Catherine M. Michael, J.D. Chair of the Education Law Division, Hollingsworth & Zivitz, PC
Mara LaViola Disabilities Rights Advocate, Special Education Advocates 4 Kids
SPRING 2019 ISSUE CIVIL REMEDIES AND TORTS
Schools are supposed to be safe places with appropriate supervision for students. When children get hurt at school, parents may not know what to do. The situation is even more complicated for parents of children with disabilities, because, in many instances, the child’s disabilities interfere with the child being able to explain how the injury occurred. In cases of abuse, neglect, or unsafe conditions, schools may fear legal action and stop providing information, which can result in the breakdown of the partnership that is supposed to exist between public schools and parents. Two professionals collaborated to answer questions about school injuries, with a specific focus on children with special needs. They have helped families across Texas and other states with these issues.¹
How often do you hear from caregivers who are concerned their child may have been hurt at school? Unfortunately, concerns of abuse or injury at school are far more common than most people think. Just like at home, children can be injured by accident, though parents rarely reach out to their attorney or advocate for a child who has tripped or fallen off playground equipment. Often, these situations are far more serious. The calls we receive are mostly about suspected abuse by staff members or accidents at school directly related to the negligence of school staff.
Texas schools serve over five million children and employ half a million teachers, aides, para-professionals, and other service providers.² These employees are not always prepared to face the challenge of addressing the needs of students with disabilities.³ When supervising millions of children, there are going to be accidents, lapses in judgment, and unauthorized individuals coming into contact with the students. Additionally, schools often cut corners in regards to supervision, training, and staffing. These factors lead to the greater likelihood that the most helpless children—who need the highest levels of care—may be injured at school. Statistics vary per state and many minor injuries are not reported, making accurate statistics difficult to calculate.⁴
What type of liability does a school have if a child is injured on campus? Schools in Texas are less liable than schools in most other states. While many states have laws that place limits on the amount of money damages a child may recover, Texas has gone further and granted schools sovereign immunity from most personal injury claims. Sovereign immunity means that the school cannot be sued. However, there are exceptions, like when the injury occurred “out of the operation or use of a motor vehicle.” Additionally, there are a number of federal laws that can get around a school’s immunity.
For example, children with disabilities have rights under several federal laws, and some allow for money damages.⁵ If a staff member purposely hurts the child, the parent could press criminal charges or pursue a civil action, depending on the circumstances. Children subjected to sexual abuse, harassment, or discrimination also have special federal rights.⁶
In general, what are the most common ways children are injured at school? Very rarely do either of us see issues from minor accidents. We see injuries directly related to the negligence or intentional conduct of school staff. A common, but serious, issue occurs when unqualified staff members are left to supervise children. This type of neglect can result in children bullying or injuring each other, the misuse of equipment, assaults by stressed school personnel, sexual misconduct, or even unintentional abuse by untrained staff.
Is there any specific subpopulation of children more likely to be injured at school? Children with the most needs are more likely to be injured at school. The educational needs among children in public schools vary from children who do well to children who struggle with serious physical, emotional, and/or cognitive challenges. School staff is often not prepared to teach and care for children with significant issues which can lead to children not receiving their prescribed medication, improper catheterization, mismanaging feeding issues, and neglecting the care of severe behavioral needs. Additionally, children with special needs are often taught separately from other students. This environment is often poorly supervised with little administrative oversight, so it is ripe for abuse.
What are the first steps a parent or caregiver should take if they believe their child was injured at school? If parents or caregivers believe their child has been injured at school, they should save and document everything. This includes immediately requesting, and writing down, information about the individuals involved. It is important to include the date, time, and place where the injury occurred, as well as the specific injuries. If the child has visible injuries, the injuries should be photographed, and the child should be taken to a pediatrician for official documentation. For more severe injuries, the child should be taken to the emergency room.
Parents or caregivers should also contact their state’s child protective agency. If the injuries appear to have occurred from neglect or abuse by school staff, Texas parents should contact the Department of Family and Protective Services (DFPS).⁷ All health care workers—and many other professionals, such as police officers and teachers—have a professional duty to report any instance where they believe a child has been abused or neglected.⁸ If the injuries appear to be from abuse or neglect, the caregiver should also file a police report as soon as possible. This is also a good time to consider contacting an attorney.
There are also a number of things that caregivers should not do. Although a quick reaction is understandable, it is important to keep calm when interacting with the school. Parents should not post about the situation on social media or call local news stations. The best thing to do is seek representation and let an attorney guide them as to the best course of action.
What should a parent or caregiver do if they suspect their child was sexually abused by a school employee or another child? If parents suspect abuse, they should immediately contact their family physician and the police department and document all changes in behavior. Changes in behavior can be very important and are often the first clue that something terrible happened at school. Parents should save any physical evidence, such as clothes, reports from medical exams, and photographs of bruising or injuries that were not present prior to the child going to school. Also, if a child’s writings or drawings show people engaging in acts which are unexpected at the child’s specific age, they should be saved as well. With children who are non-verbal, it is likely appropriate for the child to see a trained therapist who specializes in play-therapy.
What action is a school legally required to take if there is a claim that a child has been injured at school? Schools have a duty to preserve all evidence of a child’s injury, including video footage, witness statements, and other documentation. If the school has any reason to suspect that the injury is from abuse or neglect, the school is required to report the incident to the state’s child protective service agency.⁹In cases where the injury may be related to criminal activity, the school also must report the alleged action to the police.
If the school decides to investigate a child’s injury, the investigation can take anywhere from 24 hours to two weeks to complete. If two weeks have passed, we generally advise parents to schedule a meeting with a principal or other administrator to find out why the injury has not been reported to a child protection agency or the police. They may also want to seek legal representation.
If a school employee reports a child’s injury to the school administration, is the school required to notify the parents? For anything beyond a minor injury, the school should create an incident report and tell the parents the same day. Minor injuries, such as paper cuts and small bumps and bruising, generally do not need to be reported—although parents of children with immune system issues or certain health care concerns may need this information daily. Additionally, parents with children who are either non-verbal or minimally verbal may also request that all known bruising be reported to them the date it is discovered.¹⁰ The school is required to act with a “reasonable person” standard of care to ensure that things that parents need to know are properly and thoroughly communicated to them.¹¹ However, if parents would like more communication, they can and should ask for it.
If the school administration completes an investigation regarding a child’s injury, does the child’s parent have the right to review the report? It depends. Parents absolutely have the right to review incident reports and other documentation in their child’s file relating to the injury. However, parents may find that school reports contain blacked out, or redacted, personally identifiable information about other students.
The internal investigation report of a school employee is much more difficult for a parent to get. However, parents do have the right to review it if it contains information for legal purposes. Often a parent can get this documentation through a discovery request filed by an attorney.
Does a parent have the right to review school video records? This is a frequent issue that comes up when injuries or allegations involve hallways, cafeterias, or parking lots since security cameras are so common in those school areas. In Texas specifically, video cameras may be installed in certain special education settings where students spend the majority of their day.¹² As a result, parents have the right to view the footage of the “alleged incident.” But this is sometimes complicated because the law is unclear as to what qualifies as an “alleged incident,” nor does it contain any mandatory timelines the schools must follow. Nonetheless, schools often are forced to turn over these videos after a civil or criminal lawsuit is filed.
Schools often argue that the Family Educational Rights and Privacy Act of 1974 (FERPA) prevents parents from viewing video, but this is not accurate.¹³ If that was the case, the law would prevent parents from having lunch with their child and seeing other students.
When is it appropriate to contact an attorney for assistance? What kind of attorney handles these kinds of issues? An attorney who specializes in school injuries should be contacted if the student’s injuries resulted from neglect or abuse, occurred on a school bus, or if the child has substantial medical bills. If the situation involves a child with special needs, parents should contact an attorney who is familiar with disability laws and the various federal statutes that apply to such students. The Council of Parent Attorneys and Advocates (COPAA) is a national, non-profit organization that offers resources for parents dealing with school-related issues and also keeps a directory of professionals who work in this field.¹⁴
Sources ¹ Catherine Michael, J.D., is an attorney who has practiced exclusively in Education Law for nearly two decades and is licensed in Texas, Indiana, and Michigan. She represents parents in educational due process cases, personal injury, and other civil rights matters. Mara LaViola is a lay advocate who assists parents in advocating for their children and understanding the procedures involved with special education eligibility, evaluation, individualized education plans, and other requirements within special education. She also works with parents to prepare their case for an attorney’s review. ² Ross Ramsey, Analysis: Texas Schools, by the Numbers, The Texas Tribune (July 13, 2015, 6:00 AM), https://www.texastribune.org/2015/07/13/analysis-texas-schools-numbers/. ³ Melissa Fletcher Stoeltje, As Texas faces a sharp increase in special education students, the shortage of teachers could get worse, San Antonio Express-News (Updated Oct. 15, 2018, 7:48 AM), https://www.expressnews.com/news/local/article/As-Texas-faces-a-sharp-increase-in-special-13306956.php. ⁴ See generally, School Injuries, Keeping Your Family Safe, Check Your Health, http://www.checkyourhealth.org/articles/Archive/school%20injuries.php (last visited on Jan. 25, 2019). ⁵ Disability Discrimination: Overview of the Laws, U.S. Dep’t of Education (last modified Oct. 15, 2015), https://www2.ed.gov/policy/rights/guid/ocr/disabilityoverview.html; Section 1983 of the Civil Rights Act, My School Psychology, http://www.myschoolpsychology.com/federal-regulations/section-1983-of-the-civil-rights-act/ (last visited on Jan. 24, 2019). ⁶ Overview of Title IX of the Education Amendments Of 1972, 20 U.S.C. A§ 1681 Et. Seq., U.S. Dep’t of Justice (last updated Aug. 7, 2017), https://www.justice.gov/crt/overview-title-ix-education-amendments-1972-20-usc-1681-et-seq. ⁷ Report Abuse, Neglect, or Exploitation, Texas Dep’t of Family and Protective Services, https://www.dfps.state.tx.us/Contact_Us/report_abuse.asp (last visited on Jan. 24, 2019). ⁸ Mandatory Reporters of Child Abuse and Neglect, State Statutes (current through August 2015), https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/ma.... ⁹ Each state has an equivalent state agency. In Texas, the appropriate agency is the Texas Department of Family and Protective Services (DFPS). For more information about DFPS, see Report Abuse, Neglect, or Exploitation, https://www.dfps.state.tx.us/Contact_Us/report_abuse.asp (last visited on Jan. 24, 2019). ¹⁰ An IEP is a document required by law that explains how a public school is going to meet the educational needs of a particular student who has been identified as having a disability. For more information, see The Short-and-Sweet IEP Overview, Center for Parent Information and Resources (current as of Aug. 2017), https://www.parentcenterhub.org/iep-overview/. ¹¹ For more information on the “reasonable person” standard of care, seeReasonable Person, Legal Information Institute, https://www.law.cornell.edu/wex/reasonable_person (last visited on Jan. 24, 2019). ¹² Information Regarding Video Surveillance of Certain Special Education Settings, Texas Education Agency (TEA), https://tea.texas.gov/Academics/Special_Student_Populations/Special_Educ...(last visited on Jan. 24, 2019). ¹³ Family Educational Rights and Privacy Act (FERPA), U.S. Dep’t of Education, https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html (last visited on Jan. 24, 2019). ¹⁴ Council of Parent Attorneys and Advocates, https://www.copaa.org/default.aspx.