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Protection |
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The
Truth about the Teacher Protection Act The
No Child Left Behind Act, signed into law by President Bush on January 8, 2002,
includes a section called the “Paul D. Coverdell Teacher Protection Act of
2001.” The Teacher Protection Act
(“TPA”), however, is really a misnomer because, in point of fact, it doesn't
protect teachers from much of anything. The
TPA purports to protect teachers and other school employees from lawsuits filed
by students and their parents for injuries allegedly caused by the employee
while attempting to discipline students or to maintain order in the classroom or
the school. Some
politicians have claimed that this new law means that school employees no longer
need to have liability insurance, one of the benefits of NEA membership.
That is not true. In
fact, the statute is so narrowly drawn and rife with exceptions, that—in
practical terms—it affords school employees almost no real protection from
lawsuits. Equally important, it
provides no funding to help school employees pay for defending against even
meritless lawsuits. The Questions
and Answers that follow are intended to clear up any such misconceptions and to
more fully explain what protections from liability the TPA does and does not
provide. Question.
What does the Teacher Protection Act actually say? Answer.
The TPA says that K-12 school employees are immune from liability for
injuring a student, but only if the injury occurs while the employee is
engaged in "efforts to control, discipline, expel, or suspend a student or
maintain order or control in the classroom or school." Q. Does
the TPA protect me from other kinds of lawsuits that students or their parents
might file against me? A.
No. The TPA is limited only
to the narrow category of cases in which the student's injury occurs while the
employee is attempting to discipline a student or to maintain order in the
classroom or school. Importantly,
the TPA offers no protection
from the run-of-the-mill cases in which employees are sued for negligence or for
injuries their students suffer outside
of the disciplinary context. However,
the NEA Educators Employment Liability (“EEL”) Program, which is
automatically provided as part of NEA membership, does cover those kinds of
lawsuits, including attorneys' fees and civil damages up to a $1,000,000 limit*
in most cases. Q. Can
you give some examples of the kinds of lawsuits not covered by the TPA? A.
The TPA does not provide school employees with immunity or any other kind
of protection from a whole range of potential legal actions, including lawsuits
in which a student sues a teacher or school employee because the student is: ·
hurt in a playground accident, ·
injured during a chemistry lab
experiment, ·
beaten up by other students, ·
injured in shop class, ·
assaulted on a field trip, or ·
sexually harassed by his/her peers.
The
NEA EEL Program, however, would cover these types of lawsuits. Q. But,
if the student is injured while I am attempting to discipline him/her or to
maintain classroom control—such as breaking up a fight—then, under the TPA,
I can't be sued, and I don't need a lawyer, right? A.
No, not really. Nothing in the TPA prohibits students and/or their parents
from filing lawsuits against you. Even
if a court ultimately decides that you are entitled to immunity under the TPA,
you still would need to have a lawyer who will have to file an “Answer” to
the lawsuit and a Motion to Dismiss that asserts immunity under the TPA.
The TPA, of course, provides no money to reimburse school employees for
defending against even meritless lawsuits. Q. But,
if the student is injured while I am attempting to discipline him/her or to
maintain classroom control -- such as breaking up a fight -- and the student
sues me, then, under the TPA, I am immune and can't be held liable for damages,
right? A.
No, not really. The TPA contains an important exception: the employee
cannot claim immunity under TPA if the employee -- in injuring the student --
violated any “Federal, State, or local laws’ or any “civil rights law.”**
Significantly, in the vast majority of cases in which students have sued
employees for injuries arising out of disciplinary actions or altercations with
the employees (e.g., breaking up a
fight, pushing, shoving, etc.), the students claimed that the employees violated
Federal law, specifically, their Federal constitutional rights.
Simplistically
put, the courts have ruled that a school employee can use “reasonable force”
in dealing with disruptive or violent students.
But, if the student can show that the employee used “excessive
force,” then a court can rule that the employee violated the student's
constitutional rights and award money damages for whatever injuries the student
suffered. Thus, in cases of this sort—and there are plenty of them—the
employee would have no immunity under TPA.
In sum, the TPA does not afford school employees immunity, even for
disciplining students or maintaining classroom control, if the injured student
alleges, and the court or jury finds, that the employee used "excessive
force." Q. Will
the TPA protect me if I discipline a student by administering corporal
punishment? A.
Not necessarily. Even if your state or local school district allows corporal
punishment, the TPA will neither protect you from a lawsuit nor afford you
immunity from damages if the student alleges and the court or jury finds that
you used "excessive force" in administering the corporal punishment. Q. Will
the TPA protect me from criminal charges that might be brought against me for
administering corporal punishment? A.
No. Occasionally parents or
students will press criminal charges against school employees for administering
corporal punishment. The TPA does
not provide any protection from criminal charges.
The NEA EEL Program, however, will reimburse NEA members up to $35,000
for attorneys' fees incurred in defending against such criminal charges. Q. The
new law is called the “Teacher”
Protection Act; does it cover only teachers? A.
No. The term “teacher”
is defined to include: school board members, administrators, principals,
teachers, any educational professional who works in a school (e.g.,
counselor), and any “nonprofessional employee” who, as a part of his/her job
or in an emergency is called upon to “maintain discipline” or “ensure
safety” (e.g., security guard, bus driver, crossing guard, etc.). ESEA
Hotline - 866-373-ESEA
(3732) *
A few NEA state associations have opted to provide coverage for losses
exceeding $1,000,000. You
should check with your local or state association for more complete
information specific to your state. ** The NEA EEL Program provides up to $250,000
($300,000 beginning Sept. 1, 2002) to cover judgments and attorneys' fees
(combined) in cases alleging the violation of civil rights.
Again, the limit of coverage may be higher in some states.
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