Wednesday, May 21, 2008

Ohio School Immunity......And How Your Children Are Not Protected

Ohio schools are 100% immune from any liability if any school employee or volunteer molests your child at school, on the bus, a field trip, or anywhere on a school function. Don't believe it? Read on.

We recently argued a case in the Ohio Supreme Court on behalf of two children who were harmed by a volunteer elementary school chess coach. Unfortunately, the Ohio Legislature has given legal immunity (meaning no liability) to schools for nearly every negligent act, even when schools drop the ball and negligently fail to perform background checks on personnel and volunteers who are given custody and control of schoolchildren. The volunteer chess coach in our case was a previously convicted child molester. The school did NO background check, criminal or otherwise. Believe it or not, the case was thrown out of the court because the molestations did not occur on school property, and therefore "legal immunity" applied.

We appealed to the Ohio Supreme Court, and they agreed to hear the case. Our main argument was that it is ABSURD to interpret the law to require that the molestations occur on school property to remove the immunity when the school district took no measures to weed out a previously convicted child molester, and essentially allowed him to infiltrate an elementary school. We argued the case on April 23, 2008. You can watch the oral argument by clicking here. Below is the text of the newspaper article regarding the case........and after you read it I'll explain what happened......

Ohio Supreme Court Hears Massillon Arguments Is district liable for abuse on chess-club trip? Thursday, April 24, 2008 BY Paul E. Kostyu COLUMBUS

The chief justice of the Ohio Supreme Court wondered if a Massillon case the court heard Wednesday wasn't better left to the Legislature. Justice Thomas J. Moyer interrupted Canton attorney Brian R. Wilson as he was arguing that the Massillon Board of Education should be held liable for the actions of a volunteer who oversaw a student chess club. "It seems this is a policy argument," Moyer said. "Maybe it cries out for a change in the law." At issue is Ohio's sovereign immunity law, which says a school district is not liable for injuries to students caused by the actions of a volunteer when an after-school activity occurs outside school property.

John Smith, an unpaid volunteer, ran a chess club for students at Franklin Elementary School for several years. During a spring break trip, Smith and a school guidance counselor took several students to an out-of-state tournament. Smith sexually assaulted two of the students, ages 9 and 10. After the assaults, officials discovered Smith had a prior felony conviction for sexually molesting young children. Wilson represents the children's parents as they sued the district alleging negligence for failure to investigate Smith's background and lack of supervision at his twice-weekly club meetings. A Stark County trial court ruled the district couldn't be sued. The 5th District Court of Appeals upheld that decision, sending the families' appeal to Ohio's top court.

"This is a shining example that no law is settled until it's settled right," Wilson told the court. "If the trial and appellate courts are upheld, school districts get blanket, 100 percent immunity when school personnel harm children as long as they are off school property. It's immunity by location." Wilson said a strict interpretation of the law about location would "create an absurd result." Nicole M. Donovsky, a Columbus attorney representing the Massillon district, said the issue centers on whether the injuries to the students occurred on school grounds, and it was clear that they did not. She also said the trip to the chess tournament was not sponsored by the school and did not involve school vehicles. And the law does not require school districts to obtain background checks of volunteers. "The language (of the law) is unambiguous," she said. "It has a plain and ordinary meaning."

In an exchange with Justice Paul E. Pfeifer about possible scenarios, Donovsky said location and how it is used becomes important. The law clearly applies to activity on school property, but she said the court has to look at the government function for off-sight activities. She said because the school did not sponsor the trip, it was not a government function. She said the Legislature has the "capability of limiting the reach of a public school district's liability." A decision by the court is expected within several months. (End of article)

******************* Now, the rest of the story...........On May 16, 2008, The Supreme Court dismissed the case without explanation. Case over-- with the stroke of a pen. By dismissing the case, they simply avoided deciding the issue--which means the school district was entitled to blanket immunity. So, the upshot is that the school district and its insurance company won, and these children lost. As if that's bad enough, here's the real kicker: as it stands right now, under CURRENT Ohio law, a school district has ABSOLUTELY NO LIABILITY OR LEGAL ACCOUNTABILITY if a student is molested by a teacher, aide, cook, janitor, volunteer, or anybody else, even if the child is molested on school property,off the property, on a bus, or a field trip, for example. It gets worse: even if the school district fails to do a mandatory criminal background check on the offender, or even if it knows in fact that the employee is a pedophile and does nothing about it, or ignores or fails to investigate legitimate complaints, there is NO LIABILITY. Shocking? You bet.

How did this happen? In 2003, the insurance companies and school boards asked the Ohio Legislature for immunity from molestations in response to a 2002 Ohio Supreme Court decision known as Hubbard v. City of Canton. In that case, the Court ruled that the Canton City Schools could be sued for negligently retaining a teacher who molested two middle school students. Not pleased with this ruling, the Ohio School Boards Association, and the insurance industry, asked the Legislature to change the law and limit the schools' liability to "physical defects" on the premises (like a falling ceiling, for example). The Legislature agreed, and by changing the law to limit the schools' liability to "physical defects," it eliminated schools' liability for negligently hiring or not properly investigating school personnel who eventually harm schoolchildren. The conclusion? The insurance industry is a more powerful and persuasive lobby in Columbus than the idea of making schools accountable for failing to protect schoolchildren from sexual predators.

If this disturbs you, there's something you can do. Share this blog or what you've learned with as many people as you can, and then call or write me. I will let you know who voted for this nonsense, and maybe we can begin the process of changing it. I defy anyone to argue with a straight face that schools should not be accountable for failing to do their simple and mandatory due diligence to weed out the worst elements of society.

Finally, I do not wish to imply that I am being overly critical of teachers or schools. It goes without saying that almost all teachers are dedicated, caring, (and largely underpaid)professionals who have positively influenced more children than we can ever count. But the problem of offenders and children is a societal problem that transcends all professions, and we are frequently reminded in the newspapers about similar instances like this(in fact, since 2000, 85 Ohio teachers have had inappropriate sexual relations with students, according to a 2007 Columbus Dispatch article).

Almost all schools have a "zero tolerance" policy for fighting in schools. If your child is punched in school and fights back, he or she is suspended, even if he or she did not instigate the fight. Isn't it time schools instituted a similar policy for protecting children at school from malevolent adults, and shouldn't they be legally accountable when they drop the ball? And should we hold schools to the same stringent standards our children are held to when it comes to schools protecting our children from some of the worst elements of society? Think about it: your kid gets punched, defends himself, and is suspended for it. But if a school district takes no measures to protect your child from a child molester, who infiltrates the school and harms your child, the district gets a free pass, known as "immunity." It's head shaking to say the least.

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