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SEE YOU IN COURT! - January 2016

CABE Journal

January 2016

Authors: Thomas B. Mooney

At the time, it seemed like a good idea.  The Nutmeg Public Schools have long cherished its friendship with its sister city of Nutmeg, Belgium, and after years of discussion and months of planning, last summer the Nutmeg Board of Education approved a trip for interested middle school students to visit Nutmeg, Belgium this spring.  Individual “pen pals” in Nutmeg, Belgium were assigned to each of the Nutmeg, Connecticut students.  In anticipation of the trip, the students were asked to write back and forth with their assigned pen pal by email and instant messaging.  However, as the date for the trip approaches, concern has grown that world events and related uncertainties make the trip potentially unsafe and inadvisable.

At the last Board meeting, some parents spoke during Public Comment about their concern over international travel, and they urged the Board to make a decision on the Belgium trip sooner than later.  Pamela Parent’s comments echoed the concerns of most parents. “We thought that this trip would be fun for our children, but with all the bad news, we think it will just be frightening.  We know that we will lose a deposit if you cancel,” Pamela said, “but if you are going to cancel, do it now to cut our losses.”

Board member Penny Pincher spoke up when Pamela was finished.  “I sympathize with Pamela and all these parents.  When they signed up for these trips, neither they nor we anticipated that the world would become such a dangerous place.  I think that we should bite the bullet and vote to cancel the trip now.”

Board member Mal Content chimed in, “I too think that we should just cancel the trip.  We don’t want to wait much longer and cost the parents even more money.  Moreover, we have to think about ourselves.  If God forbid something bad happens, won’t we be liable?”

Veteran Board member Bob Bombast scoffed.  “Who says anything is going to happen?  This isn’t our first international trip.  Besides, we can just make parents sign a permission slip that waives all liability.  If parents want to send their children on trips, it should be on them, not on us.”Mr. Superintendent spoke up.  “It is true that we ask parents to waive all claims as part of giving us permission for the trip.  However, I think this should be a question of what is best for our students, not what does or does not expose us to liability.”

“But Mr. Superintendent,” Bob went on, “Won’t parents be out their deposit if we cancel now?  Costing the parents their deposits is more likely to get us sued than taking our chances and going ahead with the trip.”

The debate went on for another half hour.  At the end, Penny convinced everyone but Bob, and the Board voted 4-1 to cancel the trip.  Did the Board do the right thing?

*        *        *

There is no right answer here, and superintendents and board members must make decisions concerning international travel as you see fit.  However, this situation raises a number of legal issues for consideration.

First, boards of education are not insurance companies, and thus school districts are not automatically liable for any bad thing that happens.  Rather, when parents bring claims for negligence against school districts, they must establish certain facts before liability can be imposed.

First, a school district must have a duty of care.  If a teacher acts on his or her own and organizes a trip, for example, the school district should not have any responsibility (“duty of care”) for that trip.  However, school officials must be very clear on this point.  Teachers should not be permitted to use their position and access to students to convince students and their parents to participate in their private ventures.  Rather, while teachers can engage in private activities, they should be required clearly to communicate to students and parents that any trips that they may organize are not sponsored by or affiliated with their employing school district.

Second, even when there is a duty of care, school officials will not be liable for negligence unless their actions were unreasonable.  Sometimes bad things happen through no fault of teachers or administrators.  Unless school officials acted unreasonably, however, they will not be liable.

Third, even when school officials act unreasonably they will not be liable for injuries to students unless their unreasonable actions were the direct cause of the injury.  To be sure, when a sympathetic plaintiff makes a claim, the judge or jury will be inclined to attribute the injury to the unreasonable action.  However, before liability will be imposed, the plaintiff must make that causal link.

One thing is certain – Bob is wrong in claiming that school officials can avoid liability by asking for parents and students to waive liability claims.  In serving the public, school officials would not typically wish to put parents and students to the choice of waiving legal rights as a condition for participating in a school-sponsored activity.  But even if one agreed with Bob and thought it appropriate to do so, such waivers are ineffective.  The courts have held that it is against public policy to ask someone to waive future claims of negligence.  Such waivers would typically be the result of uneven bargaining power, and absolving people of the consequences of their actions could cause people to be less careful than they should be.

This is not to say consent forms are unnecessary.  Such forms serve an important purpose by notifying parents of the trip and the related conditions.  Indeed, it would arguably be unreasonable for school officials to sponsor a trip without providing such information.  Providing such information permits parties to make an informed choice.  Moreover, such information gives parents the opportunity to raise any special concerns that they may have, such as allergies or a need for special supervision.

Finally, in discussing and taking action here, the Nutmeg Board of Education violated the Freedom of Information Act.  Boards of education must include on their meeting agendas any items on which they will conduct discussion or take action.  A brief comment in response to a point raised during Public Comment should not be considered a “discussion” and thus should not be a problem.  However, here, Pamela Parent’s request during Public Comment became a springboard for lengthy Board discussion and action.  Discussing whether to cancel an international trip was certainly an important topic, but if the Board wants to discuss that topic, it should have added the item to the agenda (permissible only at a regular meeting), or put that topic on a future agenda for discussion and action.

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