Teachers’ General Duty of Custody and Control
In most discipline and control situations, a teacher's legal position is that of "in loco parentis." As traditionally formulated, California public school educators legally stand in "a position in reference to a child of that of a lawful father, assuming the office of a father and . . . discharging parental duties, although not the parent.”
Ed. Code 44087. See, e.g. Phyllis P.v. Superior Court (1986) 183 Cal.App.3d 1193, 1196 [228 Cal. Rptr. 776, 778]; but see In re William G. (1985) 40 C.3d 550, 560 [709 P.2d 1287].
Under California law, “every teacher shall enforce the course of study,…and the rules and regulations prescribed for schools." Ed. Code 44805. Teachers shall not be subject to criminal prosecution or criminal penalties for exercising, during the performance of duties, the same degree of physical control over a pupil that a parent would be legally privileged to exercise, which shall not exceed the amount of physical control reasonably necessary to maintain order, protect property, protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning. Ed. Code 44807.
California law requires every public school teacher to hold pupils to a strict account for their classroom behavior and their conduct on the way to and from school, on the playgrounds or during recess. Ed. Code 44807. Teachers are not responsible or liable for the conduct or safety of pupils while they are not on school property, unless the teacher has undertaken to provide transportation to and from school, or undertaken school activity off the campus, or otherwise assumed responsibility or liability, or has failed to exercise reasonable care. Ed. Code 44808, 87706
Reporting Suspected Child Abuse
Child abuse is an act of omission or commission that endangers or impairs a child's physical or emotional health and development. Child abuse is everyone's business. It is a valid public concern, and the responsibility to report it is not optional; it is mandatory. Educators probably have the best opportunity to identify a problem before it becomes a statistic.
The major legal responsibilities of school personnel or child care custodian are:
- To identify incidents of suspected child abuse; and
- To comply with laws (PC1166a) requiring reporting of suspected abuse to the proper authorities.
Determining whether or not the suspected abuse actually occurred is not the responsibility of the educator. Such determination and follow-up investigation will be made by a child protective agency. Again, the responsibility, by law, of the educator is to report every incident of suspected child abuse - not to substantiate the report. The duty to report child abuse is an individual duty, and no supervisor or administrator may impede or inhibit such reporting duties. Internal procedures to facilitate reporting and apprise supervisors and administrators of reports may be established.
Penal Code 11167 provides:
- A telephone report of suspected child abuse shall include the name of the person making the report, the name and location of the child, the nature and extent of the injury, and any other information, including information that led such person to suspect abuse, with a written follow-up report submitted within 36 clock hours to Child Protective Services and the local law enforcement.
- Information relevant to the incident of child abuse may also be given to an investigator from a child protective agency who is investigating the case.
- The identity of all persons who report this article shall be confidential and disclosed only by the court order or between child protective agencies or the probation department.
Immunity of Reporting Persons (Penal Code 11172a):
Persons required to report, such as educators, are not liable for civil damages nor criminal prosecution for reporting child abuse as required by law, unless it can be proven that a false report was made, and that the person knew or should have known that the report was false.
Penal Code 1172b:
Any mandated reporter who fails to report an instance of child abuse, which he or she knows to exist or reasonably suspects to exist, is guilty of a misdemeanor and is punishable by confinement in the county jail for a term not to exceed six months or by fine of not more than one thousand dollars ($1,000) or both.
Civil Liability and District Responsibility to Insure
Under GOVERNMENT CODE section 820, teachers, like all other public employees in California, are liable for injury caused by their acts or omissions to the same extent as private persons. They may be personally liable if, in the performance of their school duties, their negligent or wrongful conduct causes harm to pupils or others. Teachers face the risk of lawsuits for torts such as assault and battery, slander, libel, defamation, false arrest, and malpractice. However, GOVERNMENT CODE section 825 requires a school district to provide a defense and pay any judgment or settlement resulting from any action in the course and scope of employment.
Fortunately, teachers are afforded considerable protection by the law in the performance of their duties. School districts are required by law to insure against the personal liability of employees for loss or damage to property or damages for death or injury to any person as a result of any negligent act or omission of an employee within the scope of employment. Ed. Code 35208.
Limitations of Liability
No employee of any school district shall be responsible or liable for the conduct or safety of pupils while they are not on school property, unless the district or a specified person has undertaken to provide transportation to and from school, or undertaken school activity off the campus, or otherwise assumed responsibility or liability, or has failed to exercise reasonable care. Ed. Code 44808, 877706. In such specific undertakings, liability extends only while the pupil is or should be under the immediate and direct supervision of a district employee. Ed Code 44808.