Is a school or its district liable if:
-A bus driver known to have a record for driving under the influence of alcohol causes an accident involving children?-A student is ejected from a school activity for drunkenness and is hurt or causes a further problem outside the school?
-A student arriving at school well before school time is raped?
-A student involved in an altercation with another student is injured while a teacher is on the scene but otherwise occupied?
In each instance, the answer is "yes," a Salt Lake attorney told school board members and other education leaders during a group session of the State School Boards Association annual convention.
Brinton R. Burbidge told the school leaders their right to governmental immunity is weakening while the number of precedent-setting cases involving school liability is increasing. Schools must be increasingly vigilant against leaving themselves vulnerable to suits, he said.
"You're in the pot with everyone else," he warned.
Burbidge advised school board members to avoid demanding drug tests of employees or students until cases now before the U.S. Supreme Court are decided. School officials are better off making judgments based on objective observation if they suspect a school employee is impaired, particularly if the safety and welfare of children are directly involved.
A bus driver, for instance, who appears inebriated should be observed, preferably by more than one person, and then challenged to defend his condition before a supervisor takes steps to keep him from getting behind the wheel. Careful documentation signed by one or more people is important, he said. Allowing employees - or students - full due process is a good defense against suits.
A driving record clear of drug- or alcohol-related offenses should be a condition of employment at the outset so school officials cannot be accused of knowing or being responsible to have known of a drinking or drug problem ahead of time.
The school has a duty to detain a student known to be under the influence of drugs. Parents or law enforcement should be called. If the student is belligerent and refuses to be detained, documentation again is the best way to help school officials avoid negligence claims, he said.
The lawyer also strongly advised school leaders to avoid having either implied or explicit involvement in out-of-state student travel that is not directly school-related. Trips such as those offered by travel agents can turn into legal nightmares for schools, he said.
He advised that such trips be planned off school premises, that use of the school name not be allowed in connection with the trip and that parents be specifically notified that the school is not a sponsor.
"Put it in your policy," he said. "Distance yourselves from such trips."
Burbidge also warned the school leaders to be wary of sexual harassment and encourage employees to follow prescribed avenues if they believe they have been subjected to such harassment.
The concept of "safe schools" has increased the potential for liability suits, Burbidge said. Schools can be held liable for injury to a child even outside school hours if parents have not been specifically notified of times when no supervision would be available. In the case of the raped child above, the school was also held liable for not telling parents of an earlier sexual assault against an adult woman on the school grounds.
"It's your duty to maintain safe schools. You must take reasonable steps to avoid danger," he said.