Phoebe Prince, the first-year student at West Hadley High School in Massachusetts committed suicide after relentless bullying.  This story has been covered by media around the country for the past several weeks. 

This truly is a tragedy that has the ingredients to fashion a major advance in student rights. 

Elizabeth D. Scheible, a district attorney in Massachusetts is taking on Phoebe’s bullies through the criminal justice system.  At least nine teenagers identified in the bullying tragedy are facing criminal charges, including criminal harassment which carries with it a two and one-half-year jail sentence a fine, or both.

Elizabeth D. Scheible, a district attorney in Massachusetts is taking on Phoebe’s bullies through the criminal justice system.  At least nine teenagers identified in the bullying tragedy are facing criminal charges, including criminal harassment which carries with it a two and one-half-year jail sentence a fine, or both.

Now, Phoebe’s parents are suing the school in civil court.  Schools have a duty to protect children from the harms of bullying. If the school administrators had knowledge of the harassment, bullying and intimidation of Phoebe by her classmates and didn’t act reasonably to stop it, they can be held liable for her death.

Civil lawsuits have been the norm.  But now, in addition to civil suits, if their state laws cover criminal harassment, prosecutors can file criminal charges against individual students.  If convicted, these students can spend time in jail.

This new arsenal in the assault on school bullying requires strong criminal harassment laws and prosecutors who apply those laws to the outrage of harassment in schools.

If the case in Massachusetts leads to convictions and jail time for Phoebe’s bullies this will user in a shift in student rights – one that will provide students protection under both the civil and criminal justice system.

Keep an eye on Massachusetts.

                For a plaintiff to prove negligence, generally, four elements must be proven:

1. Legal duty;
2. A breach of legal duty;
3. Proximate cause; and
4. Damages or injury.

Legal duty means conforming to a certain standard of care for the protection of others against unreasonable risks.  There is a duty of due care that the law recognizes one person owes to another.  This duty may arise from a contract, a statute, common sense, or a special relationship the parties have to one another.  Regarding students, the courts have found that schools and their employees have the duty to supervise students, provide adequate and appropriate instruction prior to commencing an activity that may pose a risk of harm, and provide a safe environment.  Usually, that duty extends to students while they are in the custody or control of the school.  Schools may have a duty to supervise students off school grounds when they have caused them to be there such as while on field trips.

                Schools may have a duty to supervise students on school grounds before and after school when they have caused them to be there, for example, when the bus drops them off.  A duty can be extended if a person assumes additional responsibilities, such as assuming the duty to supervise students before and after school.  Schools may acquire a duty to supervise when they have, by their previous actions, assumed the duty to supervise at this time such as when some staff has supervised intermittently or consistently before official time to arrive.

                Schools also have a duty to warn of known dangers even when they do not have a duty to supervise.  In the general workforce, a supervisor, and ultimately the company, is responsible for the negligent acts of employees under the doctrine of respondeat superior.  However, in education, generally no one is automatically responsible for the acts of another.  School administrators are not automatically responsible for the negligent acts of teachers.  In school situations, usually a plaintiff must find a separate duty on the part of each defendant. 

                In the context of schools, one standard of care is reasonable supervision of students.  Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for student supervision.  Other standards of care include the duty to warn parents of possible harm to their children and duty to warn of dangerous conditions on school property.

                School employees have the responsibility to hold pupils to a strict account for their conduct on the way to and from school, on the playground, during recess and lunch time, and on class trips.  Teachers have the legal duty to prevent misconduct on the part of pupils which could result in injury to a pupil and which may lead to school liability.

As a school safety expert and education consultant to attorneys, I’ve faced an endless variety of challenges.  The only common thread is that when standards of supervision in school are lax, children get hurt.

Situation: Are parents contacted when a teacher is planning a class trip and are chaperones assigned?  When planning such a trip, does the teacher take into consideration the students’ age and experience, any potential hazards associated with the planned activity, and the adult-to-student ratio?  Did the teacher review the trip with the chaperones and assign specific students to each?  Has the principal reviewed the activity?  Are emergency measures in place to allow for cell phone and radio contact, the presence of a nurse, and special provisions for students allergic to insect bites and certain foods?

Red flags: Students embark on trips without parental notice.  The teacher is unfamiliar with the site and its potential hazards.  The teacher is the trip’s sole supervisor.  The nurse has not been contacted to consider the students’ safety or special needs.

As a school safety expert and education consultant to attorneys, I’ve faced an endless variety of challenges.  The only common thread is that when standards of supervision in school are lax, children get hurt.

Sexual harassment: Most of the public’s knowledge about educator sexual misconduct comes from newspaper reports.  Journalists report allegations and these news stories increase public awareness.

How do parents and school staff recognize a red flag?

Situation: Do teachers meet with students alone in the classroom or behind closed doors in an office?  Do teachers or coaches drive students home after school or after sports?  What is the school’s policy on the relationships and contact teachers and coaches can have with students?  Does the school have clear rules on sexual harassment and do teachers and students understand the boundaries of their relationships?  When was the last time the school conducted a real exchange of information about sexual harassment?

Red flags: No meaningful training of teachers and students regarding interpersonal boundaries.  No policies and procedures or monitoring regarding a staff member’s inappropriate contact with students.  Teachers and coaches drive students home.  Students call teachers on their cell phones after school.

Last month, when I conducted an on-site review of a private school as part of my legal consultation as an education expert with an attorney on a school shooting matter, I came upon two isolation rooms that were padded with black padding and lit by a 40-watt florescent bulb.  The principal told me that these are used as “incentives for the kids to follow the rules.”

Congressional investigators uncovered widespread abuse of techniques used to restrain or discipline special education students in U.S. schools, with some deaths linked to the practices.  The Government Accountability Office (BAO) released a report recently that documented serious problems with the way children with disabilities are being treated in public schools, including cases of children being held face-down on the ground.  (Read full report)

In some cases children as young as 6 have been locked away for hours at a time.  The GAO indicated that the policy is fairly widespread.  The state regulations about how to handle students don’t exist in about half the states.

The GAO found that state laws governing the treatment of the more than 6 million children classified as having special needs, conditions including autism and Down syndrome, are patchy at best.  Teachers and school staff lack training in correct restraint methods and positive behavioral techniques.

Parents contacted by CNN said they were not told their child was being disciplined until he or she began to behave badly at home – a sign of trouble at school.  Schools sometimes try to minimize or deny that this takes place.

In one situation that I am personally familiar with, the mother of a 13-year-old child with Down syndrome was contacted by the child’s teacher in March by telephone.  The teacher said that this child “while in the ‘time-out’ room, took off all her clothes.”  This was the first time that this mother heard from the school that her child was being disciplined in this way.  It turned out that Victoria was taken to this room by at least two staff members at least four or more times during the school year for being non-compliant with the teacher’s classroom rules.  She was in a six-by-six cinder block “closet” and was not allowed to leave until she stopped crying and screaming and kicking the walls and door.  Once this was discovered, the school had no positive behavior plan, the mother sent a letter of “no consent” to school officials.