It’s Throwback Thursday! What about liability issues?

Mark Bernhard was a student in Kerrville ISD who was permanently injured when the roof of the Ag Barn collapsed on him. His lawsuit against the district and several of its employees ended up before the Texas Supreme Court in 1978, and now it serves as our Golden Oldie in the area of liability. In Barr v. Bernhard the Texas High Court held that neither the district, nor any of its employees would be held legally liable for Mark’s injuries.

The KISD enjoyed “sovereign immunity.” School districts in Texas are liable for personal injuries only if the injury arose from the negligent use or operation of a motor vehicle by a school employee or officer acting within the scope of employment. There was no motor vehicle involved in the collapse of the roof. It happened when a calf bumped into a pole that supported the roof.

What about the employees who were responsible for the Ag Barn? Wasn’t somebody negligent here? After all—roofs are not supposed to fall down on people.

The Court held that negligence of school employees was not relevant. We had (and still have) a statute in the Education Code that provides for “immunity” for school employees if they satisfy five criteria:

1. The person is a “professional employee” of the school district;
2. Acting within the scope of employment;
3. Exercising judgment or discretion;
4. Not using physical force in the act of disciplining a student; and
5. Not operating a motor vehicle.

So was anyone negligent? We will never know. The court said it did not matter. The statute provided immunity. That statute, largely unchanged, is now found at T.E.C. 22.0511.

That’s the situation under state law. However, school employees can be held personally liable for violations of federal law. Most often this arises in cases where the lawsuit alleges a violation of the U.S. Constitution. Consider, for example, the 5th Circuit’s 1994 decision, Doe v. Taylor ISD.

This was the first widely publicized “teacher-on-student” sex case in Texas. The suit alleged that a coach had a sexual relationship with the student, who was a minor. The student sued the district, the superintendent and the principal. The case settled out of court before a final disposition, but the settlement occurred after the 5th Circuit held that there was enough evidence of possible culpability by the principal that the case should go to trial. The principal was not charged with sexually abusing the student, but rather, with turning a blind eye to what the coach was doing. The court held open the possibility that the principal could be held personally liable for this.

School officials have a kind of “immunity” in federal cases, just as they do in the state cases. Many people mistakenly refer to this as “good faith” immunity. In fact, however, “good faith” is not the test. The test is not a subjective view into the principal’s thought process—it’s an objective standard. Did the principal violate principles of law that are “clearly established”? Did the principal, in other words, violate a student’s or employee’s rights in a way that any decent principal would know to be a violation? Thus you can act in complete, sincere good faith, and still be held personally liable for violating federally protected rights that are “clearly established.”

This means that ignorance of the law is no excuse. You are expected to keep up with legal developments. So it’s a good thing that you are a reader of Edlawdawg!


File this one under: LIABILITY