A School’s Responsibility When One Child Injures Another

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A School’s Responsibility When One Child Injures Another

What You Need to Know About a School’s Responsibility When One Child Injures Another


If your child has been injured, intentionally or accidentally, by other students in school, you need to know what your options are – and in the public schools, they are not very good. Private schools do not enjoy governmental immunity. Generally speaking, private schools are subject to the same rules as other private persons and entities; they are responsible for their own negligence. When one child injures another in a private school, the school is by no means automatically liable, but they are responsible if they were negligent in failing to take reasonable steps to prevent the injury from occurring.  This is not true for the public schools.

Public Schools and their employees are generally immune from suit

Because public schools enjoy governmental immunity, most state laws insulate them from liability for anything but gross negligence. Moreover, gross negligence doesn’t just mean simply a whole lot of ordinary negligence. Although it may be defined differently from state to state, in Michigan, for example, gross negligence requires that there be an actual awareness of a specific danger to the child followed by a conscious decision to ignore that risk. Using Michigan once again for example, not only must there be gross negligence, you can generally only sue the specific governmental employees involved. Typically, the very person whom you would most want to hold accountable – the superintendent of schools who is in charge of everything – is absolutely immune for anything short of his or her own direct intentional injury to the child.  In other words, he or she is absolutely immune from any responsibility for failure to supervise, establish safety guidelines, act on reports of ongoing dangers, etc. Similarly, the school board is immune unless it can be shown that they enacted a formal or informal policy that was the active ingredient in creating danger to the child. Thus, at least under state law (and as we shall see, under federal law to a certain extent as well) you are limited to suing individuals such as teachers, paraprofessionals, or other staff members, who caused the injury through their gross negligence – but even then, they may get a pass, at least under some state laws.

Michigan law, in a particularly harsh application of governmental immunity, says that the negligence of the governmental employee must be not just one of the significant reasons why the injury occurred but essentially the only reason. If there is any other coincident cause of the injury to your child – such as the negligence of another student involved in dangerous activity – the public employee may be totally off the hook, even if, absent their negligence, the injury never would’ve happened.

State law does typically provide for some exceptions to these harsh rules. For example, just as federal law has anti-discrimination provisions, most states do as well and it may be that if you child is been injured through, for example, race or gender discrimination, or failure to accommodate a disability, you will have some avenues of recovery under state law.

Federal law provides a limited, but important, way around governmental immunity

Because of the severe limitations of proceeding under state law, federal law is often invoked to create a remedy. However, federal laws do not fill in all of the gaps either, not by a long shot. Two of the most common ways that federal law is used to sue persons whose behavior has caused injury to a school child are the federal civil rights statutes and anti-discrimination provisions of Title IX of the Education Amendments of 1972.

A specific provision of the civil rights statutes, specifically 42 USC § 1983, prohibits intentional denial of civil rights by states, their departments and agencies, and public employees deriving their authority through states rather than the federal government. (Counties, cities and townships derive their power through the state and therefore are subject to claims under section 1983.) However, § 1983 does not permit you to sue public employees every time they are negligent, or even when they act intentionally, but in ways that do not rise to the level of what the courts define as a “constitutional tort”. Recognizing that §1983 was initially enacted to prevent African-Americans from being grossly abused after the Civil War, courts have been relatively careful not to allow it to become a general claim statute against state officials for things that do not amount to at least a reckless, if not intentional, violation of important civil rights.

In order to keep this filter in place, several rules have emerged in 1983 cases. First, the right that is being violated must be considered a fundamental one; or if not quite fundamental, at least a right of significance the violation of which is so extreme that it would literally quote shocked the conscience” of the court. Second, the violation must result as a consequence of either intentional misconduct (e.g. a sexual assault) or conduct that amounts to a deliberate indifference to a known violation of the victim’s rights. Courts deciding actions under section 1983 recognize that, if they find the statute to apply, they are going to be abrogating governmental immunity: something not to be done lightly. Consequently, the bar is set high on what constitutes deliberate indifference to ongoing violations of clearly established constitutional rights.

Student-on-student injury is even harder to redress

As protective as courts are of governmental entities and employees where injury to students come from the employees themselves, the bar is set even higher were school officials are being sued for failing to protect students from the acts of their classmates, or even outside third parties. For example, in a recent case decided in a Michigan federal court and upheld on appeal, a school student with a miserable behavior record had overtly threatened to rape another child in the same school. He had physically assaulted her (short of rape) once already. The school put the perpetrator under supervision for about a month and then, when nothing happened, essentially discontinued the monitoring. Not long after, the male student sexually assaulted the very girl that he had threatened only weeks before. The court dismissed the section 1983 claims against the school officials, finding that, although the plan to protect the victim may have been inadequate, the school officials involved could not be said to be deliberately indifferent to the risk because they did something in at least the hope that it would be adequate.

Another problem, which also cropped up in the same case involving rape of the female student, is that in order to invoke a companion statute, Title IX of the Education Amendments of 1972, it must be shown that the denial of the victim’s rights was substantial enough to deny them an educational opportunity. Under this standard, a one-time physical injury, even if potentially serious, but which does not materially interfere with the child’s overall education, will not give rise to a claim under the statute.

The bottom line from all of this is that, while lawsuits can be brought to redress injuries to schoolchildren brought about by public employees and even other students, the injuries must be significant, the civil rights involved very important, and the behavior of the school officials far worse than simple negligence.

Our law firm has been dealing with these challenging but important cases for over a decade. We understand the importance of knowing the law backward and forwards, investigating the facts meticulously, and understanding the human dimension of cases involving injury to children. If you have a potential claim you would like to discuss, don’t hesitate to contact us.

If your child has been the victim of physical or sexual abuse at school, we can help, and we hope that you will contact us. Please contact our well-practiced Michigan student protection attorneys at Seikaly, Stewart & Bennett  for a no-obligation phone call or office appointment.  Call 866-671-8115 or fill out our contact form to arrange your consultation.

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