Guns, schools and claims – Part 2
Schools can be held responsible for what their personnel and students may do to each other.
How much discipline may a school use with students to protect them from harm?
In Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S. Ct. 1661 (1999), the U.S. Supreme Court expanded a school board’s liability for sexual harassment of one student by another. This followed on the heels of publicity over discipline of a first-grade boy who kissed a girl classmate because he liked her.
While there may have been public reaction that such discipline was ludicrous, as the court points out, sexual harassment can be a violation of antidiscrimination aspects of Title IX of the Education Amendments of 1972.
Citing §1681(a) of the statute, Justice Sandra Day O’Connor noted that the act provides that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
In the underlying Davis case, a fifth-grade girl alleged a prolonged pattern of sexual harassment by one of her classmates, with no action taken by the teacher or the school. However, the court found that their ruling did not necessarily mean that the school would be liable for money damages, as the law provides that “private damages actions are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue.” Hence, it appears that schools can now be held responsible not only for what the school and its own personnel may do, but what students may do to each other.
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While Davis applies only to schools obtaining federal funds, the implication has ramifications in all school systems. Even the court commented on the “dizzying array of immature behaviors” present in schools and suggested that damages should not be available “for simple acts of teasing and name calling . . . even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.”
Handling a school abuse or injury claim
What steps might the claims representative or attorney acting on behalf of a school board take when presented with a claim for any sort of student-on-student injury or damage, including harassment? Obviously, this will depend on the nature and results of the event. A few commonsense steps may help:
Coverage. Where the school is “self-insured” for a broad range of exposures, pinpointing the precise covered “peril” may be less crucial. However, under any specific liability insurance policy, the allegation must fit the coverage. If the claim involves injury or death, it may fall under the “bodily injury” peril (if not otherwise excluded), or if it involves damage to a student’s personal property, it may likewise be a covered peril.
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Various aspects of harassment or discrimination may present greater difficulty in fitting a standard peril such as “personal injury.” Such coverage would apply only to the five specific offenses cited in the commercial general liability (CGL) policy, including “oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services, [or an] oral or written publication of material that violates a person’s right of privacy.” Taken literally, these are fairly limited perils, and, depending on court interpretation, may or may not include aspects of sexual or other type of harassment, discrimination, or offensive behavior. A different set of coverage issues might arise where a student’s injuries arise from a school-sponsored sports event.
Next month we shall continue our look at the investigation of school-related claims.
Ken Brownlee, CPCU, (kenbrownlee@msn.com) is a former adjuster and risk manager based in Atlanta, Ga. He now authors and edits claims-adjusting textbooks. Opinions expressed are the author’s own.