Three Things You Won’t Believe About Your Child’s Safety in School
1. Public Schools and their employees are usually immune from liability when your child is injured.
Child safety in school is one of the most misunderstood issues that a parent can face. We all know that you don’t have a choice about sending your child to school. In Michigan, the law says that you must send your child to school, at least until he or she is 16, unless the child is home-schooled. Moreover, we all know that the public schools are required to accept every child living within its district boundary and to provide them with what the law calls a free, appropriate, public education.
If you were to ask 100 people in a row the question “does my child’s school have a special duty to protect him/her from harm while on school grounds, probably over 90 of them would say “Of course!” They would be wrong. Private schools don’t have any special protection, but public schools, where the overwhelming majority of our students go, are protected in every state by governmental immunity. The extent of immunity varies but in Michigan, where immunity is very strong, it means at the very least that when your child is injured in school – even by a school employee – the school district itself is entirely immune as is the superintendent and under all but the narrowest of circumstances the entire school board. In fact, if a teacher or staff member causes injury to your child even intentionally, the teacher might be liable (for what little that’s worth) but everyone else in the school system is likely to walk away unless a very high standard for liability can be met. Under state law, it is probably going to require a showing of gross negligence, and even where federal law can be invoked it will require a still higher standard “deliberate indifference” to a known risk of harm.
So, there is the first thing you didn’t know about the safety of your child in school: most of the people responsible for keeping your child safe almost entirely immune from liability when they fail in their responsibility. Now for the second surprise.
2. Prisoners are better protected by the law than school children.
Prisoners have better rights against their jailers when they are injured through negligence than do you or your schoolchild when an injury occurs in school. You probably just read that sentence again to make sure you got it right. You did. How can this be? Because whether a person can recover for his/her injuries due to the negligence of a public employee depends upon whether there is a “special relationship” between the public entity and the victim. Because prisoners (and patients in state mental hospitals who have been committed by court order) have no choice about being in captivity, the law says that there is a special relationship; and that immunity will not protect negligent public employees in the same way it would without that special relationship. Now for the third thing you didn’t know about your child in school: there is no special relationship between your child and the school, even though truancy laws essentially require that the child be there.
3. Just because you have to put your child in school, that does not mean the school has a special responsibility for your child
Every court that has decided the issue has determined that you have to put your child in a school but not necessarily the school where an injury occurs. It doesn’t matter whether you have reason to know that there are safety issues in your child’s school. It would be one thing if you had a reason to know about child safety issues. If schools were required to publish incident reports or even statistics on how often children were injured in school and why, you could at least make your own decision, but there is no such law. Thus, while you have to put your child in school and have no way of knowing other than by happenstance or when something so egregious occurs that it makes the newspapers, you have no “special relationship” with the school because you can always put your child elsewhere.
So it comes down to this: even though you are required to send your child to school and, as a practical matter, may have very limited options about which school to use, the school still has no special duty to protect your child from the misdeeds of others. Individual school employees who intentionally assault or otherwise injure your child will be liable, but no matter how negligent others in the school system may have been you will have no recourse unless the injuries are serious and the conduct of the supervisors of the school district generally amounts – at least – to deliberate indifference as to whether a known risk of harm results in injury to your child.