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IN DEPTH: Avoiding Lawsuits is Focus of School Newsletter
Public school administrators face difficult choices every day, but when it comes to avoiding lawsuits, the choice is clear: if you want to protect your school, worry about proper procedure first, then about right and wrong.
Seemingly every aspect of public school management is weighed down by procedural requirements. The goal is to treat everyone fairly, but more than ever before, students, parents, and teachers emerge from difficult situations feeling frustrated, angry and wronged. The due process revolution promised better.
But trust and authority cannot be replaced by due process. This fact is well-illustrated by a recent feature article in the School Superintendent's Insider (SSI) discussing "Four Steps to Help Employees Return to Work After Being Cleared of Misconduct."
Students must have means to make reasonable complaints about misconduct, but school leaders lack the authority to stop even the most outrageous claims. SSI advises that "if an investigation reveals that an employee accused of grabbing a student was restraining the student from hitting another student, you can, in all likelihood, let the employee return to the same position." But why should such a situation result in a lengthy investigation to begin with?
Is it because many people don't trust school administrators? Sadly, many people don't trust procedural hearings and investigations either, and often for good reason. Step 2 of 4 to return exonerated employees to the classroom, according to SSI, is to "Protect Students with Monitoring and Supervision." This is necessary because "investigations are never perfect, and there's always the possibility that the employee did do something wrong. . . . Also, in some cases, a court may order your district to reinstate an employee, even if the employee likely was engaged in misconduct."
While accusations and resultant hearings may always be a part of the public school landscape, it is school principals and other teachers that are best positioned to protect both staff and students. But these school leaders need the authority to act decisively and to rebuild trust. The fear of litigation stands in the way of these essential changes. How?
School administrators constantly tip-toe for fear of a lawsuit. SSI advises that when returning an exonerated employee to the classroom, "Your district will have to handle it tactfully and professionally. Otherwise, the employee may sue you for, say, a perceived demotion or adverse employment action, or the students and their families may sue you for negligent hiring, retention, and supervision."
Rather than evaluating the character of their staff in any meaningful way, administrators are preoccupied with meeting extensive documentation requirements. Comprehensive documentation is necessary to "protect your district from increased liability in the event the employee acts improperly with students after he returns."
Finally, administrators cannot honestly face parents or teachers in any difficult situation. SSI recommends sending a letter to parents when reinstating an employee, but also broadly states, "be careful what you say." Their sample letter follows. As a parent, would you be reassured by this sample letter? As a teacher, would you feel supported?
Sample Letter: "Dear Parents: As you may be aware . . . Mr. John Right has been on administrative leave, pending an investigation into a March 8 incident. . . . Please know that our school attorney has completed an investigation, in accordance with district policy to protect students, and has assured us that Mr. Right may return to work. . . . We have found no reason to take disciplinary action. Please do not infer or assume anything negative about Mr. Right's character or performance based on this allegation and investigation. As always, district staff will do its utmost to protect all students, as required by school policy."
More publications focusing on school and law in Common Good's "Dealing with Legal Fear in America's Public Schools"
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