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School Cases Moving to Federal Courts, Scholars Say

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By Mark Walsh

LAKE BUENA VISTA, FLA.--Add this to the list of legal threats facing school officials: an apparent increase in the number of federal lawsuits charging that employees' or students' constitutional rights have been violated.

That was the conclusion of several legal scholars at a meeting here late last month of the National Organization on Legal Problems of Education, which drew some 275 school administrators, education lawyers, and professors.

The convention highlighted the breadth of the legal issues that school administrators currently face: lawsuits involving such major policy questions as school finance and educational choice; an increase in special-education litigation; and everyday concerns such as the proper way to search student lockers for drugs.

Public-school officials here indicated they are increasingly concerned about legal challenges to the curriculum and about the numerous issues they face involving religion in the schools.

Now comes the increase in lawsuits filed in the federal courts over issues that in the past might have been tried as common-law torts in the state courts.

Jeffrey R. Horner, a private-practice lawyer in Houston, said more litigants are turning to the federal courts because many states have limited or partial immunity from different types of lawsuits against school districts or their officials.

The most common such suits, sometimes referred to as "constitutional torts," have been filed under Section 1983 of the Civil Rights Act of 1871, which allows for damage awards against government officials who deprive a person of their constitutional rights under "color of state law."

Section 1983 law is extremely intricate and still evolving, Mr. Homer said.

The complexity of this area was illustrated by two professors who have examined an increase in Section 1983 cases against school districts stemming from sexual abuse of pupils by school personnel.

"This is a major problem for school boards," said William D. Valente, a law professor at Villanova University. "The potential [lawsuit] targets under federal torts are much broader than under state law. I think we are in for a very rough ride with [Section] 1983."

Liable for 'Indifference'

Gail P. Sorenson, an associate professor of educational administration at the State University of New York at Albany, analyzed 51 lawsuits over a recent four-year period involving allegations of sexual abuse of students by teachers, administrators, or other school personnel.

While there were a variety of legal claims raised in the suits--from state torts to federal constitutional questions-the biggest increase has been in claims filed under Section 1983.

The courts have found that school districts generally are not responsible for the misdeeds of their employees, Ms. Serenson said, so "common-law tort situations fail students completely when it comes to sexual abuse."

This may explain the increase in suits being filed under Section 1983 in federal court, because, she explained, school boards can be found to have violated a person's rights if they act, or fail to act, "purposefully or with deliberate indifference" in their official policy. One recent case illustrates that school officials may be found liable under Section 1983 for the sexual abuse of students by an employee.

In Stoneking v. Bradford Area SchoolDistrict, a student alleged that action and inaction by school and district officials had fostered her sexual abuse by a school's band director.

The band director was not a party to the suit. The student sued school adminstrators charging that they allowed the abuse to continue over a long period of time because they had allegedly received other complaints against the employee regarding sexual abuse.

In 1989, the U.S. Court of Appeals for the Third Circuit ruled that school-board policymakers could be held liable under Section 1983 for policies that were "in deliberate indifference to actions taken by their subordinates." The court held that the principal and assistant principal were not immune from the lawsuit.

The suit was returned for a trial, but the school district later settled the case, Mr. Valente said.

Ms. Sorenson stressed that school districts should view sexual abuse of students not merely as a legal problem, but as an important policy question and devote energies to dis- cussing how to prevent it.

One of the major worries for school officials in this developing area of Section 1983 law is being held liable for inaction, not just for sexual-abuse cases but for other kinds of lawsuits as well.

"The tantalizing problem [for school districts] is where the supervisor does nothing, or he waffles," said Mr. Valente.

Mr. Homer said that a standard of conduct "amounting to callous or deliberate indifference" is required in most federal judicial circuits for a school board to be found liable for a violation of Section 1983.

He noted that a case currently before the U.S. Supreme Court may further clarify the level of conduct needed to impose Section 1983 liability on school officials.

The case, Collins v. City of Harker Heights (Case No. 90-1279), involves the death of a municipal employee in Texas, but its outcome could have a major impact on whether a school board would be liable if it acted with "deliberate indifference" to a constitutional threat to its employees or students.

The Collins case was argued before the High Court last month, and a decision is expected by next spring. (See Education Week, Nov. 13, 1991 .)

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