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Civil vs. Criminal Activity
3/1/2018
Carolyn Stone, Ed.D.
Thursday March 01, 2018
by: Carolyn Stone, Ed.D.

Section: Inside Insight


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School counselors who find themselves in legal difficulty, which is a fortunate rarity, most frequently are defending themselves in a negligence suit or in a professional practice hearing in which their certificate or job is in question because they did not adhere to school board policy or applicable laws. Ideally all appropriate topics will be included in a legal and ethical presentation, but if time is limited the presentation should focus on negligence cases and professional practice or administrative hearings as school counselors rarely commit a crime in the course of doing their jobs.

Because we live and work in a litigious society, school counselors need to know the principles of law as established by court cases. To the great credit of the profession, school counselors have rarely been the subject of court cases, and even when they are defendants the courts are reasonable in understanding the educator’s world. “The outcomes of student suits, which are of primary concern to school counselors, have shifted significantly further in favor of school district defendants” (P.A. Zirkel, personal communication, Dec. 1, 2008). This reality may provide little comfort since the emotional and financial burden involved in defending against a lawsuit can be substantial.

Constitutional law involves two major categories: criminal law and civil law. Negligence falls under civil law. A criminal wrong is a crime against society as defined by state, local or federal laws. The degree of the crime can be categorized as either a felony or a misdemeanor. Recently an Ohio school counselor was charged with a felony for having sex with a 15-year-old student, which is clearly against the law, and sentenced to four and a half years in prison. However, school counselors can find themselves at the wrong end of a civil lawsuit even if they haven’t violated any laws.

A civil case is a wrong against another person that causes physical, emotional or monetary damage and for which the plaintiffs can seek compensation. An individual can be exonerated of a crime yet be found guilty of breaching the plaintiff’s individual rights. An example of this is O.J. Simpson’s civil trial. Civil cases represent a different power than criminal cases.

In a criminal case the person is tried by the state, and the standard to determine guilt is beyond a reasonable doubt. A civil trial pits individuals (defendants) against individuals (plaintiffs) who believe they were wronged, and in this case Fred Goldman, the father of murder victim Ron Goldman, sued O.J. Simpson.

Civil cases require only a preponderance of evidence and not beyond a reasonable doubt; the lower standard is allowed because the person is usually suing for monetary damages and not for the defendant to lose his or her freedom. Preponderance of evidence only has to be above 50 percent, and, therefore, Fred Goldman prevailed in his lawsuit.

As a general legal principle, according to William Prosser in “Handbook of the Law of Torts,” all four of the following elements must be present for civil liability to be proven:

Duty: The school counselor owes a duty to a student or a student’s parent/guardian.

Breach: The school counselor breaches the duty owed.

Injury: The student or parent/guardian suffers an injury or damages, and an assessment is made.

Causal connection: There is sufficient legal causal connection between the breach of duty and the injury.

Most civil cases against school counselors charge negligence, with the four elements being met because the school counselor neglected to perform a duty.

Duty: Duty requires the establishment of a relationship whereby the defendant owes the plaintiff a duty to act reasonably. A school counselor who sponsors the foreign exchange club and takes the members to the beach for their end-of-the-year party is acting in loco parentis. The school counselor owes a duty if a student enters the water and starts to drown, whereas a passerby does not in most states even if that bystander is Ryan Lochte, Michael Phelps or Mark Spitz. The stronger the duty, the greater the legal responsibility and concurrent legal liability if something goes wrong.

Breach: The judgment as to whether or not a breach has occurred centers on the issue of reasonability. It is difficult to prove negligence against school counselors as it is not easy to prove a school counselor deviated from accepted practices or caused the harm to the student.

Injury: Assessment refers to determining monetary damages needed to compensate for the harm an individual suffers, such as injury, lost scholarship or death. Nominal damages can be awarded in cases where actual cost cannot be determined. Punitive damages are awarded in cases where the intent is to punish the defendant.

Causal connection: There must be a causal connection between the school counselor’s breach of duty and the injury suffered by the student. Liability in a negligence case hinges on causation. Proximate cause refers to the foreseeability of harm or whether the school counselor could have predicted the harm. Using the example of the educator who takes a student to the beach, a harm to a student must be caused because this school counselor didn’t meet a duty to keep students safe.

Standard of Care
To prove malpractice, there must be a comparison between the acceptable standard of care for the school counseling profession and the specific act or conduct claimed to be malpractice. The testimony of an expert witness well-versed in school counseling often helps determine whether or not the defendant met the professional standard of care.

In addition to expert witnesses, the standard of care is established in a variety of other ways, including school board policies and ethical standards. Using standard of care as the framework, the court will decide if the school counselor acted as the reasonably competent professional would have acted under the same or similar circumstances.

Historically, school districts have had governmental immunity or protection from civil liability. In most states, individual employees are protected from personal liability for negligence, malpractice or civil liability if they are not acting in a willful or wanton way. Most states have legislation declaring that public employers must defend, indemnify and hold harmless any employee who is named in a civil suit for an act of omission arising out of the employee’s job. For example, Montana statute 2-9-305, regarding immunization, defense and indemnification of employees states in part:

1. It is the purpose of this section to provide for the immunization, defense and indemnification of public officers and employees civilly sued for their actions taken within the course and scope of their employment.

2. In any noncriminal action brought against any employee of a state … or other governmental entity for a negligent act, error or omission … committed while acting within the course and scope of the employee’s office or employment, the governmental entity employer … shall defend the action on behalf of the employee and indemnify the employee.

According to the Montana statute and the governmental immunity statute of many other states, the employee cannot be fired because of an unintentional act that has harmful effects. This obligation does not extend to criminal acts or acts where the employee is intentionally, willfully harmful. Know your state’s statutes, as they vary by state and are constantly changing.

Practice vs. Care
School counselors or other educators sometimes perpetuate a standard of practice that does not meet the standard of care for the school counseling profession. Determining a student is not suicidal and deciding that parents do not need to be called might be a school counseling department’s standard of practice, but it is in no way the standard of care for the profession.

Standard of care is a legal process related to negligence. Standard of care for the school counseling profession is defined by state departments of education, certification or licensure guidelines, school board policies, case law, experts in the field, state/federal/local statutes and the ASCA Ethical Standards for School Counselors. Standard of care answers the question as to whether the school counselor behaved as his/her professional peers would have behaved given the same or similar circumstances.

Sometimes standard of practice is used synonymously with standard of care, but there is actually a distinction. Whereas standard of care is what the competent school counselor would do, standard of practice could be a faulty approach that has been perpetuated so long as to make it commonplace and replicated although it flies in the face of standard of care. For example, the practice for decades at a large New York City high school was that only the top five students in each graduating class were allowed to apply to an Ivy League school. A student who was 11 out of 400 seniors was denied an opportunity to apply to Harvard. The school’s standard of practice did not represent the school counseling standard of care and was only changed when the press, government officials and advocacy groups highlighted the inequity and brought pressure from the public to eliminate the practice.

ASCA spends a considerable amount of time answering ethical and legal inquiries from members. Many of the inquiries are standards of practice dilemmas that do not meet the standard of care for the profession.
 
Carolyn Stone, Ed.D., is a professor at the University of North Florida and the chair of ASCA’s Ethics Committee. She can be reached at cstone@unf.edu. To submit your questions for a future column, e-mail them to ethics@schoolcounselor.org.