A School District is responsible to students and their parents, for providing
students with a safe environment in which they are given the opportunity to
acquire an education. What that means is that the priority of the district
should always be the creation of a safe learning environment for every child.
Many experiences offer an educational opportunity, but are simply not safe for
every student. Drivers education is not offered in pre-school, chemistry lab is
not taught to first graders, shop classes are not available in many districts
because they are considered unsafe.
In each of the above examples there was a cost benefit analysis performed to
determine what learning experience provides education safely. If the district
fails to meet its duty to the students and parents to provide a safe learning
environment the district will be responsible for the harm that arises from the
failure to meet that duty.
The evaluation of family planning service providers that will be involved
with students in the form of sex education, referral for abortion, referral for
treatment of STDs and the provision of birth control materials, should be made
in the light of a cost benefit analysis. Essentially the district should
determine if the educational benefit, if any, outweighs the risk of
injury/liability of the school district may face as a result of the conduct of
the family planning service provider. From a liability standpoint, the
evaluation that an insurance underwriter would make is to determine the number
of risk factors involved and the extent to which those risk factors can be
reduced or eliminated. Factors of risk that are not within the control of the
school district cannot be reduced or eliminated. Risks that cannot be reduced or
eliminated increase the potential liability for the district. The increase in
potential liability increases the cost of insuring around the risk, or the costs
for compensating the victim if damages result from the conduct.
NOTE: FAMILY PLANNING SERVICE PROVIDERS PRODUCE AND PRESENT
PROGRAMS FOR TEACHING SEX EDUCATION, INCORPORATING REFERRAL TO THEIR
AGENCIES FOR ABORTION AND BIRTH CONTROL SERVICES WITHIN THE PRESENTATIONS.
1. DECIDE IF YOUR DISTRICT WANTS SUCH A PROGRAM AT ALL.
The first level of questions that ought to be globally addressed is whether
the school district is in need of the services offered by a family planning
service provider.
•Does the district adequately educate children regarding matters of human
sexuality through their science curriculums?
•Is there a need in the district to provide information regarding human
sexual relations outside of the above instruction?
•Does the district intend to provide instruction regarding sexual practices
and family planning other than an abstinence program?
•Do the services fill a real need within the school district, or do they
provide a means by which the provider can advertise services to potential
consumers?
•Once again, by looking at these service providers from the standpoint of a
cost benefit analysis, what is the benefit these services provide to the
students and their parents within the school district?
Policy Proposal
•The district must evaluate the need for sex education, abortion referral,
birth control materials and counseling services within the school district.
•In the event there is a demonstrable need for these services, then the
district must decide whether they should be contracted outside of the district
or provided by district personnel.
•If there is a decision to make these services available then the school
district will also have to determine what the curriculum will involve.
•If district personnel conduct the classes then the district must evaluate
the degree of liability it may incur for the instruction it gives.
•If the district contracts out the services, even if it does not pay for
these services, then the district must know the liability for using and thereby
endorsing the contractor's curriculum.
For example:
A school district decided to provide a metal shop class and in the course
of the class presented the facts related to making a pipe bomb. The district
instructor told the students that they should not make the bomb. Would the
district be responsible if some students took this knowledge from the
classroom and constructed a bomb, which they detonated?
Of course they would. They have instructed in the manufacture and provided
the knowledge that could produce the explosion, which would cause injury.
Now, the school district contracts out the shop class to a group that
endorses the use of pipe
bombs. Does this action create a greater degree of responsibility because the
district is aware of
the agenda of the group?
Yes, the knowledge of the contractor's agenda heightens the degree of
liability because the district knowingly exposed their students to this
instruction and therefore the agenda. What the students do with the
information was proximately caused by the referral to the contractor and the
endorsement that referral entails.
2.IF THE DISTRICT WANTS THE PROGRAM TO BE PRESENTED BY DISTRICT PERSONNEL,
WHAT RISKS MUST BE ADDRESSED?
The district must undertake to review the qualifications of the instructors
for the program. In the course of that evaluation the district must be certain
that:
•All instructors are fully aware of the statutes regarding the mandatory
reporting of child abuse.
•All instructors are competent to identify the symptoms of sexual activity
and understand the reporting protocol once their symptoms are identified. These
symptoms include but are not limited to:
1. Seeking birth control information or paraphernalia
2. Treatment for a sexually transmitted disease
3. Pregnancy testing
4. An abortion or referral for abortion services
•All instructors are aware of the liability for the failure to report the
abuse.
•All instructors are provided with an instructional program by competent
counsel as to the liability of the district for the failure of the instructors
to properly perform their duties.
In the course of providing a program regarding family planning the district
must perform a cost analysis for the training and supervision necessary to
implement this program. Along with the out of pocket costs related to the
personnel issues there is a need to factor in the cost of insuring against
losses. These losses may be precipitated by failure of the district's employees
to comply with the state law and/or the policies of the district.
The district's policies and procedures identify a standard of performance
that will establish a compliance measurement, which determines the liability of
the district. Once such a program is operational all employees must strictly
adhere to the standards of performance.
Policy Proposal:
•Establish a person singularly responsible to insure district wide compliance
with all pertinent state laws.
•Review all compliance standards with your insurance underwriter to
incorporate all measures necessary to minimize the liability of the district.
•Maintain a program of instructor training that updates the various program
presenters with the criterion they must meet in order to satisfy the curriculum
as well as the policies and practices of the district as related to state laws
regarding the reporting of abuse.
•Monitor the performance of each instructor, agent, servant or employee of
the district, as to the conduct of instruction and the evaluation of student
activity.
•Incorporate a protocol with local law enforcement and child protection
authorities that provides an immediate response to underage children's sexual
activity.
3. IF THE DISTRICT WANTS TO CONTRACT THESE PROGRAMS TO A FAMILY PLANNING
SERVICE PROVIDER, A RISK ANALYSIS MUST BE PERFORMED.
The district is ultimately responsible for anything that has an impact on the
students within the context of providing education or extracurricular
activities. Within the context of this responsibility the district must evaluate
the performance of its agents, servants or employees.
The contracting of an entity to make a presentation to the students does not
necessarily hinge on the payment for these services. So long as consideration
has been exchanged between the parties in any form the contractor acts on behalf
of the district. The consideration the district receives comes in the form of
services (classes or instruction to the students), while the contractor is
afforded the opportunity to advertise services and thus build its client base.
The district should therefore review the contractor that provides family
planning services in the same light as any other contractor to the district, but
in addition should scrutinize the contractor even more carefully because of the
contact with the children.
Policy Proposal:
• Review the policies and practices of the organization to determine:
1. Their procedures for compliance with state reporting statutes
2. Their policies and practices to determine the sexual activity of underage
children for the purpose of reporting
3. The relationship between the organization and child protection agencies
as well as the local law enforcement authorities.
•Verify the organization's ability to insure or indemnify the district
against a damage award resulting from the organization's contact with the
children of the district.
•Establish a routine for the monitoring of the organization's activities as
it relates to the children of the district.
•Review the records of the organization in order to verify by documentation
all of the above.
4. ULTIMATELY THE EVALUATION OF THE PROGRAM MUST ADDRESS THE POTENTIAL
LIABILITY OF THE DISTRICT FOR THE PROGRAM'S IMPLEMENTATION.
The basis for determining the liability of an entity (person, or
organization) for any damages (injury) suffered is based on the duty that entity
has to the person or persons injured.
The formula for a personal injury lawsuit is to:
•Identify all those who have a legal duty to the victim.
•Determine whether the duties have been met.
•If a duty has not been met, was the injury to the victim proximately the
result of the failure to meet that duty?
•If the proximate cause of the injury was a result of the failure to meet the
duty, what percentage of responsibility does the entity with the legal duty to
the victim have for the damages caused by the injury?
•If a duty that exists has not been met and the failure has resulted in
injury, the entity that failed will be sued for the resulting damages.
Policy Proposal:
Establish a loss prevention program that insures against events that will
establish the liability of the district. If any of the following events occurs
regardless of the program presenter the district is exposed to being responsible
for the injury to the child:
•Instruction encouraging the sexual activity of underage children or the
promotion of sexual activity with adults (either actively or passively).
•A failure to report the reasonable suspicion of abuse that comes from the
fact that an underage child is sexually active.
•A mandatory reporter encouraging an underage child to conceal his or her
sexual activity from the authorities or other mandated reporters.
•Coaching an underage child in the manner and means by which the child can
conceal his or her sexual activity.
•Any falsification of official documents for the purpose of concealing an
underage child's sexual activity.
•Any conduct that is designed to avoid a policy or practice of the district
for parental involvement when an underage child is reasonably suspected of being
sexually active.
•Any conduct that contravenes the state statutes (where applicable) for
parental involvement when underage children are sexually active.
•Any provision of advice, counsel or assistance to underage children to leave
the jurisdiction of the courts in which the district is located in order to
procure the means by which they may conceal their sexual activity.
•Any referral of an underage child to an individual, clinic or organization
which results in an injury, death or sexual assault of the child.
