Dealing with School Vandalism
By Dr. Kenneth Shore
Vandalism in schools may take various forms, from writing in books to writing on desks, from marring walls to smashing windows, from cutting up school bus seats to taking school furniture apart. While the principal is typically responsible for dealing with student vandals, teachers play an important role in preventing vandalism by attending to the reasons for the behavior.
What You Can Do
- Talk with your students about caring for others’ property. Your students may need some guidance about the importance of caring for property that belongs to another person or the school. Talk with them about what to do if they lose or damage property that is not theirs, including replacing it or compensating the person. Consider asking them what they would expect to happen if another student damaged their property. Discuss how school property also needs to be treated with respect so it can be enjoyed by other students.
- Examine the student’s motivation. Understanding why the student damaged or destroyed property may help you figure out how to keep him from repeating the act. Try to identify the student’s motivation by observing him carefully, taking note of what triggers the behavior. While it is important to address these underlying concerns, this does not lessen the importance of holding the student accountable for the vandalism.
- Be sure of a student’s guilt before you accuse him. Do not accuse a student of vandalism unless you have convincing evidence that he was responsible. If you suspect him of having done it but have no proof, tell him in private of the problem and ask if he has any knowledge of what happened. If he denies it, don’t pursue it any further with him. If you falsely accuse him of having engaged in vandalism, you risk alienating him and perhaps incurring his wrath.
- Inform your principal. Make sure to let him know of all but minor incidents of vandalism. Your school may have a specific policy for handling vandalism. Also let to the principal know if the student or parent needs to compensate the school in some way for the damage.
- Inform the parents for other than minor incidents. You will be more effective in preventing future acts of vandalism if you have parent support. Whether you contact parents for a particular incident should depend on the extent of the damage. If the student has put gum under his desk or written in a book, you can handle this matter without informing the parents. If the incident is more serious, especially if it requires that the school be compensated in some way, parents must be notified.
- Require the student to make amends. Having the student remedy the problem he created is the best way of holding him accountable for his behavior. In devising this remedy, consider the nature of the damage and the age of the student, and make the punishment fit the crime. If the student has torn a page from a book, you might have him carefully tape it back in the book. If he has put gum under his desk, you might have him stay after school and remove gum from under all the desks. If he has written on the desk, have him clean the desks in your classroom. If the damage is such that the parents must pay for it, suggest that they find some way for their child to do chores at home to work off the cost in a way that is suitable for his age.
- Model respect for school property. Demonstrate to your students how you value school property through your actions. You can do this by treating items in your room with care, whether by the way you have arranged books on the shelves or the attention you have paid to decorating the room.
- Recognize students who treat property with care. Praise students when you see them handling materials carefully (“Sarah, I really like the way you have protected your books by covering them”). This not only conveys the message that care of school property is an important value but also suggests to students that treat classroom materials respectfully will gain attention from you.
- Have the student write down what he did. Have an older student describe what he did on paper and ask him to discuss the possible consequences of school vandalism. Tell him that you will put this paper in his school file and remove it at the end of the year if there are no further incidents of vandalism. You might also send his written statement to his parents while telling the student you are doing this.
- Eliminate evidence of school vandalism immediately. By showing students that the defacing of school property will not only be punished but also will be of short duration, you will discourage others from engaging in vandalism.
- Give the student a sense of belonging in school. He will be less likely to damage school property if he feels a sense of ownership and pride in the school. Involve him in activities that give him a good feeling about school so that he is more likely to care for it than vandalize it. Some possible activities: planting a garden; decorating one of the school’s walls; and painting walls that have been defaced.
- Help the student understand the consequences of vandalism. Find out from the principal the cost of repairs for the previous year for vandalism. Have students figure out how many pizza parties the school could have had if there was no vandalism.
- Make the student responsible for specific school property. Surprise the student who has engaged in vandalism by showing trust in his ability to care for school property. You might, for example, have him help you with audio-visual or athletic equipment. Tell him that you are confident he can handle this task in a responsible manner. He will not want to disappoint you.
1) Teaching Conditions: certifications, duties and powers, employment conditions, grounds for dismissal, labor laws, and collective bargaining.
2) Physical Safety of Students: negligence, liability, and child abuse issues.
3) School attendance: compulsory attendance.
4) Maintaining Order: discipline, classroom management, suspension/expulsion.
5) Student Rights/Democratic Practice: freedom of speech, beliefs, participation in governance by teachers and students.
6) Teaching Practices: subjects to be taught, curriculum, length of school year, treatment of exceptional children, copyrights on educational materials
With so many aspects of schooling affected by the law, teachers must ensure that they are proactive in minimizing the possibility of breaching any laws that stem from the aspects outlined above. The bottom line is that we must know the law so we can stay out of trouble while still being able to provide a highly creative and productive learning environment for students. Teachers must have the ability to anticipate possible dangers and take steps to avoid them, and regulate school life in such a way that learning is taking place while the rights of all are being respected.
Todays society is more litigious than ever, where people no longer hesitate to press charges when they feel they have been wronged in one way or another. Lawsuits have become very common in schools, where cases have been made against teachers, schools, and school boards. Many of these cases have been successful for the plaintiffs where millions of dollars have been awarded to them. Cases have been made and won because of various forms of negligence on the part of teachers. In the Des Hawley Secondary School case study, the new principal has great concerns regarding the carelessness of teachers on the job because twelve students were injured in a single year due to negligent acts. These incidents occurred during field trips, school sports, chemistry lab accidents, and a vehicle accident involving a teachers vehicle while transporting students. The aspect of schooling that is being neglected from these situations is mainly a breach in the regard for the physical safety of students. Teachers need to be concerned about the safety of their students because they can be sued and prosecuted if their responsibilities are neglected. If prosecuted, it is highly possible that a teacher would lose his/her job. In regarding the physical safety of students, teachers should ask themselves two questions:
a) How can I protect myself from being sued?
b) How can I avoid potentially dangerous and inappropriate behavior?
By answering these questions alone, teachers can greatly decrease their chances of being found liable if brought to court for negligence.
1). Duty A school board and its employees are under a duty to exercise reasonable care to protect students from reasonably foreseeable risks of injury.
2). Breach of Duty (Negligence) - Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done.(Blyth vs. Birmingham Water Works Co., 1856).
3). Causation - this term refers to the determination as to whether there is a sufficient causal link between the defendants negligence and the plaintiffs injury. This actually involves 2 separate issues: causation in fact and proximate cause. The first is based on the question, would the injury have occurred but for the defendants negligence? The second however is more complex. Even if there is a causal link between the defendants conduct and the plaintiffs injury, is the link so bizarre as to make it unfair to hold the defendant liable for the injury?
4). Damages as a result of the injury - If the student suffered actually damages, the medical bills and endured pain will be given a dollar amount. The dollar amount of those damages is to be recovered from the board.
It is important to note that a school board is vicariously liable for all acts of negligence performed by its employees and volunteers acting within the scope of their employment or within the scope of their authority. Liability "flows" from the teacher to the principle to the board.
Reasonably Prudent Parent
The standard of care to be exercised by school authorities in providing for the supervision and protection of students for whom they are responsible is that of the careful or prudent parent. It is not, however, a standard which can be applied in the same manner and to the same extent in every case. It will depend upon the number of students being supervised at any given time, the nature of the exercise or activity in progress, and the age. As well, the nature and condition of the equipment in use at the time, the competency and capacity of the students involved, and a host of other matters which may be widely varied but which, in a given case, may affect the application of the prudent parent standard. (Myers vs. Peel County Board of Education, 1981).
Transportation and Field Trips
A board will be vicariously liable for any negligence occurring with respect to transportation facilities owned and operated by it. When transportation is provided by a company, not affiliated with the board, the board retains a substantial degree of control over the Bus Company and over the discipline of the pupils while they are on the bus. In a case like this the boards duty to the pupil continues until the child arrives home.
It is very common when students go on school trips for either class or sports; they must get a permission slip signed in order to go. Such consent forms are not legally binding - they are just warnings and there is no consent to waive any negligent act (Barnes, 1990). The bottom line is that they do not do well when used in court. In addition to these forms, many less wealthy schools have no van for its teams to travel in, so parents and teachers are recruited to use their personal vehicles to drive team members to games. If one of the vehicles got into an accident - who would be liable? The parent driving the vehicle, the coach or teacher, the school, or the school board? This would be a very complicated situation indeed! Teachers and coaches must plan extensively in order to reduce the risk in such an activity.
Inside and Outside of school Hours(Ontario Regulation)
Every board shall determine the period of time during each school day when its school buildings and playgrounds shall be open to pupils. The period beginning 15 minutes before classes begin for the day and ending 15 minutes after classes end for the day. There is also the question of responsibility of activities before or after the school day. Normally, the board is legally responsible for the safety of its students only during school hours or during authorized out-of-school activities. If the board has allowed students to arrive early or leave late they may be held legally responsible for their safety.
Avoiding Negligence in Physical Education
The expected standard of care in physical education is straightforward. First, the exercise must be suitable to the students age and condition (mental and physical). There is a big difference in getting all of your students to play football or all of your students to jump rope. Secondly, the student must be progressively trained to do the exercise properly and to avoid danger. In other words, you cant give a student an exercise and expect them to be able to do it right away. Thirdly, the equipment must be adequate and suitably arranged. If the equipment is old and falling apart, you are at risk of an injury occurring. Finally, the performance of the exercise must be properly supervised, having regard to its inherently dangerous nature. You cant have half of your class doing one potentially dangerous sport such as floor hockey and the other half of the class playing football and expect to be able to properly supervise them all.
The fact that a teacher allows his/her students to participate in a potentially dangerous activity is not, in itself, negligence. However, one has to make sure that the standard of care taken must be appropriate to the activity. There is also the assumption of risk in sports. A person who participates in a game or sport assumes the inherent risks of participation as stated under Contributory negligence; students themselves have duty to act with reasonable care for their own safety (see Appendix B).
This makes the assumption that the player is of age and experience to be aware of the inherent risks. For example, a high school student who wants to play rugby should know already that it is a very rough sport and injuries occur quite frequently whereas a grade 7 student may not realize the extent to the possibility of injury
If a student is injured at school or during a school activity first aid must be administered if needed. The school staff can be found liable if first aid is not administered, or if it is administered incompetently, even if they are found not negligent with respect to the actual occurrence of the accident. Where necessary, proper medical attention must be obtained. Before the administration of any medical or first aid procedure, the consent of the student must be acquired. If the student does not have the capacity to consent then the consent of a parent or guardian must be obtained, this is usually dealt with at the beginning of the school year. The students have to bring home a medical consent form for their parents or guardian to sign which gives consent to any medical or first aid procedure needed while their child is in school.
After an incident has occurred, parents must be informed by the school about any actual or suspected injury to their child as soon as possible. Regardless of how an accident occurred or who may be at fault, any concerned parent would appreciate the sympathetic communication of clear information to parents by the appropriate school of board official. If this communication does not occur the chances that the parents or guardians will be hostile when they eventually find out what happened will be increased. Administrators and board members should be aware of the fact that, any statements by board representatives can be used by a plaintiff in the case of a lawsuit against the board.
The issue of educational malpractice is distinguishable from negligence. In this, the plaintiff will allege that he or she has suffered damages because the school board did not fulfil its duty to educate the plaintiff. This also addresses the concept of vicarious liability, which occurs when the plaintiffs lawyer will issue a statement of claim against everyone who is potentially liable because one cannot always predict how a judge or jury will find or assign liability. During educational malpractice lawsuits anyone can be sued, from the teacher to the Board of Education. To date, education malpractice claims have been unsuccessful in Canada and United States appellate courts.
Avoiding Negligence Overall
This was just a brief overview of what legal issues teachers must look out for, with the focus upon the physical safety of students to help meet the needs of Des Hawley Secondary School. This knowledge would help teachers be more professional because it makes us think about what activities we plan for students as well as the place the activities will be conducted. Putting this knowledge to practice will reduce the risk of injury to students as well as the chances of being liable for any injury that may occur to a student while under our care. It is recommended that all teachers should do a course or receive a very good briefing on these issues because, in the long run, it will help them, the school, the school board and most of all - the students.
Case 1: Globe and Mail Articles
The Canadian Charter of Rights and Freedoms (s.8) states that everyone has the right to be secure against unreasonable search or seizure. In 1986, the Ontario Court of Appeal stated that a principal is allowed to search a student to carry out their duty to maintain order and discipline in the school. This ruling came in response to a case where a principle searched a student after receiving a report that the student was carrying drugs. The student was invited to his office where he commenced his search. Some tin foil containing marijuana was found in the students pant cuff. It was also stated that the search can not be arbitrary - there must be reasonable grounds to conduct the search. This is also true for knapsacks and purses. When it is evident that an offence has been committed, then the police should be contacted immediately.
On November 28, 1998, the Supreme Court of Canada released a decision on a case on appeal from the Court of Appeal for Nova Scotia. This case involved a vice principles search of a student suspected of drug dealing. There was a police officer dressed in plain clothes present during the search. When a bag of marijuana was found in the students sock, the police officer proceeded to arrest the student. In this case, the trial judge ruled that the vice principle acted as an agent of the police and the search violated the students rights. The evidence turned up during the search was excluded at trial. The Court of Appeal sent the matter to the Supreme Court.
The Supreme Court of Canada (Major J. dissenting) found that there was no violation of the students rights. The court said:
1. A students expectation of privacy is diminished at school because the student knows that teachers and school authorities are responsible for providing a safe school environment and maintaining order and discipline in the school. Students know that this responsibility may require searches of students and their personal effects, and the seizure of prohibited items.
2. To require a search warrant would be impractical and unworkable in a school environment. Teachers and principals must be able to react quickly. They must have the power to search students.
3. A search may be made if there are reasonable grounds to believe that a school rule has been or is being violated and that evidence will be found in the location or on the person of the student searched. All the circumstances surrounding a search must be taken into account in determining if the search was reasonable. Reasonable grounds for a search can be based on information from a credible student, information from more then one student, the teachers own observations, or any combination of these, all taken in the context of the circumstances existing at the school.
4. The permissible extent of the search depends on the gravity of the suspected infraction.
5. The search itself must be carried out in a sensitive and minimally intrusive manner.
6. On the facts of this case, the vice-principal was not acting as an agent of the police. The officer was at all times completely passive (until the evidence was handed over to him and an arrest was made). Teachers and school authorities have the authority to maintain order and discipline under the Nova Scotia Education Act.
However, when a students locker or desk is being searched, the issue on who owns the property arises. If the school owns the property, then it does not need permission to search it. However, if the student owns or rents the property (and has not been informed that it is subject to be searched), then a search should only be carried out on reasonable grounds as part of maintaining discipline.
Teachers were overwhelmingly in favor of the 1998 ruling. Allan MacLean, head of the Nova Scotia Teachers Union, said that with the increasing problems in school today, teachers need the authority to protect students through searches. One principal said that he has seized at least a dozen knives from student lockers in 1997. The November 28 article also stated that the ruling cleared up some misconceptions teachers had about their authority to check the pouches in school bags. Constable Emmorey, a constable in the Toronto area, says that it is odd that principals have more scope to conduct searches than officers do, but nevertheless he is glad that someone has that power.
Some students were less pleased about the ruling. The November 28, 1998 Globe and Mail article says that students are afraid teachers will abuse the power given to them and will randomly search students. However, other students feel that anything that will ensure a safer learning environment for them is a good thing. Some students still feel that their rights are infringed every time a staff member searches them or their locker in school. One student, Andrew Corbin, says that even though schools in the United States are fraught with guns and drugs, it is hardly the case in Canada. Another student, Samantha Gutstadt, said that one of her friends had marijuana found in his locker during a search. The student later had trouble getting into any area high schools because of the incident. She says that if this students locker had not been searched, then he would not have been forced to drop out of school.
Case 2: Fraser vs. Campbell River School District (1989)
This case study deals with the role of a teacher in a supervisory situation. In this case, a physical education teacher took Fraser and his class outside to play rugby in the snow. After a while the game broke up and the students made snow sculptures and played in the snow. Fraser began to run towards the school and made a running dive down a hill. He tucked his body and the pressure of the snow on his head broke his neck. The action was filed against the teacher for negligent supervision.
The judge in this case threw out the charges. He stated that the physical education teacher had no reason not to take the boys outside to play in the snow. He also stated that the teacher did not encourage Fraser to take the dive, nor did he condone it. The teacher had no reason to anticipate Fraser would take the dive in the snow. The teacher was powerless to stop the dive even had he foreseen that in doing so Fraser might hurt himself.
This ruling has great implications in our own supervision as teachers. Students act very unpredictable at times, and even if you can predict those actions and you allow them, you cannot always predict the consequences of those actions. If the teacher had predicted that the student would run and dive in the snow, there is no way he could have predicted the student would break his neck. There is a limit to foreseeability and negligence in any supervisory situation. If you cannot predict a students actions or consequences of those actions, then you cannot be held legally responsible for the consequences.
Case 3: Myers vs. Peel County Board of Education
In the court case of Myers vs. Peel County Board of Education, 15 year old Myers received instruction on the rings and was taught proper method and function of spotting in Grade 10. In grade 11 gymnastics course Myers was taught levels I and II routines on the rings. On December 6, 1972, Myers and a group of other students received permission to go an exercise room not visible from the gymnasium to practice their gymnastics, while the rest of the class remained in the gymnasium. The Physical Education teacher remained in the gymnasium supervising the rest of the class while Myers and the group of students went to the exercise room. After practicing the Myers dismounted from the rings and his spotter moved away. Myers did not tell his spotter that he was mounting the rings again. After mounting the rings again, Myers attempted a straddle dismount (a maneuver he had never attempted before), landing on his neck and suffering spinal injuries leaving him a quadriplegic. The safety mats that were being used were two compressed slab mats about two and one-half inches thick were used under the rings at the time of the accident, however, much thinker crash mats were available.
Action was taken action the Peel Country Board of Education and the Physical Education instructor in the Ontario Supreme Court, charging them with negligence. The finding of the court found that the defendants were 80 percent negligent while the plaintiff was 20 percent negligent. The plaintiff was awarded $2 656.30 in special damages, $64 000.00 in general damages, and one-half of his court costs.
The decision was based upon the fact that the defendant was liable for failure to provide proper equipment and proper supervision. The evidence showed that the crash mats for these inexperienced students was a necessary precaution. Also, it was proven that there was an absence of supervision. It was noted the presence of the teacher might have prevented this accident, and the court also agreed that if adequate matting had been provided and used the accident would have been avoided.
The court used the six factors outlining the duty of care to come to their decision. The court ruled that a standard of care was not met by the instructor, because of the particular activity was potentially dangerous and injury was foreseeable. Also, the slab mats that were used were dangerous if a student happened to fall from the rings, rather the student should have been to use the crash mats.
Case 4: Eaton vs. Lasuta and the Board of School Trustees of Scholl District
In the case Eaton vs. Lasuta and Board of School Trustees of Scholl District No. 41 (Burnaby), an accident occurred outside in the playground during a physical education class. The plaintiff was a 12 year old girl named Eaton. She weighed 105 lbs., and was described as tall, lanky, awkward, and not athletic. The defendant was Lasuta, Physical Education teacher of 13 years and homeroom teacher to Eaton for 2 years.
During the last period of the day, Lasuta decided to use the period as practice for upcoming school sports day to take place about one week later. Eaton was assigned to a group of 8 students to practice for a novelty piggyback race designed for girls who were not athletically inclined. Eaton was asked to volunteer and she did, but she was not coerced. She was instructed to select a lighter, smaller girl to carry. Eaton selected Lillian Chen, who was 75-95 lbs., and then lined up with two other couples. Lasuta instructed all of the students to run the grass hockey field, but the distance was not stated. Lasuta signal the start of the race, near the beginning of the race Eaton stumbled fell and broke her leg. The plaintiff was hospitalized for three months, in traction for to of those months, and was out of school for the month of November 1973. The leg healed fine, but left two unsightly scars on her shin where the bone had been pinned. The case was dismissed with costs. The implication of this case was that children sometimes get hurt during supervised activity does not automatically mean that supervision has been inadequate.
Case 5: McKay vs. Board of Govan School
The last court case is McKay vs. the Board of Govan School Unit No. 29 of Saskatchewan. This case resulted from an accident whereby; Ian McKay was injured after he fell between parallel bars while practicing for a gymnastic display at his school. As a result McKay was a paraplegic, paralyzed from the neck down. The actions against the teacher were dismissed because of clauses in the School Act of Saskatchewan. It was stated that the principal of a school approves or sponsors an activity, therefore the teacher responsible for the pupils, but is not personally liable for damages suffered during such activities. However, the jury determined that there was a lack of competent instruction, insufficient care and attention in spotting, insufficient demonstration on the apparatus, progressive steps on the parallel bars were rushed, the instructor was insufficiently qualified and there were insufficient safety precautions taken. It also was concluded that there was no contributory negligence on the plaintiffs part.
The trial court awarded $183 900.00 in damages to McKay. The decision was appealed by the board in the Saskatchewan Court of Appeal, which set aside the judgement and directed a new trial. The reason for the appeal was because the trial judge had misdirected the jury regarding the standard of care owed by a teacher to his students and because there was misdirection to the jury regarding the amount of damages. McKay, however, appealed to the Supreme Court of Canada. The Supreme Court of Canada decided that the trial Judge had appropriately directed the jury regarding the standard of care and damages, and the awarded damages were restored. The implications of this case were that for activities, which pose inherent risks, there should be sufficient progressive instruction, demonstration and supervision. Also, instruction should be qualified in the activities over which they take charge, and the administration of a school takes on responsibility for activities, which it approves.
Case 6: Moddejonge vs. Huron County Board of Education
Two girls drowned while on a school field trip. The supervising teacher as well as one of the girls that drowned was unable to swim. No life saving equipment was available. The teacher permitted the children to swim in an area that was close to a dangerous drop-off point. When the children drifted into the dangerous area, the teacher did nothing. The court held that the duty owed by a teacher or supervisor toward children in his or her charge is to take such care of them as a prudent father would of his children. Since the teacher was acting within the scope of his employment both the board and the teacher were found liable.
An Educators Guide to Violence in Schools
1.) defendant owed a duty of care to the plaintiff
2.) defendant breached the standard of care owed to the plaintiff
3.) defendants breach was the proximate cause of the plaintiffs injury
4.) plaintiff suffered actual damage or loss
1.) Duty of Care
-statute (specific detail teachers, principals, school boards)
-common law refers to the school authorities having a special duty of care toward students in their charge
Standard of Care
-expected of personnel
-teacher actions are expected to conform to what a careful parent would do
-this depends on many things
-number of students being supervised at once
-age of students
-nature of the exercise or activity
-degree of skill training students have received for the activity
-nature of the condition
-competency or capacity of students involved
-when a teacher, principal, other does not appreciate the nature or extent of duty and therefore neglects a duty (not doing what should be done or doing what should not be done)
Ø causation-prove connection between defendants action and the plaintiffs injury
Ø forseeability-casual link between schools negligence and students injury
3.)Liability of School Boards
-liability for acts of employees carried out in the course of their employment (most times because of improper supervision of students)
-devise safe supervision system (through principal)
-exercise reasonable care in hiring employees (competent, qualified, well informed of responsibilities)
-occupier of premises owe a duty of care towards persons coming onto the premises
-warn 3rd parties (war staff students about violent student-may interfere with rights of that student; some exceptions)
-schools owes duty of care to students, employees, and person on premises; they have a general duty to prevent foreseeable harm from violent/potentially violent students
-provide safe work environment ( employees-right to refuse unsafe work)
Tips for safe workplace in schools
Liabilities Outside School Hours
Before-early arrivals not responsibility of (principals, teachers)
After-only when participating in curricular/extra curricular event
Liability for Student Conduct Off School Property
-on school trips or going to/from school
-proof plaintiff has suffered damage/loss (physical injury, loss of income, pain/suffering, loss of employment/life, nervous shock, emotional distress, etc.)
-students themselves have duty to act with reasonable care for their own safety
-one of the primary purposes for holding school boards vicariously liable for actions of teachers principal is to allocate losses reasonably
Checklist-Is ones conduct negligent? (pg. 47)
1)duty of care
-Do I owe this student a duty of care in this context?
-Is this activity during school hours and on school property?
-Is this a school sponsored activity but off school property?
-Did I assume responsibility for this student when it was not required of me?
-Did I reasonably lead parents to believe that I would provide care for their children before, during and after school?
-Did I make it clear to parents the limit of my scope of duty to their children during non-school hours?
2)standard of care
-Am I acting as a prudent and reasonable parent in the circumstances?
-What factors should I consider when determining the standard of care I should adopt in this context? (i.e. student age, physical environment, nature of activity, etc.)
-What types of mishaps and injury are reasonably foreseeable in this context?
-What precisely would the prudent parent do in this context?
-What should I do to prevent the foreseeable mishaps and injury?
3)breach of duty of care
-Did I breach my duty of care?
-Is there anything I could do to prevent harm to students or to mitigate my potential liability? (i.e. ask for help when I realize I am not providing the safety necessary to students during an activity)
-Was an injury sustained?
-Was this injury or this type of injury foreseeable?
-As a question of fact, was breach of my duty of care the direct cause of the injury?
-Was the injury a reasonable consequence of the breach of my duty of care?
-If so, was breach of my duty of care the proximate cause of the injury or was it quite remote from the injury along a chain of events?
-Did the student or any other person contribute to this injury?
-Did the student voluntarily assume some or all of the physical risk inherent in this activity?
5)injuries inflicted by students
-Does the student have a dangerous propensity?
-Do I know that this student as a dangerous propensity?
-Can I reasonably foresee a dangerous occurrence?
-What steps are normally taken in school communities when dealing with potentially dangerous children?
-What steps could I take to prevent the possibility of injury by this student?
Measures to take for reducing violence:
First exercise good judgement and common sense in acting as a reasonable/prudent parent. Also:
-review previous incidents of violence that have occurred
-consider how the incident was reported and handled
-determine the policies and procedures that should be undertaken to eliminate violence
-monitor and discuss teaching conduct with other teachers
-follow school guidelines, continually re-evaluate the guidelines
-look at what other schools are doing to reduce violence
-share the responsibility of reducing violence with the community
***It costs large amounts of money to make and implement policies addressing violence in schools but it is very important and should be done despite the money issue.
The Schools Act
In December of 1997 a new Schools Act for Newfoundland came into effect. With regards to teachers the most pertinent aspects of the Act deal with students rights and responsibilities and the suspension/expulsion provisions of the act. Students rights and responsibilities would fall under the value of attendance, student conduct, student record, liability for damage, suspension, expulsion and the appeal process. This section of the paper will detail a brief overview of the aforementioned topics and their relevance to teachers and students alike.
All persons between the ages of five and twenty as of December 31 of that school year are entitled to an education program (The Bulletin, January/February 2000). For persons who are six years of age or older on Dec 31 and sixteen years of age or under on Sept 1 of the school year, school is compulsory. For these students, unless they are excused from class under Act (5.15, 16), their parents have to ensure that they are enrolled and they attend school. There is also a joint effort between teachers, principals, and the School District Director to make every effort to ensure that regular attendance is adhered to. As well, principals have the onus of reporting any breach of this act to the Director. Students can only be excused from regular attendance of classes under Section 5. Examples of excused absences would include illness, suspension/expulsion, home instruction, or other experiences, which prove significant educational, social value, however, home instruction must be approved by the school board (The Bulletin, January/February 2000).
Section 11 of the Schools Act pertains to student conduct. It states that every student is expected to abide by the rules of the school and school discipline. They are also expected to comply with learning activities within the prescribed curriculum. As well, the act enables principals and teachers to maintain and supervise order and discipline amongst the students (The Bulletin, January/February 2000). Teachers must maintain a student record for each student which can be reviewed by the parents of the student or the student ( age 19 or older). As well, parents and students (age 19 or older) are entitled to explanations and interpretations of the record if they feel the record is ambiguous. The records are not admissible in court proceedings however, they can be used by a principal or the board in the event of acting on disciplinary measures with regards to a students conduct. Section 12(9) of the Schools Act is a safeguard for teachers against liability charges that could stem from what they place in a students record. Essentially, no action can be taken against a teacher with respect to what he/she contributes to a student record as long as he/she acted in good faith within the scope of his/her duties. (The Bulletin, January/February 2000)
Section 21 of the Schools act deals with liability of damage. The act is very cut and dry on this issue. Students and their parents are to be held liable for any damage caused by a student to the property of the board. It also goes as far as to include board employees. If property of the board or its employees are lost, damaged, or destroyed by an intentional or negligent act then the student and his/her parents are collectively liable. (The Bulletin, January/February 2000)
Section 36 of the Schools Act deals with suspension of students. Teachers, principals, and the School Board Director all play and active role in suspension of students. According to the Legal Handbook for Educators , a student may be suspended because of:
- persistent truancy
- persistent opposition to authority
- habitual neglect for duty
- the willful destruction of school property
- the use of profane or improper language, or
- conduct injurious to the moral tone of the school or to the physical or mental well being of others in the school.
Section 37,38, and 39 relate to expulsion of students. Only the School Board Director can order that a student be expelled from school. The Legal Handbook for Educators (19??) states that a student(s) can be expelled from school when the pupils conduct is so refractory that the pupils presence is injurious to other pupils or persons. In a case where a student is persistently disobedient or acts in such a way that he/she will likely cause injury to other students or staff then the principal shall warn the student and notify his/her parents and the Director in writing. If this behavior continues over a period of time and it is determined that the student has not made a satisfactory attempt at changing this behavior then the principal can report to the Director in writing again and request that the student be expelled. The parents of the student or the student (age 19 or older) may meet with the Director before he/she makes their decision. After this meeting the Director must render his/her verdict. A student who has been expelled can either be re-admitted by the Board or he/she may be re-admitted at the beginning of the next school year. Section 39 of the Schools Act allows for a review of any expulsion. If a review is requested then a panel of three School Board members would hold an expulsion hearing whereby they are authorized to render a final binding order.(The Bulletin, January/February 2000) At the hearing the student must have a full opportunity to respond to the allegations, have representation, call witnesses, and cross-examine the boards witnesses. It is imperative that the members of the board are acting as tribunals and they are unbiased (Legal Handbook for Educators). This will ensure that the student who is under review will receive a fair and equal hearing.
According to the Legal Handbook for Educators, the use of corrective force to discipline a child is either prohibited or severely restricted by most school boards. Section 43 of the Criminal Code of Canada, however, provides a defense for the teacher if physical force is used by way of correction and not deemed excessive but reasonable under the circumstances. Any teacher operating in loco parentis ( in place of the parent) is justified in using force by way of correction if it is absolutely required. If this force is deemed excessive, then section 26 of the criminal code of Canada imposes criminal responsibility on the teacher.
Any decision which affects a student be it made my a teacher, principal, or Director can be appealed by the parent(s) or the student (age 19 or older). The appeal process moves up through the school administration. By this I mean that a teachers decision may be appealed to the principal, and principals decision may be appealed to the board. (The Bulletin, January/February 2000) An appeal, if any, must be made within 7 days of the commencement of the suspension. (Legal Handbook for Educators, 19??) After hearing the students appeal, the Board can either remove, confirm or modify (increase or decrease) the suspension. They may also recommend that the record of the suspension be expunged in some instances.
In conclusion, any current or prospective teachers should have a profound understanding of The Schools Act and the Legal Handbook for Educators. These publications are readily available and provide a source of guidance for teachers, administrators, school boards, and students with respect to their rights and responsibilities as it pertains to education. Unfortunately, legal issues are becoming a frequent topic among school boards over the past couple of decades and this trend is not going to change. Through knowing the policies and procedures contained in the above mentioned documents, experienced and new teachers can uphold school board regulations and protect themselves from legal ramifications at the same time.
The Education Act
The Education Act also outlines the fact that parents and guardians can visit schools at any time, as can a member of the assembly, or a member of the clergy. If there is a trespasser on school property a principal (subject to an appeal to the school board) has the duty to refuse persons who could be detrimental to other students. Under the Trespass to Property Act, a school board has the rights and duties of an occupier with respect to the school site (school property). Thus, under this Act the offence of trespassing is when
i) entering premises when entry is prohibited (with or without notice)
ii) engaging in an activity on premises which is prohibited (i.e., skateboarding)
iii) failing to leave after being asked
If someone refuses to leave, he/she can be arrested by a police officer without a warrant.
The Education Act also states that student records are confidential. They are used by supervisory officers, the principal, teachers and the school for the improvement of instruction to pupils. Others who are allowed to see student records are
i) the pupil
ii) parent or guardian (both custodial and non-custodial), where the pupil is a minor
iii) local medical officer of health
iv) a ministry appointed person
A parent/guardian can get information removed from a record if the information is thought to be inaccurately reported or not conductive to the improvement of the student. A written request must be submitted to the principal. If the principal refuses the appeal, the matter can be sent to a supervisory officer, where a hearing is usually held. That decision is final.
Under the Education Act principals and teachers are required to report suspected child abuse as prescribed by the Child and Family Services Act. It must be reported when a child is in need of protection. The duty to report this is required by law to all citizens. Where a teacher believes they have reasonable grounds to suspect abuse, the teacher must make a report to the Childrens Aid Society. Failure to do so is a provincial offense.
Any case where a child suffers from abuse means that the child is in need of protection. It can be cases where a child has suffered physical harm from the person in charge of them or from lack of care, or the child has been sexually molested or exploited. To suffer abuse can also occur when a child has required medical treatment which was not provided, has suffered emotional harm without the parents/guardians treating it, or anytime a child suffers from a mental or developmental condition that is not being treated. However, if child abuse is reported and deemed false, no action for making a report shall be instituted against a person unless malicious intent was present or abuse was claimed without reasonable grounds.
The Young Offenders Act applies to persons between the ages of 12-17. A child is someone who is under the age of 12, and is consequently not subject to the Act. Section 3 of the Act provides 10 sections that underlie the principles of the Act. They outline the rights and responsibilities of the public, as well as the rights and responsibilities of young persons. A young person is protected under this act in that his/her name cannot be published unless authorized by a judge. Names of young witnesses to a crime cannot be published either. However, there are cases in which school officials or other professionals involved with that young person can learn their name (i.e., a principal can be aware when a student in his/her school has to attend court, etc.). As well the Young Offenders Act outlines the procedure and rules for admitting a childs statement in court. In order for a young persons oral or written statement to be admissible in court, certain conditions must be met. For example the statement must be voluntary, and the youth must be aware of their rights. There are exceptions to this rule.
If a young person is found guilty there is a number of dispositions available to allow the Youth Court Judge to take into consideration the special circumstances of the young person. Section 20 of the Act outlines the special circumstances and need of the young offender, as well as the rights of the victim and the need to protect society.
The Charter of Rights and Freedoms and its Impact on Schools:
Section 2 guarantees our right to freedom of religion, belief, assembly and association. These rights are restricted in schools. Students are not free to say as they believe in schools, associate with whom ever they wish, dress codes limit their freedom of expression, and school papers can be censored. Section 7 through 11, outline our legal and natural justice rights. These rights are somewhat suspended because teachers can impose punishment without direct explanation of the transgression and without providing a chance for the student to speak in his/her own defense. Students can be compelled to give evidence against themselves (in direct violation of s.11c), and students are not always presumed innocent until proven guilty. Section 15 guarantees our equality rights, and several school practices violate this section. Namely the age limits that are imposed on the school system. For example in most provinces the minimum age of attendance is 6 while the maximum age to attendance is 21. As well, students with mental and physical disabilities can be segregated within the school by placing them in separate classrooms. However, Section 23 provides protection for minority languages and Section 29 protects denominational rights within the school system.
Fortunately for Canada we have what is known as restricted freedoms and rights. This is provided for under section 1. S.1 reads The Canadian Charter of Rights and freedoms guarantees the rights and freedoms set out in it subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Where there have been cases brought before the courts concerning charter violations in Canadian schools, the courts have sided with the government citing that the restrictions placed on students were reasonable limits and the justification for their existence had been shown. However, even if a School Act were struck down as being unconstitutional by a court, the Canadian Legal system is governed by the principle of parliamentary supremacy. In that the government could use s.33, the Notwithstanding Clause, to keep the School Act in operation. The impact the Charter at this point has been to make teachers and students aware of their rights. Several provinces Schools Act starts off with either students or parents and students rights.