BREAKING UP STUDENT FIGHTS: MTA Division of Legal Services: Legal Opinion Series No. 1
Ann Clarke, General Counsel, Brian A. Riley, Americo A. Salini, Jr., Susan Lee Weissinger, Ira C. Fader, Sandra C. Quinn, Judith M. Neumann, Matthew D. Jones, Richard A. Mullane
What is a teacher's responsibility in responding to student fights and/or removing students who are not where they are supposed to be?
MTA members often encounter situations in which their attempts to intervene have led them to sustain injuries or be subjected to assault and battery charges by students. Public school professionals, who are usually not trained in law enforcement or physical restraint techniques, more and more frequently find themselves confronting volatile and violent students. The law does contain some requirements designed to limit school violence, and also addresses teacher liability issues. Unfortunately, however, the law does not provide specific guidance about the propriety of intervening in any given set of circumstances. Instead, each local school district should develop policies addressing its expectations of staff members in such situations.
School district policies/protocols. Student fights and other volatile situations carry physical and psychological consequences for both staff and students. Individual teachers should not have to bear the burden of making ad hoc decisions on whether to intervene or not. While hard and fast rules are not practical, both teachers and administrators would benefit from clear policies and protocols. Such guidelines would help to establish that the teacher is acting within the scope of employment in intervening or refraining from intervening -- an important element in maintaining immunity from personal liability. Moreover, guidelines will also protect teachers from possible disciplinary action by clarifying the school system's expectations.
If your school district has not promulgated such policies and protocols, you may wish to encourage the district to do so. Teacher input is essential in developing those policies and may best be secured through the collective bargaining process. Such policies and protocols ideally might include:- Guidance as to the situations and locations in which teachers would be expected to intervene, i.e., within the classroom? in the corridors? in the cafeteria? during field trips? at athletic events? in the school parking lot?
- Guidance as to what "good judgment" or "reasonable force" might entail, since those are the standards that are likely to be applied when a teacher's conduct is questioned either by administrators (if the teacher is disciplined) or by the Department of Social Services (DSS) or the courts.
- Protocols that generally apply, with suggestions about when to deviate, covering, for example, when and how a teacher should seek assistance from administrators or police, which administrator(s) to contact, and augmented communications systems to enable such contacts to be made.
- A provision that police will normally be contacted whenever a staff member has been required to intervene in a student fight. While the police might do no more than take notes and scold the students, this tends to bring home the seriousness of the situation to the students, and also provides an authoritative record of the event in case charges or claims are brought forward.
- Clear directives regarding parent contact (e.g., in which situations will parents routinely be contacted? who should initiate the contact? when? how?)
- Training or in-service programs, in which school district policies are explained and examined, perhaps in conjunction with local police.
- A provision indemnifying teachers for any personal liability they might have for "intentional" conduct, for example: "The Committee agrees that any bargaining unit member who intervenes to break up a fight under the circumstances set forth in this [policy or contract] shall be acting within the scope of his or her employment and accordingly shall be indemnified to the full extent provided under the provision of G. L. c.258, including indemnification for intentional acts in accordance with the provisions of G. L. c.258, § 9."
- A policy regarding the circumstances under which discipline might be administered to staff members.
- Guidance about the circumstances which could trigger criminal proceedings, the support school administrators and officials will provide to staff members who pursue criminal complaints or against whom criminal complaints might be filed.
- A provision obligating the school district to pay legal defense costs where a staff member becomes the subject of a criminal complaint as a result of the staff member's actions in breaking up a fight.
In the absence of a contractual or other system-wide policy, a teacher is advised to comply with a principal's directive to break up fights. A teacher's refusal to comply with such a directive could expose the teacher to discipline for insubordination, regardless of the Association's rightful argument that the directive should have been negotiated before it was implemented.
School Violence Statutes. The Education Reform Act and subsequent amendments contain some provisions designed to limit school violence. M. G. L. c.71, § 37H, "Policies relative to conduct of teachers or students; student handbooks," provides, among other things, that school districts promulgate policies pertaining to the conduct of students. Those policies must include, among other things, "disciplinary measures to be taken in cases involving the possession or use of illegal substances or weapons, the use of force, vandalism, or violation of other student's civil rights. ... .” (emphasis added). § 37H also stipulates that each school must distribute to students a student handbook
providing, among other things:(a) Any student who is found on school premises or at school-sponsored or school-related events, including athletic games, in possession of a dangerous weapon, ... or a controlled substance . . . may be subject to expulsion from the school or school district by the principal.
(b) Any student who assaults a principal, assistant principal, teacher, teacher's aide or other educational staff on school premises or at schoolsponsored or school-related events, including athletic games, may be subject to expulsion from the school or school district by the principal . . . .” M. G. L. c.71, § 37L provides, in part, that “any school department personnel shall report in writing to their immediate supervisor an incident involving a student's possession or use of a dangerous weapon on school premises at any time."
Finally, M. G. L. c.71, § 37H-1/2 permits a principal to suspend for an indeterminate period of time a student who is the subject of a felony complaint (or “felony delinquency complaint,” if the student is charged under the juvenile code), and to expel a student upon conviction or admission of guilt on felony charges.1 No other school district is required to admit the student, once expelled. When a student transfers from one school district to another, s/he must provide the district with a "complete school record," which must include any "incidents involving suspension or violation of criminal acts or any incident reports in which such student was charged with any suspended act." M. G. L. c.71, § 37L.
Liability. Could a teacher be liable for either intervening in a manner that causes injury to a student or refraining from intervening, where intervention seemed appropriate? Although nothing can prevent a student from attempting to pursue assault and battery or civil damages based upon a teacher's intervention or failure to intervene, success on such claims is unlikely, at least vis-a-vis the individual teacher.
Under M. G. L. c. 258, a teacher who unintentionally injures another person in the course of breaking up a fight would be shielded from personal liability. This is particularly true if the teacher is acting pursuant to administrative or school committee directives to intervene in such situations. The statute protects teachers from liability only if they are acting in the "scope of [their] employment." Therefore, negotiating clear policies on this subject reduces individual teacher discretion and minimizes any doubt that a particular action falls within the teacher's scope of employment.
Another statute that may pertain is M. G. L. c.71, § 37G, which forbids corporal punishment of students, but also allows a teacher (or other school employee) to use "such reasonable force as is necessary to protect pupils, other persons, and themselves from an assault by a pupil."
The reasonableness of the physical restraint applied would depend on the degree of force used, the nature of the situation, the age and physical condition of the student and teacher, and other relevant factors. A determination of reasonableness can only be made on a case by case basis.
Note that Chapter 258 does not shield teachers from personal liability for injuries they intentionally cause. Given the proviso contained in M. G. L. c.71, § 37G, however, it is our opinion that a teacher who exerts reasonable force while intervening in a student fight, but nonetheless injures a student or bystander, will be free from personal liability for any injuries thus caused. The School Committee (but not the individual teacher) may be liable for injuries that are found to have been caused by the teacher's negligence. It is becoming increasingly likely that a student may claim that a teacher's physical contact in the course of breaking up a fight amounted to assault and battery or "abuse." Abuse claims under M. G. L. c. 119, § 51A ("51A") would be investigated by DSS. Assault and battery charges would be subject to a probable cause hearing in district court. The MTA Legal Services policy entitles members to legal representation if they are confronted with either allegation. However, we believe that, if the teacher was responding to a bona fide physical altercation and otherwise behaving reasonably, it is very unlikely that charges of abuse or assault would be sustained.
Although a teacher is unlikely to be sued successfully for an "intentional tort," the Association might want to seek a contract provision indemnifying the teachers if such intervention resulted in a claim of assault and battery or sexual abuse against the teacher, as set forth in the bulleted suggestions earlier in this opinion.
Please note: The information in this document is intended to provide general guidance based on current law. The principles discussed herein do not necessarily apply to all specific fact situations. Changes in the law after the date this information was published may affect its accuracy. If questions or situations arise pertaining to the subject matter of this document, please contact your local Association president or MTA consultant.