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What Keeps You Awake At Night? Defining The Appropriate Scope Of A Campus Safety Audit

May 2013 by Sara Goldsmith Schwartz

[May 13, 2013]  These days, I hear Business Officers, Heads and other educational leaders struggling with identifying the appropriate scope of a campus safety audit. So I thought I would try to help.

The threshold question is whether every school needs to conduct a safety audit this summer. In light of the numerous recent traumatic events in our educational community, and in the world around us, I do believe that it is appropriate for the Head and other school leaders to spend at least a few hours discussing safety on campus, prior to the opening of the school year in the fall. Does this mean that each school must engage an outside vendor? Does this mean that each school must spend hundreds of thousands of dollars that were not budgeted and are likely not available? Not necessarily.

The most important first step is to examine the likelihood of certain risks on campus. This can be done quite quickly. Often, I use the short-hand technique of asking administrators: “what keeps you up at night?”  If you go around the table and ask this question of each school administrator, you will quickly pinpoint certain real risks on campus.

Alternatively, we work with schools to define the appropriate scope of a safety audit through use of a questionnaire. We have developed a comprehensive document that allows us to quickly, within 45 to 90 minutes, identify the greatest risks on campus. This document can be used as a blueprint for prioritizing each school’s focus areas.

In sum, while I do believe that every independent school needs to spend a few hours examining campus safety this summer, it need not destroy the school’s budget.  Frankly, this would probably be wise to do every summer.

As you embark on this journey, consider the following contenders for top safety audit priorities:

  • Crisis management plan (if you have one, be sure it’s been vetted by experienced education counsel, as the vendors do not consider the legal ramifications of  plans; not even former and current law enforcement personnel);
  • Background checks;
  • Trip compliance; and
  • Campus safety and security (locks, security personnel, emergency notification system, etc.)

Finally, try to focus on the risks that are most likely to occur, as opposed to the worst-case scenario risks that are highly unlikely.  Budgets are limited and prioritizing is essential.

Final note: be 100% sure that counsel is involved in this prioritizing process, so that the entire process can be cloaked in the attorney-client privilege to the extent permissible in each state.

As always, please do not hesitate contact us with any questions.

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Getting It Write: Does Your Student Handbook Create A Contract?

April 2013 by Sara Goldsmith Schwartz

[April 29, 2013]  In a stark reminder for schools across the country, a federal court in Massachusetts recently allowed a lawsuit to go to trial on the question of whether an independent school breached its contract with a student by failing to follow the school’s student handbook. The Judge opined as follows: “the policies, regulations and procedures contained in the student handbook are contractual in nature and binding on the school and its students.”

At the Firm, we are seeing a significant increase in cases around the country brought under similar theories.  For instance, one of our school clients was recently sued (as well as the Head of School, Associate Head of School, Head of the Upper School, Board Chair and athletic coach), on a theory that the bullying plan was contractual as it was included in the student handbook, which the family alleged created a contract.

As school winds down for the year, now is the time to ensure that your student handbook is accomplishing the goals that you have established.  We urge you to contemplate these questions:

  • Do you want your students to be required to follow the student handbook?
  • Do you want your school to be required to follow the student handbook?
  • Do your students and/or parents sign an acknowledgment form for the student handbook?  If so, does the acknowledgment form create a contract or not?
  • Does your enrollment agreement reference the student handbook? If so, does it incorporate the student handbook into the enrollment agreement or simply reference it?

These questions should be considered within the context of relevant case law pertaining to student handbooks and student handbook disclaimers in each state.

We encourage each school to carefully contemplate the answers to these questions and to strive to ensure that all relevant school documents are coordinated in order to accomplish the school’s goals.

Please do not hesitate to contact us to discuss the interplay between your student handbook and the applicable state law that governs your student handbook.

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Jury Awards $41.75 Million To A Former Student Allegedly Injured On School Trip

April 2013 by Sara Goldsmith Schwartz and Arabela Thomas

[April 3, 2013]  On March 28, 2013, a jury in Connecticut awarded $41,750,000 to a former student and her family in a lawsuit against The Hotchkiss School.  The plaintiffs claimed that during a trip to China that was sponsored by the School, the former student participated in hikes in rural China, led by the School’s trip leaders.  During the trip, the former student was allegedly bitten by ticks and developed acute viral encephalitis.  The acute viral encephalitis caused brain damage and left the former student unable to speak.

In the lawsuit, the plaintiffs claimed that the School had failed to:

a.    warn them about the risk of contracting viral encephalitis;
b.    provide proper protective clothing and insect repellent to the students;
c.    provide appropriate medical personnel for the trip;
d.    establish a procedure for immediate transfer back to the United States;
e.    establish a proper protocol for the trip, detailing procedures for dealing with medical emergencies, notification of parents, and transfer of trip participants for treatment; and
f.    advise the plaintiffs regarding the availability of vaccines against viral encephalitis.

Preceding the trip, the former student and her mother had signed a release of claims related to the trip, but it proved insufficient to protect the School from liability for the former student’s injuries.  In fact, the plaintiffs filed a motion in limine to preclude the introduction of the release arguing that it did not apply in this case and the plaintiffs’ motion in limine was granted by the court so the jury did not even have the opportunity to consider the release.  The court’s decision to exclude the release from evidence was in part based on the fact that Connecticut courts disfavor broad waivers of negligence liability and the fact that in the court’s view, the release used by the School did not even suggest that the students were “waiving the chance to proceed against the school in the event that Hotchkiss acts carelessly.”  In fact, the court found that the waiver “in the long, bullet-pointed list of things that could go wrong…never once mentions that the school itself might be the one to make a mistake.”  Moreover, the release used by the School contained language that specifically excluded from its coverage “liability, damage, injury, loss, accident or illness…caused by the sole negligence or willful misconduct of the School, its officers, trustees, faculty, employees, agents, or representatives.”  Therefore, the court concluded that “[e]ven if the broad description of the waiver insulated the school from negligence liability, the exception to the waiver told the average reader that the waiver did not cover its negligence.”

Most significantly, at the end of its ruling on the motion in limine, the court stated that under the totality of the circumstances in the case “[e]ven if the release contained an unambiguous waiver of negligence liability, it would still be void as a matter of public policy.”  Even though the former student and her mother had months to consider the release, the court found that the release was tantamount to a contract of adhesion, because in order to participate in the trip the former student had to sign the release and the School “enjoyed a ‘decisive bargaining advantage’” with respect to the terms of the release.

Based on a public statement from the School, Hotchkiss plans to appeal the verdict.  Regardless, the verdict poignantly reminds us of the importance of risk management with respect to off-campus trips.  While clearly there is no way to prevent all potential injuries, there are numerous steps that independent schools can take to minimize the likelihood of injuries during off-campus trips.

We recommend that each school promptly conduct a comprehensive review and audit of the off-campus trips that it offers to its students and the risk management strategies that it employs with respect to such trips.  For example, during the audit, schools should examine the selection process for trip chaperones and training provided to them.  If no training is currently being provided to trip chaperones, we recommend that mandatory training be provided to chaperones before the next off-campus trip takes place.  That is simply one way to attempt to minimize potential risks relating to trips, but please contact either of us if you would like us to send you a copy of the Firm’s trip audit checklist.

***

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you need any assistance with conducting an audit of your school’s off-campus programs or with improving your school’s trip risk management techniques, including its permission and release forms.

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Update On The New Massachusetts Fingerprinting Law and Its Potential Impact On Summer Camps Operated by Independent Schools

February 2013 by Sara Goldsmith Schwartz and Susan E. Schorr

[February 5, 2013]  Private schools operating summer camps or programs in 2013 will not have to run fingerprint checks on employees and subcontractors, but the rules and regulations will  most likely change by Summer, 2014.

Through communications with the Massachusetts Department of Early Education and Care (EEC), we have learned that regulations implementing the new background check law will likely require private schools operating summer camps to run fingerprint checks on current and prospective employees who may have direct and unmonitored contact with children.  Additionally, such checks will have to be conducted on any individual who regularly provides school-related transportation to children and any subcontractor or laborer commissioned to perform work on school grounds who may have direct and unmonitored contact with children.  The regulations by the EEC and the Massachusetts Department of Elementary and Secondary Education (ESE) are being drafted in time for the start of the 2013-2014 academic year, and thus will not be in effect during the 2013 summer months when camps are in session.

In order to assess whether a summer school or camp program will be covered by the new background check law, private schools must analyze whether the summer activities taking place on their campuses qualify as a “camp” or a “summer program.” Camps are regulated by the Department of Public Health, which is currently not under the purview of the new fingerprinting law (though we believe that it is likely only a matter of time before camps will also be covered).  A “camp” that takes place at a school is considered a camp (and therefore not subject to the new fingerprinting requirements) only if it is incorporated as its own separate entity, with its own staff, and is separately operated from the school, but just happens to use the school facilities for its base of operations.  In that context, the school is considered “closed” for the summer, while the camp is in operation.  On the other hand, “summer programs” that are not separate corporate entities from the school, that take place at the school and are run by school staff, will likely be covered by the forthcoming EEC/ESE regulations implementing the new fingerprinting requirements and will need to comply with this law in the Summer of 2014 and beyond.

As we await the regulations implementing the new fingerprinting requirements, we recommend that schools review the new background check requirements with counsel and devise a practical plan for complying with them.  If you have any questions about policies and procedures for background checks, please do not hesitate to contact any member of the Firm’s education practice group.

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New Fingerprinting Requirements In Massachusetts

January 2013 by Sara Goldsmith Schwartz and Arabela Thomas

[January 15, 2013] Massachusetts recently enacted a wide-reaching fingerprinting law that requires public and private schools to obtain fingerprint-based criminal background checks on current and prospective employees who may have direct and unmonitored contact with children.  Additionally, the law requires public and private schools to obtain such checks for any individual who regularly provides school-related transportation to children and any subcontractor or laborer commissioned to perform work on school grounds who may have direct and unmonitored contact with children.

Under the new law, fingerprints will be submitted to the State Police for a state criminal history check and forwarded to the Federal Bureau of Investigation for a national criminal history check.  The fingerprinting requirements take effect for the 2013-2014 school year for new employees, and employees hired before that time must submit fingerprints for federal background checks before the 2016-2017 school year.

In addition to the requirements discussed above, the new law requires the Department of Early Education and Care to conduct fingerprint-based checks on “any applicant for a family child care, small group and school age, large group and school age, residential and placement license or family child care assistant certificate.”  Furthermore, the law requires fingerprint checks for all applicants for employment who have the potential for unsupervised contact with children, in any program licensed or funded by the Department of Early Education and Care.  The law also requires fingerprint checks for “all household members or persons regularly on the premises, aged 15 and older, of applicants for family child care licensure.”

More detailed information regarding the new fingerprinting requirements will be provided in an upcoming E-Alert.  Please note that an incorrect version of the bill has been widely circulated.  The correct version of the law can be found here.

This new law presents a valuable reminder for schools to re-evaluate their written guidelines for assessing criminal and sex offender records. Please do not hesitate to contact us if you need any assistance updating or preparing your school’s criminal and sex offender record compliance packages, as the Firm prepares these for schools across the country.