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.

Monique Kleinfinger and her daughter Samara, 12, recount how she was hit by a half-dozen other students at A.E. Wright Middle School on Nov. 20. “They seemed to think it was a big, funny joke,” Samara said. (Lawrence K. Ho / Los Angeles Times / November 30, 2009)

The Calabasas middle school that was shaken this month by attacks on redheads was jolted again Monday when news spread that two 12-year-olds and a 13-year-old had been arrested in the bizarre incident.

Apparently spurred by a Facebook site and inspired by the animated “South Park” television show, “Kick a Ginger Day” brought notoriety to A.E. Wright Middle School, an ordinarily peaceful campus that sponsored a tolerance assembly for students Monday in the wake of the attacks. The “South Park” episode, first shown in 2005, was itself supposed to be a lesson in tolerance but misfired, with harassment of red-haired students taking place at schools across the U.S. and Canada over the last few years.

In Calabasas, an affluent community northwest of Los Angeles, school officials have identified nine children believed to be responsible for the assaults but their investigation is continuing. Eleven victims have come forward.

All the injuries were minor, officials said.

Two 12-year-old boys are suspected of battery. A 13-year-old boy was detained on suspicion of cyber-bullying — making a threat via the Internet — because of his written response to a Facebook invitation to the Nov. 20 spree, according to Los Angeles County Sheriff’s Lt. John Benedict. The boys, who face possible criminal charges, were released to their parents.

Samara Kleinfinger, 12, said she and other red-haired students were summoned to the principal’s office on Nov. 20. There already had been at least one attack and administrators, alerted by students to the possibility of more, wanted to warn Samara and others to be careful.

Samara said she was punched and kicked by six students on her way to the office.

“They seemed to think it was a big, funny joke,” she said. The rest of the day, a knot of friends protected her as she made her way from class to class.

On the first school day after Thanksgiving break, principal Kimmarie Taylor cautioned students on the public address system to be mindful of their responses to reporters and news crews who had gathered on campus. At an assembly earlier, she attempted to demonstrate the irreversible consequences of ill-thought-out actions by having students try to put toothpaste back into a tube using toothpicks. Later, they wrote essays about making the school a better place.

“This was out of left field for us,” said Taylor, pointing out that the students under investigation had not been in trouble before. Some were given five-day suspensions — the maximum allowed under state education rules — and had already written letters of apology to the victims, she said.

“They’re all good kids,” she said. “They just made a very bad choice.”

In the show’s Ginger Kids segment, foul-mouthed Eric Cartman spreads word at school that “gingers” are genetically defective, evil, and out to get non-ginger students. But when classmates dye his hair red as he sleeps, Cartman rallies other red-haired students with chants of “Red power!” Only after inciting the red-haired kids to round up non-gingers for “extermination” does he learn that he’s been the victim of a prank. At the end, all the students sing about brotherhood.

Intended to be satirical, the show played off virally-spread events aimed at Jews, homosexuals and other minorities. But satire can be lost on the young, some experts said.

“The irony of this is, the episode that has been linked to this was in fact underscoring how hurtful, destructive and horrible bigotry is,” said Donald Zimring, superintendent of the Las Virgenes Unified School District. “That kind of lesson is a fairly complex lesson. It’s going to get lost on a 10-, 11-, or 12-year-old. . . . They don’t understand the deeper meaning.”

South Park’s writers were unavailable for comment, said a representative from the show. But the show is rated for “Mature Audiences Only.” Shows with such ratings may have content “unsuitable for children under 17,” according to Federal Communications Commission guidelines.

“Sometimes TV producers, even those wanting to represent peaceful outcomes, do negative modeling,” said Ron Slaby, senior scientist at the Education Development Center and the Center on Media and Child Health. “When you show hateful adversarial behavior or even concepts, the effect may be most pronounced with those who have the least resilience against it.”

The annual kick-a-ginger event has brought angry criticism from people who feel the show’s producers should have known better. A judge in Calgary, Canada, where 13 high school students swarmed a red-haired boy in a locker room, called the show “a vulgar, socially irreverent program that contributes nothing to society.”

In Calabasas, a parent said she knew one of the boys who was detained and described him as shy and quiet. Alexandra Townsend said the boy was recently bullied himself, tied to a basketball pole by other students.

Townsend said she’s considering private school for her daughter, Jasmine. While students had mixed opinions about the significance of the incident, parents who spoke to The Times Monday were not at all ambivalent.

“They should be very, very harsh with the punishment,” said Ruthie Stockfish, who was dropping off her daughter Ella’s clarinet. “My daughter has light-brown hair. She’s cute. Is tomorrow going to be cute-kid-hitting day?”

victoria.kim@latimes.com

richard.winton@latimes.com

Times staff writer Steve Chawkins contributed to this report.

Copyright © 2009, The Los Angeles Times

Dr. Dragan’s Response to the above article:

“The prompt and meaningful response to the recent “ginger” attacks by the A.E. Wright Middle School and the Los Angeles County Sheriff’s Department are to be commended. Too often such bullying is tolerated as kids being kids. Instead, school and police officials took these incidents seriously. Their actions helped restore a climate of acceptance and respect where this type of episode will not be tolerated. The school acted appropriately when it disciplined the students according to its student code of conduct and had the students apologize for their actions. Moreover, the tolerance assembly transformed this terrible event into a teachable moment for all students. As someone who helps schools create safe learning environments, I will use this case as a good example for how schools can respond to any kind of bullying. All schools need to remain vigilant, aware not only of what is happening on school grounds, but aware of outside pressures including the negative influences of certain TV series, and the negative influence of “following the crowd” through social networking tools.”

In defense of the school, it should be noted that lack of supervision or inadequate supervision may not necessarily create liability; it must be shown that the lack of supervision is the proximate cause of the injury.  Further, for the plaintiff to recover there must be a duty to supervise the plaintiff on the part of the school. 

A key element is the distinction between a duty to render specific supervision and a duty to provide general supervision. 

When, as an education expert, I review the elements of a case I determine whether specific or general supervision is required, under the circumstance.  The second element of the review focuses upon the competence of the person supervising, the location of the supervisor at the time of the injury, and the number of supervisors on duty.

The difference between specific and general supervision

Specific supervision is required when there is instruction, participant incapability, or certain participant behaviors.  Specific supervision is most often thought of in the instructional mode.  From a legal perspective, instruction is being given so that the individual can gain that knowledge of the activity, understanding in terms of one’s own capabilities, and appreciation of the potential injuries required to have the participant assume the inherent risks of the activity.  As the participant gains in knowledge, understanding, and appreciation, the degree of specific supervision required is reduced, and, in fact, the participant is provided with transitional supervision and then general supervision. 

Specific supervision is not a function of the activity, but of the individual participating.  Some people talk about high risk activities or hazardous activities – it is not the activity which is hazardous or high risk, for the courts have not held any activity but boxing inherently dangerous, but the people and how they participate; in other words, reference should be made to “people hazards” rather than “activity hazards.” 

The determinant of likelihood of injury is directly related to the participant’s skill capacity, physical and mental condition to do the activity, and knowledge/understanding/appreciation of the activity itself.

When there is inability to perform the activity, due to physical disability or lack of mental capacity, then specific supervision is required.

Another situation in which specific supervision is required is when participant behaviors so indicate, i.e., when the teacher or sponsor has notice of the “propensity” of the individual to behave in a manner which either is self-injurious or injurious to others.  This notice can be either actual or constructive.

______________________

This is the first in a series of articles on supervision and student injury.  The next will focus on transitional supervision and general supervision.

This is a good time to reflect and to plan for the new school year. 

If you are a teacher – how safe is your classroom? 

How can you arrange your classroom so that you can minimize the chance of a student accident?  Look around the room and consider what your most distracted student would do in the environment.  Plan for the worst so that the worst won’t happen.  Avoid hazards so that the likelihood of school accidents is reduced.  Don’t keep a hot plate or a crock pot in your classroom and don’t use extension cords not made for the job.  Check the chairs and desks.  Are they all safe, or do some need to be repaired?  Let your principal know when you feel that something is not safe in the class.  

If you are a principal – how safe is your school?

How can you effectively communicate with your teachers about safety in their classrooms?  Do you have a one-time meeting at the beginning of the school year to review safety or do you go into each classroom with your head custodian and “inspect” it along with the teacher?  After all, you are the leader of the school and that includes not only academic leader but the person who oversees the safety of your students and staff.  Check to be sure that your school is using the right AV cart to hold that television and that the straps are securely holding it to the right type of cart.  I worked on a case several years ago where the jury awarded a student $1.7M when an AV cart with a 55 lb. television fell over and hit him in the head.  The cart was unsafe and had been recalled but the school ignored the notice.

In 2003, Savana Redding was an eighth-grader in a small town of Safford, Arizona near the border of New Mexico.  That fall, a boy had gotten violently ill from taking pills at school.  When another girl was found with several white pills in a folder, she told Vice Principal Kerry Wilson that she got them from Savana.  The pills were prescription-strength ibuprofen and equivalent to two Advil tablets.

Savana said she knew nothing of the pills.  Her backpack was searched.  When no pills were found, Wilson sent her to the nurse’s office where she was told to remove her outer clothing and to pull out her bra and underwear to check for hidden pills.  Nothing was found.  Her parents filed a lawsuit against the school.

Under federal law, public officials can be sued and held liable if they violate a person’s “clearly established” rights under the Constitution.  Judges around the nation were divided over whether conducting a strip-search at school was unconstitutional.

In an 8-1 decision by the Supreme Court on June 25, 2009, the justices indicated that school officials lacked justification for such an invasive search of a 13-year-old girl who was suspected of hiding ibuprofen pills.

Forty years ago, the Supreme Court assured public school students that they do not shed all of their constitutional rights at the schoolhouse gate.  And twenty four years ago, it included the right of privacy among the constitutional protections students retain while in classrooms, hallways and on school grounds.  Nonetheless, public school students do not have rights fully equal to those enjoyed by adults.

The Court allows mandatory and random drug testing of students as a condition for taking part in nearly any facet of school activity.  The Court has been largely unwilling to second-guess school officials’ claims that there is a drug problem at their particular school, even if the evidence is not very strong.  Because the Court has accepted the idea that drug abuse is harmful to kids, it has fashioned a modified constitutional regime that governs searches of students.  In a technical sense, the Court has not demanded that school officials have “probable cause” before they may search students when drug abuse is suspected.  Some “reasonable” basis is the standard in the public school.

The Court dealt with this issue in Savanna’s case.  It explored how the constitutional regime, involving public school students’ rights, is to be applied when officials’ have suspicion about a possible substance abuse problem just with a specific student – not within a school-wide setting.

What was missing from the suspected facts, which pointed to Savana, was any indication of danger to the students from the power of the drugs, their quantity and/or any reason to suppose that Savana was carrying pills in her underwear.  The combination of these deficiencies was fatal to finding the search reasonable.

Should school officials be able to search students for prescriptive drugs when there is evidence that, in the particular school, there is a problem with students selling these drugs to their friends?

            That being said, inadequate supervision, or lack of supervision, may not necessarily create liability – it must be shown that the lack of supervision is actually the proximate cause of the injury.  Further, for the plaintiff to recover there must first have been a duty to supervise the plaintiff on the part of the defendant.  A key element is the distinction between a duty to render “specific” supervision and a duty to provide “general” supervision.  Other issues deal with the competence of the person who is supervising, the location of the supervisor at the time of the injury and the number of supervisors on duty.

What constitutes due care and adequate supervision depends largely on the circumstances.  These can include the number and age of the children, the activity in which they are engaged, the period for which they may have been left without supervision, the ease of providing some alternative means of supervision and the capacity of the child. 

            The duty to supervise children in schools and other organizations, such as the YMCA summer camp, after-school park programs and other activities, may arise in the same manner as any duty owed – by statutory requirement, by voluntary assumption of a duty and by the duty being inherent in the situation.  The basis of duty is whether or not there is a special relationship between the child and the organization which requires that organization to take affirmative action and provide a reasonable safe environment.  However, inasmuch as one is not an insurer of safety and all situations do not give rise to a duty, there are a considerable number of cases wherein the allegation is failure to supervise – but in fact there is no duty to supervise.  The duty to supervise should be distinguished from the authority to control the conduct of participants under the doctrine of in loco parentis. 

            An example of a school not having a duty to supervise is depicted in the following example:  An 8-year-old was struck by a 12-year-old on a bicycle while riding on the school playground.  The accident happened on a Saturday.  The court held that where the activity drawing the spectators was not a school-related activity, there was no requirement for supervision by the school.  Further, the school did not have knowledge that bicycles had been ridden in that area in a negligent or dangerous manner prior to the accident. (Orsini v. Guilderland Central School Dist. No. 2, 46 A.D. 2d 700, 360 N.Y.S. 2d 288 (1974); see also Diel v. Board of Education, 1 A.D. 2d 676, 146 N.Y.S. 2d 511 (1955) child struck by playmate on bicycle when about ready to leave playground – no duty; Kantor v. Board of Educ., 251 A.D. 454, 296 N.Y.S. 516 (1937) no duty, boy playing tag on bicycle injured child.))

            Another example is where there may be no duty to supervise because of the nature of the activity and the expectations and/or capacity of the children.  In a 1986 Tennessee case a 13-year-old eighth grade boy was injured, while on a school field trip, when struck by an automobile when he crossed the street after lunch to go to the park.  Plaintiff alleged that the two teachers were negligent in not personally escorting the student across the street.  The court held that teachers do not have such duty where there was nothing to suggest that the student would not use ordinary care for his own safety or that the street was unreasonably dangerous to cross. (King v. Kartanson, 720 S.W. 2d 65 (Tenn. App. 1986))

            If an injury is not foreseeable, there is no duty to supervise.  In a D.C. case involving a child who wandered off public school playground, through a gap in the fence, and was struck and killed in the street by a truck, the court said that if no special dangerous condition exists, a school is not under a duty to supervise all movements of its students at all times, but where such a condition does exist, and the school has knowledge of its existence, greater supervision is required to insure the safety of the students. (Ballard v. Polly, 387 F. Supp. 895 (1975); see also Abdur-Rashad v. Consolidated Rail Corp., 135 A.D. 2d 208, 524 N.Y.S. 2d 716 (1988) child injured on tracks near playground, no duty to child who left playground absent any defect or condition of playground making danger foreseeable.))

            In conclusion, there first needs to be an activity which requires supervision if lack of supervision is going to be alleged.

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.