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2012 School Law Update for NSIAAA Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


The Plan for Today


The Plan for Today  Title IX  Premises Liability  Reporting Child Abuse and Neglect  Locker Room Supervision


Title IX


Title IX  Equal Opportunity • Participation opportunities proportionate to enrollment • continuing practice of program expansion • interests and abilities have been fully and effectively accommodated by the present program.


Horner v. KHSAA (6th Cir. 2000)  Plaintiff sued over KHSAA’s failure to sanction fast-pitch softball  KHSAA: decision based on their selfimposed “25% rule.”  Ct: KHSAA offered equal opportunities in accordance with the interests and abilities of students  State legislature intervened with statute


Title IX  Equal Opportunity  Equal Treatment • Each gender must be treated equally by the educational institution • Enforcement “laundry list”


Ollier v. Sweetwater Union Sch. (Cal. 2012)  Class action o/b/o all female student athletes  Ct. found inequality in: • Facilities • Training • Publicity

•Equipment • Coaching • Scheduling of games and practices

 School ordered to submit plan


Daniels v. Brevard Co. Sch. Bd (Fla. 1997)  Softball v Baseball  Baseball had • • • •

Lighted playing field Batting cage Better bleachers Concession stand

• Scoreboard • Bathrooms • Signs • Press box

 School: all paid for by booster club


Daniels v. Brevard Co. Sch. Bd (Fla. 1997)  Ct.: “by acquiescing to a system that relies on booster-club funding, the school district “is responsible for the consequences of that approach”  School ordered to submit plan to remedy  School’s proposed plan prohibited the boys from using booster club amenities


Daniels v. Brevard Co. Sch. Bd (Fla. 1997)  Ct: • rejected “symbolic” discrimination that the noticeably unused amenities would invoke against the girls • refused to let the board impose a “separate disadvantage” by punishing both girls and boys • School ordered to provide amenities to girls


Cmtys. for Equity v. MHSAA (6th Cir. 2006)  Litigation over scheduling of girls’ sports seasons  Michigan scheduled • volleyball in winter • Soccer in the spring • Tennis in fall

• basketball in fall • golf in the spring • Swimming and diving in the fall

 Plaintiffs: hurt girls in training, club teams, college recruiting


Cmtys. for Equity v. MHSAA (6th Cir. 2006)  MHSAA: Scheduled to avoid programs having to share facilities, officials, and coaches.  Ct: nontraditional seasons disadvantaged girls  Ct ordered • New Schedule • Awarded $7 million in attorneys fees


Parker v. Franklin Cnty. Sch. (7th Cir. 2012)  The girls’ basketball started two weeks before the boys’ season.  During this time, the girls’ games are scheduled for prime time nights, or evenings that precede days without school.  After boys’ season starts girls team plays on week nights  “the atmosphere is dramatically different.”  The girls struggle to complete their homework and study for tests.”


Parker v. Franklin Cnty. Sch. (7th Cir. 2012)  Ct: “present disparity in scheduling has the cyclical effect that stifles community support, prevents the development of a fan base, and discourages females from participating in a traditionally maledominated sport.”


Premises Liability


Premises Liability  Legal Standards  actionable negligence occurs when a defendant owing a duty fails to exercise the degree of care that a reasonable and prudent person would exercise under similar conditions  standard varies from one type of establishment to another because different types of businesses and different types of activities involve different risks  Your standard is other schools


McIntosh v. Omaha Pub. Sch, (Neb. 1998)  Student at Omaha South High School  attending spring football clinic  Field “rutted” with little grass  Broke leg jumping to deflect a pass

 Ct:  First applied “willful and wanton” standard  S. Ct.: School liable if negligent in maintaining field – Plaintiff doesn’t have to prove willful and wanton


McIntosh v. Omaha Pub. Sch, (Neb. 1998)  School’s evidence  conducted yearly maintenance of the field  only injury reports were students scraping and bruising themselves

 Ct. no evidence  that OPS failed to use reasonable care to protect against broken legs  that the condition of the field was a proximate cause of McIntosh's injury


Davis v. Cumberland Co. Bd. (N.C. 2011)  6-year-old boy fell through the space between the bleachers and suffered a severe head injury.  School’s Defense  bleacher met the Building Code requirements  AD inspected the bleachers twice a year for safety and maintenance.  AD unaware of any problems with the bleachers or prior falls through space


Davis v. Cumberland Co. Bd. (N.C. 2011)  Ct: Evidence of compliance with the Building Code alone not enough • Combined with lack of notice of any prior problems with its bleachers, was sufficient to shift the burden to plaintiff,” • Plaintiff could not prove that a reasonable school board would have acted differently


Strauss v. Plainedge H. S. (N.Y. 2011)  Basketball official, slipped and fell  Slipped on water spilled by the teams  Official and his spouse sued the schools for negligence in their ownership, operation, management, supervision, use and control of their premises.

 Schools argued:  They didn’t create the problem  They didn’t know  Official assumed the risk


Strauss v. Plainedge H. S. (N.Y. 2011)  Court: • “there was no evidence that a dangerous or defective condition existed, and that the defendants either created the condition or had actual or constructive notice of it.” • It is officials’ job to inspect the court • Discussion re students spilling speculative


Child Abuse


Recent Public Scandals  Penn State  Maxwell  Crete


The Penn State Scandal • In Nebraska, every adult IS a mandatory reporter.


Child Abuse Defined 28-710 Knowingly, intentionally, or negligently causing a child to be: (a) Placed in a situation that endangers his or her life or physical or mental health; (b) Cruelly confined or cruelly punished; (c) Deprived of necessary food, clothing, shelter, or care; (d) Left unattended in a motor vehicle if such minor child is six years of age or younger (e) Placed in a situation to be sexually exploited by allowing, encouraging, or forcing such minor child to solicit for or engage in prostitution, debauchery, public indecency, or obscene or pornographic photography, films, or depictions; or (f) Sexually abused.


Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number


Standard for police arrest without a warrant Has knowledge, based on information which is reasonably trustworthy under the circumstances, which justifies the person’s prudent belief that abuse and neglect has or is likely to occur


Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number


Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number


Keep in Mind:  Only 1/3 of abuse gets reported  Reasonable ≠ true  Adult abusers groom adults as well as kids


Cases Involving Educators


Commonwealth v. Allen (Ky. 1998)

 Teachers suspected fellow teacher  Told principal, who did not report  Teacher abused third student, assistant principal reported  Teacher charged with failure to report  Kentucky Supreme Court affirmed conviction


Commonwealth v. Allen (Ky. 1998)

 What about multiple reports? “In this world where imperfections abound, it is not illogical or inefficient for the legislature to require every individual entrusted to the care and supervision of children to be required to report crimes against those children”


Pesce v. J. Sterling Morton H.S. (7th Cir. 1987)

 School Psych contacted by student  Referred to private therapist  Decided to maintain student’s confidentiality until student agreed to allow report  Superintendent suspended for 5 days and demoted


Pesce v. J. Sterling Morton H.S. (7th Cir. 1987)

 Psych sued claiming violations of 1st, 4th, and 14th Amendments  Illinois statute: Any . . . school personnel . having reasonable cause to believe a child known to them in their professional or official capacity may be an abused or a neglected child shall immediately report or cause a report to be made to the Department [of Children and Family Services].


Melleady v. Blake (Dist. N.J. 2011)

 Parents sued after kids removed from their home; Defendants claimed immunity  Ct: reporters do not have absolute immunity  Ct: Test is whether a reasonable person would have reasonable cause to believe that a child has been abused


Legal Immunity - 28-716 Any person participating in an investigation or the making of a report of child abuse or neglect required by law or participating in a judicial proceeding resulting therefrom shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed, except for maliciously false statements. •


Criminal Penalties  up to 3 months in jail,  a $500 fine,  or both


Report from HHS The person in charge of a school making a legally mandated report of child abuse or neglect shall receive a summary of the findings of and actions taken by the department in response to the report upon request. The amount of detail such summary contains shall depend on the source of the report of child abuse or neglect and shall be established by regulations of the department.


My Recommendations  Reporting peer abuse • If sex assault involved: report • If physical assault on campus: investigate; document; use discretion • If physical assault off campus: document; use discretion  Call before you conduct your investigation  Failure to report not in rule 27


Locker Room Supervision


Doe v. Rich Central H.S. (Ill. 2012)

 Boy complained of being bullied in locker room  Security camera caught staff talking  Boy assaulted  Case settled


Doe v. Clover H.S. (S.C. 2012)

 Three football players claimed they were hazed  13 players were suspended  The sheriff's office investigated  Bullies sued to be returned to school and team


Creekbaum v. Livingston Parish (La. 2011)

 Three football players urinated on freshman’s locker  Victim sued claiming emotional distress and negligent supervision  Coach: never had a problem before


2012 School Law Update for NSIAAA Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


2012 Legal Update for NSIAAA  

2012 Legal Update for NSIAAA

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