torts.

Negligence is the most common category of torts in education. Negligence may be defined as the omission to do something that a reasonable person, guided by those ordinary considerations that ordinarily regulate human affairs, would do. There are four ingredients to be proved before an educator can be found guilty of negligence:

• A legal duty to provide appropriate standard care
• A failure in that duty to provide the reasonable standard of care (a breach of duty)
• A causal relationship between the negligent action and the resultant injury
• A physical or mental injury resulting in actual loss

It must be noted that legislation has recently been introduced in the House (H.R.1103) and Senate (S.316) that drastically limits liability for teachers, instructors, principals, administrators and other educational professionals. This type of legislation attempts to define liability as harm caused by "willful misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights of safety" of plaintiffs. This is a much higher burden than is usually found in tort cases. However, charges of negligence, even if unsubstantiated, may be damaging to the reputations of teachers and administrators and may cost them their jobs (Sewall, 1995).

Courts have also held school officials personally liable for damages if they violate the clearly established constitutional rights of students or teachers. Professional development should attempt to address the following questions:

• Are teachers required to supervise their students at all times?
• Can teachers be held liable if a student injures another student or teacher?
• Are there special legal definitions that impact upon teachers who supervise the cafeteria or playground?
• If teachers are careless, are they automatically liable for damages?
• Are there special liability standards for substitute teachers and student teachers?
• What is the "assumption of risk"? What is "contributory negligence"?
• Can teachers use governmental immunity as a defense against negligence?
• Can schools be held liable for failure to maintain a safe environment?
• What kinds of damages do the courts award?

In Ontario, Canada the law requires teachers to perform various duties from a parental perspective. For example, teachers must be positive role models for their students and must act as kind, firm, and judicious parents when disciplining students (see www.oct.on.ca/english/ps/december_1998/duty.htm) Operating under the doctrine of in loco parentis (in place of a parent) school authorities exercised almost unlimited and usually unchallenged discretion in restricting the rights of students and in disciplining students. Although this doctrine has been weakened in recent years, it does generate discussions about student rights and responsibilities (Hogan, 1985).

Professional development that generates these types of discussions helps teachers become legally literate. It's a good first step to help clear up misunderstandings and misinformation.

REFERENCES

Fischer, L., Schimmel, D., & Kelly, C. (1999). Teachers and the Law (5th ed.). New York: Longman.

Hogan, J. C. (1985). The Schools the Courts, and the Public Interest. New York: Lexington Books.

Sewall, A. M. (1995). Teacher Liability: What We Don't Know Might Hurt Us.

Strope, J. L. (1984). School Activities and the Law. Reston: Virginia: NASSP.

Webb, L., Metha, A., & Forbis Jordan, K. (2000). Foundations of American Education (3rd ed.). New Jersey: Merrill.