Teacher liability limits won't protect students.

When President Bush was candidate Bush, he called for limits on liability during a discussion of education policy in his third presidential debate with Al Gore.

"I support a teacher liability act at the federal level," he said in October. "It says if a teacher or principal upholds reasonable standards of classroom discipline, they can't be sued.... I think parents will be more involved with education when they know their children's classrooms are safe and secure."

Along comes S.316, the Paul D. Coverdell Teacher Liability Protection Act of 2001, introduced on February 13. The bill's chief sponsor, Sen. Mitch McConnell (R-Ky.) named it in honor of the late Sen. Paul Coverdell (R-Ga.), who introduced similar teacher protection legislation in the 106th Congress. He died in office last year. Coverdell's bill was referred to the Senate Judiciary Committee, where it foundered.

On introducing the new bill, McConnell said, "The Teacher Liability Protection Act builds upon the good work Congress began in 1997, when it enacted the [Coverdell-sponsored] Volunteer Protection Act.... Now we need to extend similar liability protections to our nation's teachers, principals, and education professionals."

The Volunteer Protection Act, now Public Law 105-19, was signed into law by former President Clinton on June 18, 1997.

Lower standard

There is a vast difference between the 1997 act and the proposed bill: The Volunteer Protection Act protects volunteers; the Teacher Liability Protection Act would protect professionals. Teachers are not volunteers. They are trained, paid professionals whose duty it is to provide a certain standard of care to their students. If anything, one would think Congress, in its push for classroom accountability, would want to raise the standard of care required of those responsible for educating our nation's children.

The Teacher Liability Protection Act would lower the standard by raising the threshold of misconduct that a teacher, principal, school administrator, or other education professional would have to reach before being held liable for his or her actions.

Consider the language of [sections]15004 of the bill:

   [N]o teacher in a school shall be liable for harm caused by an act or
   omission of the teacher on behalf of the school if the harm was not caused
   by willful or criminal misconduct, gross negligence, reckless misconduct,
   or a conscious, flagrant indifference to the rights or safety of the
   individual harmed by the teacher.

"Willful," "gross negligence," "reckless," and "flagrant" are terms typically found in language establishing state law standards for punitive damages awards, not standards for establishing liability. In effect, the bill says, proof of negligence will be insufficient to hold an educational professional accountable for injury.

The act does not pit trial lawyers against teachers. In fact, the American Federation of Teachers (AFT) and the National Education Association (NEA) believe the act is unnecessary.

"[T]his issue is already covered by state law," said Diane Shust, NEA chief lobbyist, in the February 12 issue of Legal Times. The article says that "the NEA doesn't believe suits against teachers and school officials are a widespread problem requiring a federal law."

In fact, public schools are already shielded from liability by sovereign immunity. Every state has a law that protects teachers and school officials from liability for negligence, including negligent supervision.

David Strom, the AFT's in-house counsel, said, "Just about every state has indemnification and immunity protections for teachers who are sued for actions taken on the job. Typically, the school district agrees to defend the teacher in such actions, provided they were acting within the scope of their duties. There is a real question as to whether this is an appropriate subject for federal legislation."

It is not clear what problem the proponents of the Teacher Liability Protection Act are attempting to solve. A review of cases over the past decade reveals that lawsuits against teachers are rare and that most of those filed are based on negligent supervision resulting in one student's assaulting or injuring another.

However, these cases are for the most part unsuccessful, because as a matter of law teachers are not liable for a student's unforeseeable assault on another student. (See, e.g., Boyer v. Jablonski, 435 N.E.2d 436 (Ohio Ct. App. 1980).)

Education president?

Bush is eager to preempt state law in this area, despite having publicly called for a "new federalism" to empower states and reduce federal regulation. On February 26, according to the Reuters news service, he told the National Governors Association that "the framers of the Constitution did not believe in an all-knowing, all-powerful federal government. They believed that our freedom is best preserved when power is dispersed."

George W. Bush wants to be the "education president." He wants children to learn, and he wants them to do so in a safe environment. He believes a safe environment will result if teachers are provided with liability protection. If the president truly were concerned for students' safety, he would give the Teacher Liability Protection Act a failing grade.

Mixed signals

President Bush is eager to preempt state law, despite having called for a "new federalism" to empower states and reduce federal regulation.

Kristin Loiacono is media relations coordinator for ATLA.