Liability Concerns in School-Sponsored Events

Liability is the legal name given to obligations that a school may be forced to meet as a result of problems that occur with their students. These obligations often pertain to ensuring the safety and wellbeing of students engaged in school activities, particularly when those activities occur after school. Schools take on these obligations when they sponsor extracurricular activities of any description, and when problems occur during those extracurricular events, the obligation to be liable can lead to legal complications.
Take the example of a child playing on a junior high basketball team. The team engages in practice every day after school. At one practice, the child falls and injures their ankle while falling. For some families, the situation may be considered an accident with no blame on anyone, and they may forgo any kind of legal action. For others – especially if the child ends up missing school due to their injury , or may need surgery—there may be a sense that someone else is responsible. In that sense, the family may wish to pursue a lawsuit. However, schools are required to provide many extracurricular activities, and as the source of those programs, they are afforded some protection under the law.
So how does this work? For starters, when injuries like the one mentioned above occur, schools may argue that they are not liable. Liability requires judges and juries to determine who bears responsibility for the situation. If the basketball coach instructed his players to play properly and hurt-free, the school may not be liable. If the coach told the player to start practicing while injured, the school may be liable. If there were no proper first-aid services on sight, the school may be liable. Because the outcomes can vary, schools can avoid liability if they can demonstrate that they provided a safe environment.

The Issue of Waivers and Liability Releases

One of the most common ways educational institutions try to mitigate the risk of liability for extracurricular risks is through the use of consent forms and waivers. However, the law does impose limitations on their use and effectiveness, and educational institutions must be aware of these in order to properly utilize them. Both consent forms and waivers are documents that parents sign for their children and students sign for themselves (in the case of age of majority).
Consent forms are used by educational institutions, generally at the beginning of the school year, to inform parents of potentially hazardous activities in which the institution intends their children to participate, usually during the after-school hours. The consent forms are used not only to provide parental consent but also to guard against lawsuits if an injury occurs during one of the listed activities. Consent forms normally provide participants with a description of the activity, the hazards involved, and assume liability on behalf of the parents or child. Many consent forms contain language indicating that each signatory assumes full responsibility for any injuries that occur. However, there is a body of law that suggests that these forms are not effective as they relate to minors and are limited in scope concerning adults.
Waiver forms are used by educational institutions to specifically remove liability from their shoulders should an injury occur. In other words, a waiver provides that an individual will relinquish the right to sue the institution if injured while participating in an activity or the former employer or other specified organization for a prior injury. Typically, the institution will ask parents or students to sign a waiver in order to participate in a particular program in order to reduce their liability. However, in many jurisdictions, a waiver is only effective when signed by an adult. Courts have invalidated waivers signed on behalf of minors and those that do not include clear and conspicuous language.

Student Rights and Legal Protections in Extracurriculars

While the majority of student rights issues occur in the classroom setting, schools have broad legal authority to create and enforce rules relating to student participation in extracurricular activities. Evolving jurisprudence has opened the door to new inquiries in this context, including: Discrimination: Just as students are protected from discrimination in the classroom, they are protected from discrimination during extracurricular activities. For example, a high school wrestling club prohibited certain hairstyles in the interest of safety, but also banned students from wearing their hair in the traditional fashion for their cultural backgrounds. The court held that the school had created a facially neutral policy that had a disparate impact on minority students, and that the school could not present any regulatory or safety justification for the policy. Freedom of Expression: Student clubs and groups are protected from unwarranted censorship, even at the high school level. The judicial inquiry again focuses on whether the school’s policy or procedures are "facially neutral," are applied without regard to the messages promoted by the expressive activity, and are narrowly tailored. In one case involving an art club, students wished to sell buttons to raise funds that would be donated to a charity. School officials objected to the designs, claiming that they were unprofessional, unoriginal, and did not show adequate artistic skills. The court disagreed, holding that the school’s policy was a broad and subjective limit on speech that could only be justified if "narrowly tailored" to a specific threat to school order or discipline. Privacy: Privacy rights in the educational context include a wealth of considerations including the scope of the right to be free from search and seizure, privacy of academic records, and right to be free from intrusive or unnecessary psychological testing. In one case, a federally funded drug monitoring program called Quest offered free voluntary drug testing to students who signed up via waivers, but required students to answer questions about their sleep patterns. The court held that requiring students to voluntarily relinquish such information, as well as to participate in a voluntary program, could not be supported as a valid educational purpose that outweighed the intrusion.

Regulatory Compliance and Safety Standards

Beyond merely requiring parent permission for students to participate in extracurricular activities, these activities are subject to safety regulations imposed by both state law and institutional policy. For example, some states prohibit students from participating in athletics until the student has gone through a physical examination, often within the past 12 months. Some states also require a health history and parental permission forms upon which the parent certifies that the student has no known medical conditions, no chronic illnesses, and is fit for participation. Adherence to such requirements is essential—if a student sustains an injury during an activity and the school cannot establish that the student was properly examined prior to participation, then the school may well be found liable for student injuries on summary judgment. In addition to these tri-level screening requirements, other safety regulations apply to specific types of extracurricular activities, especially athletics. For example, under the Concussion Management Guidelines and Return to Play protocol of all member schools, all athletes must undergo pre-participation baseline concussion testing, and return-to-play protocols must be implemented, followed, and documented before an athlete may return to play after a head injury or concussion. Other sports-specific requirements apply to safety standards and procedures for equipment, supervision, and training for both coaches and athletes.

Legal Ramifications of Bullying and Harassment

Bullying and harassment are both prohibited in Louisiana’s public schools through the provisions of La. R.S. 17:416.13. These actions have also been the subject of guidance from the U.S. Office of Civil Rights through the Dear Colleague letters on harassment and bullying and Title IX. While most discussion of harassment and bullying in schools may be considered acts within the purview of a school’s responsibility for the safety of its students while they are at school, there is no such limitation under Louisiana law.
The term "bullying" as used in La. R.S. 17:416.13 has been generally understood to mean an intentional gesture or written, electronic, or physical act or an intentional verbal or written communication, including but not limited to using disparaging language about a student or his or her family, that is severe or pervasive as to have the effect of either of the following:
(i) Hitting or threatening to hit a student or a school employee with any object that results in or has the potential to result in bodily injury to the student or school employee.
(ii) Causing substantial emotional distress to a student through severe, persistent, or pervasive verbal or written communication, including electronic communication, which may include stalking.
As described by Louisiana law, bullying requires some form of intentional gesture and substantial emotional distress. Bullying can involve intentional physical acts such as hitting or threatening to hit a student . It can also involve intentional verbal or written communication including disparaging language about a student or his family. The question of whether bullying occurred can also be impacted by the existence of technology and whether it contains disparaging language or results in substantial emotional distress to the student who is the target of the communication.
Harassment is defined as any intentional, threatening, written, verbal, or physical act including electronic communication against a student that has the effect of substantially interfering with a student’s education, regardless of intent. The requirement that harassment negatively impact a student’s education is not required for bullying. Bullying focuses on intentional effort to cause substantial emotional distress, while harassment focuses on intentional acts that have a substantial interference with a student’s education such as removing a student from a classroom in the middle of their class day or interfering with their ability to participate in scheduled activities.
Students have a right to be in a safe school environment free of bullying and harassment. Louisiana schools must take responsibility for what happens on school property, school buses, school grounds, and at school-sponsored events which include extracurricular activities. The manifestation of behaviors prohibited by La. R.S. 17:416.13 can be found on campus facilities as well as in transportation to and from activities while organized and supervised by the school. If a school fails to take action, it can face great liability, including administrative and civil penalties.

The Legal Responsibilities of Coaches and Advisors

The legal obligations of coaches and advisors overseeing extracurricular activities are largely the same as they are for any school employee supervising students on school property or at school-sponsored events. That is, a coach or advisor must be familiar with and follow district policies and procedures related to his or her job. He or she must monitor students under his or her supervision to prevent and address student misconduct, including student bullying and harassment. If he or she fails to do so, then he or she may be personally liable for any consequences of the student’s misconduct. In addition, many school districts have adopted training requirements for coaches and advisors. For example, it is common for coaches to undergo CPR and First Aid training. Many districts also require coaches and advisors to take training on child abuse reporting. Other training may also be required. Little legal liability attaches to a coach or advisor who has taken required training. However, failure to take required training may result in personal liability for any consequence of the district employee’s actions related to the training being completed.

Insurance Coverage for Extracurricular Programs

Insurance considerations are a critical part of planning for extracurricular activities. Fortunately, the general liability policy purchased by the school district usually provides for some coverage for extracurricular activities. Insurance is available for both bodily injury liability and for property damage liability. It is the property damage liability factor that is usually the part of the coverage that school districts tend to overlook. Both types of insurance coverage for these types of miscellaneous classes and activities are crucial if accidents or injuries arise from these activities.
School districts may purchase accident insurance to cover pupils for injuries suffered from a specific accident. The most common use of this type of insurance is with specific school events such as the school carnival, school dances, or concessions at athletic events. Many districts have purchased this type of insurance so that the insurance proceeds will be available to provide for medical expenses for all injured pupils who have attended those events.
To be able to receive benefits under this type of insurance, the pupil must first sign up for the insurance plan. Insurance proceeds are usually provided only for accidents resulting in total medical expenses of $100 or more. The pupil must then file a claim and provide evidence that the accident occurred while he or she was engaged in one of the specific district activities covered under this policy. That may be a problem unless specific precautions are taken to provide notice of the benefits to the parents of the pupils participating in these events.

Conflicts and Legal Cases in Out-of-Class Activities

In a case out of Virginia, a parent sued the school district over the exclusion of her child from the high school varsity tennis team when the child was not enrolled in the district’s accelerated honors tennis program. The school board argued that the policy was the result of a sound, pedagogically-based program of academics and athletics. However, the district court noted that the policy had been added after the student was enrolled in the academic program, and that there was little evidence of material differences in the academic requirements met by the students in the accelerated honors tennis program and those met by the tennis team members. The court further noted that even if the policy could be considered "reasonably calculated to allow for proper school management," it might still violate the Equal Protection Clause, particularly as the school board had pointed to no evidence of the educational impact that the policy promoted. The court granted the mother a temporary injunction pending trial to prevent the school board from preventing her daughter from competing in the varsity tennis program while simultaneously enforcing the other academic requirements that the student had already met. The court further ordered a factual hearing to determine whether the child had effective notice of the requirements.
Another notable case, which involves Louisiana’s statewide athletic association, notes that the Louisiana Court of Appeal judged a high school athletic association’s rule regarding participation in the state high school basketball tournament inequitable, declaring it contrary to Louisiana public policy. The Louisiana High School Athletic Association had created a rule that barred transfers to private schools from public schools after mid-year cutoff dates, but allowed other private school students to participate . A public high school student who wished to attend a private school filed suit when denied admission to the private school’s basketball team. Citing the public policy concerns of the Louisiana Constitution, Article I, §3, courts ruled in favor of the public school student and his private school. In another case involving the same athletic association, the Louisiana Court of Appeal upheld that same athletic association’s ruling that a player was ineligible for participating in school athletic activities because his father was related by blood to the head coach of his football team.- The court stated, "We find no authority for Plaintiff’s contention that the LHSAA rules are contrary to the express public policy of Louisiana law." Rather, the court noted that state law encourages the removal of anyone in a position of authority over his own child so as to avoid impropriety.
While a student’s right to participate in extracurricular programs has been challenged on various grounds, these challenges have faced an uphill battle in the face of the factors favoring local school boards. Courts have required school boards to produce evidence demonstrating sound pedagogical concerns to support objectivity in the extracurricular activities processes. Furthermore, the role of the court is limited to reviewing the regulations of the school board to determine if the ruling is rationally related to a legitimate state interest and to ascertain whether the decision is supported by the record. Courts have deferred to the validity and reasonableness of regulations providing students with property and rights as long as there are no facts indicating arbitrariness or discrimination.