5. Mandated Notification of Law Enforcement

California Education Code § 48902 (“Notification of law enforcement authorities; liability for making report; failure to notify; penalty”), with language referencing California Penal Code 245, frankly define’s the principal’s reporting obligations when an assault has occurred. Education Code § 48902 must be viewed as an expression of the legislature’s intent to notify law enforcement whenever a student has been assaulted, battered, and traumatized by a deadly force beating of the kind visited upon the student-victim by the student-perpetrator. This statute (Education Code § 48902) reads: “(a) The principal of a school or the principal’s designee shall, prior to the suspension or expulsion of any pupil notify the appropriate law enforcement authorities of the county or city in which the school is situated, of any acts of the student which may violate § 245 of the Penal Code.” California Penal Code 245 states:

245. (a) (1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.


6. Preventive Detention

One U.S. Supreme Court decision has preventive detention as its purpose and upholds the right of a judge to detain a suspect until trial because the suspect is a danger to others or self. The Court found in Schall v. Martin (1984) that it was legal for a student to be detained for the protection of self and others. (104 S.Ct. 2403; 1984.)

California Penal Code § 628.2 provides that the principal of each school submit to the superintendent of his district a complete report of crimes committed on school grounds.

The principal failed to request the detainment of the student-perpetrator by the police officer assigned to the school (the principal could even have summoned other law enforcement) despite the perpetrator’s expellable offense of assault and battery that rendered him a danger to the campus at large. Moreover, the principal’s failure to exercise due diligence in the gathering of evidence, and his failure to forward any resultant reports to the superintendent of the school district, was both dereliction of duty and a violation of law.


7. Standard of Care and Duty to Protect

In Hoff v. Vacaville Unified School District (1997) (68 Cal.Rptr. 2d 920), the Court concluded that the status of the victim made no difference and that the duty of supervision protects nonstudents as well as students.

The principal failed in his duty to protect the student-victim.

The standard of care imposed on school authorities in exercising their supervisorial responsibilities is the degree of care that a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances. Pirkle v. Oakdale Union School District (1953) (Sac. No. 6183. 40 Cal.2d 207.)

Having affirmed his knowledge about the incidents of heated verbal exchanges and shouting matches between the perpetrator and victim, the principal failed to take precautionary and preventive measures that his peers and professional colleagues in other school districts employ as standard procedures. These include but are not limited to: (1) “Safety Net Program” that functions like an in-school suspension program in which students have the opportunity to receive counseling, behavior monitoring, and coursework; (2) In-School Suspension Program: This is a tried-and-true disciplinary program used by school districts since the 1970’s. It has more of an after-the-fact disciplinary component than “Safety Net,” yet also allows for students to complete coursework and keep current academically; (3) Counseling: Principals, relying on “campus intelligence,” provided by other students, have successfully taken at-risk students aside and talked frankly to them about the costs and consequences of fighting and breaking school rules; (4) Behavior Contracts: In tandem with either frank discussions or counseling about the student’s infractions, the student is presented with a specific set of behavioral standards and conditions, tailor-made to fit his infractions. He agrees, in writing, to comply with these conditions and attests to having been advised of the consequences for violating the contract; and (5) Parent Conferences: Like the aforementioned counseling, this, when used, has often deterred negative behavior and/or prevented a crisis, when “campus intelligence” informed a principal that such might have occurred. Inasmuch as the principal failed to document his post-altercation interviews of witnesses, it is reasonable to question whether and how he availed himself of prevention and intervention strategies, of the kind mentioned above, or others at his disposal.


8. Lack of or Ineffective Supervision

Either a total lack of supervision or ineffective supervision may constitute deficient ordinary care on the part of those responsible for student supervision. (Dailey v. Los Angeles Unified School District supra.) In the Dailey case, a student fractured his skull when he fell when several boys started to “slap box” while walking to the gymnasium during the lunch hour. The boy died and his parents sued, alleging negligent supervision. The evidence at trial revealed that the head of the Physical Education Department had not assigned a staff member to supervising duty. The “slap boxing” contest had attracted some 30 spectators but the teachers had failed to hear the noise due to “talking on the telephone,” “working on lesson plans” and “eating lunch.” The Court held the school district liable for its employees’ negligence.

By failing to act on reasonable suspicion (campus rumor) that an altercation between the perpetrator and victim might occur, and by downgrading the level of severity of the major and severe assault upon the victim, the principal and other administrators at the high school also failed to exercise total supervision, which fact predicated a dangerously negligent situation in the student parking lot.

In Lucas v. Fresno Unified School District (1993) 14 Cal. App. 4^th 866, a 10-year old student watched a group of students throwing dirt clods at one another during recess. He saw approximately 100 clods thrown before he joined in the fun. He had thrown only two clods when, unfortunately, he was hit in the eye with a clod. The parents sued and the district responded by claiming “assumption of risk” as a defense, that is, the child assumed the risk when he decided to play the game. The Court rejected the defense and decided the case in the pupil’s favor based on the duty to supervise. The Court stated:

The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties….Supervision during recess and lunch periods is required in part, so that may be maintained and student conduct regulated. Such regulation is necessary precisely because of the commonly known tendency of students to engage in aggressive and impulsive behavior which exposes them and their peers to the risk of serious physical harm.

The high school’s administrators’ assertion that the victim had opportunities to avoid his perpetrator yet chose none of them, is the same sort of indefensible and court-rejected “assumption of risk” claim noted above.

It is a new day in public school administration, and school administrators must recognize that, in our post-Columbine and post-9/11 climates, parents are holding school districts directly responsible for ensuring the perpetual safe-keeping and welfare of their children. In the foregoing case, the victim-student and his mother successfully sued the school district for a seven-figure sum. In these parents’ minds, no damage award of any size could ever compensate them for the school-based violent deaths of or injuries to their children. Television news reporters, amid horrifying film footage, have commented on the tragic irony of children carrying lunch bags to school only to be later carried away themselves in body bags. Many are the school districts and school administrators who belatedly realize that negligence, indifference, breach of care, and dereliction of duty precipitate or catalyze a dangerous campus environment. Sadly, they will find themselves virtually defenseless against, and certainly shame-faced before, aggrieved and injured plaintiffs suing them for financial damages in a court of law. Damage awards are frequently substantial in these kinds of cases. The meaning for school officials should be crystal clear: Errors and omissions in school safety can cost their school districts staggering sums and derail their own  careers!

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Dr. James E. Shaw is the former Director of Child Welfare for the Norwalk La Mirada Unified School District (Southern California), and the former director of the Truancy Court at the  Norwalk Superior Court. He is the author of the media-heralded and nationally-acclaimed book, Jack and  Jill, Why They Kill, and the B.R.A.V.E. (“Be Resilient Avoid Violence Everywhere”) violence education curriculum. His forthcoming book is GANGrene: Youth Terrorism USA. A  Superior Court-certified Expert Witness, he works for attorneys, on behalf of plaintiffs or defendants, in civil and criminal matters. Dr. Shaw is an associate member (No. 63568504) of the American Bar Association and the National Council of Juvenile and Family Court Judges. He can be contacted at: (310) 678-6950 or (310) 649-6151, and via email at: courtexpert1@sbcglobal.net.