Laws That Impact Christian School Operations
Thomas J. Cathey
ACSI
Assistant to the President
Director for Legal Legislative Issues
Foundational Issues
Pierce v. Society of Sisters of the Holy Names of Jesus and
Mary, 268 U.S. 510 (1925)
In November 1922, the voters of Oregon passed a referendum that amended the state’s
Compulsory Education Act. It essentially would require that beginning September 1, 1926,
with few exceptions, all children would have to attend the state’s public schools.
Hill Military Academy and the Society of Sisters, which maintained a Catholic school, sought
an injunction against the act alleging that they were being denied their property rights as
protected by the 14th Amendment. The Society of Sisters also protested on religious
grounds. The Fourteenth Amendment to the U.S. Constitution reads:
“No State shall deprive any person of life, liberty, or property, without due
process of law…”
Pierce v. Society of Sisters of the Holy Names of Jesus and
Mary, 268 U.S. 510 (1925)
In court the attorneys for the private schools argued that they were not contesting
the right of the state to monitor their children’s education, only its right to
absolute control of their choice of educational system.
One of the state’s attorneys went so far as to call Oregonian students “the State’s
children.”
The schools won their case before a three-judge panel of the Oregon District
Court, which granted an injunction against the Act. The defendant (the State of
Oregon) appealed the case directly to the U.S. Supreme Court which heard the
case in 1925.
Pierce v. Society of Sisters of the Holy Names of Jesus and
Mary, 268 U.S. 510 (1925)
Court Decision – Unanimous decision for parents to have a choice in which
educational institution their children will attend. The opinion stated that:
…children were not the “mere creatures of the state” and that, by its very nature, the traditional
American understanding of the term liberty prevented the state from forcing students to accept
instruction only from public schools. …this responsibility belonged to the child’s parents or
guardians, and the ability to make such a choice was a “liberty” protected by the 14 th
Amendment.
“The fundamental theory of liberty … excludes any general power of the state to
standardize its children by forcing them to accept instruction from public teachers
only.”
Takeaway Principle: Private schools have had a legal right to exist in all 50 states
since 1925.
Wisconsin vs. Yoder, 406 U.S. 205 (1972)
• Three Amish students from three different families stopped attending High
School in Wisconsin at the end of the eighth grade, all due to their parents'
religious beliefs.
• The three families were represented by Jonas Yoder (one of the fathers
involved in the case) when the case went to trial. They were convicted in
district court. Each defendant was fined the sum of five dollars. Thereafter the
Wisconsin Supreme Court found in Yoder's favor. At this point the State of
Wisconsin appealed that ruling in the U.S. Supreme Court.
Wisconsin vs. Yoder, 406 U.S. 205 (1972)
• At the U.S. Supreme Court
– State of Wisconsin argument:
1) Amish are free to worship as they please. Therefore, freedom of religion
is not abridged.
2) Insisted that religious freedom consists simply of freedom to believe
not freedom to act.
3) With reference to Freund and Ulich (Harvard) Religion in Public
Education, the mission of a public school teacher is to judge what is true
and what is false. Beliefs of specific denominations are contentions for
religious truth. Someone must judge which contentions are correct.
Wisconsin vs. Yoder, 406 U.S. 205 (1972)
•
Supreme Court Decision:
1) Secondary schooling, by exposing Amish children to worldly influences contrary
to their sincere religious beliefs and by substantially interfering with the
development of the Amish child and his/her integration into the Amish community
at a crucial adolescent stage, contravened the basic religious tenets and practices
of the Amish.
2) Since forgoing one or two years of compulsory education would not impair the
physical or mental health of children, nor result in the inability to be selfsupportive, or to discharge duties and responsibilities of citizenship or in any other
way detract from the welfare of society, the state's interest in its compulsory
attendance system was not so compelling that Amish practices had to give way.
Takeaway Principle: A parent’s fundamental right to freedom of religion
outweighs the state’s interest in educating its children. Under the Free Exercise
clause parents have a protected right to direct the upbringing and the education
of their children.
State of Ohio v. Whisner, 351 N.E. 2d 750, 768 (1976)
• In the mid 1970s, pastor Levi Whisner and several other parents at Tabernacle
Christian School in Bradford, Ohio, were prosecuted for truancy violations
because they failed to follow the state’s new Minimum Standards which
violated their truly held religious beliefs. After their conviction and a couple of
appeals, the Ohio Supreme Court issued its landmark decision in State of Ohio
v. Whisner, ruling that the pervasive Minimum Standards unduly burdened the
free exercise of religion.
State of Ohio v. Whisner, 351 N.E. 2d 750, 768 (1976)
The state court determined that the standards were "so pervasive and allencompassing that total compliance with each and every standard by a non-public
school would effectively eradicate the distinction between public and non-public
education, and thereby deprive these appellants of their traditional interest as
parents to direct the upbringing and education of their children".
Takeaway Principle: Government must not impose on private schools rules that
would “effectively eradicate the distinction” between public and private schools
and thereby deny parents their capacity to guide their children’s education.
Parent Issues
Bentley v. Trinity Christian Academy, 2008CA-000574, KY 05/29/2009
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Melissa Harp was a student in a Christian School in KY.
Students were accepted on a one-year agreement or contract.
Melissa did very well in her first year at the school.
She was invited back for her senior year.
In Feb and March, the administrator had met with Melissa and
her mother to discuss the issues of tardiness and missing classes
on test days.
• In April, she was suspended for the rest of the year for a negative
attitude toward the school and continuing her same behavior.
• She was told that she would not be allowed to return for her
senior year.
Bentley v. Trinity Christian Academy, 2008CA-000574, KY 05/29/2009
• Attorneys for Harp filed a complaint with the trial court,
“claiming denial of due process, breach of contract, libel and
slander, and invasion of privacy.”
• The school filed a motion for summary judgment and the
court granted it.
• The case was appealed to the KY Court of Appeals.
• The attorneys argued that Melissa was entitled to due process
prior to her dismissal.
• The handbook stated,
“All students are entitled to enjoy the basic rights of citizenship
recognized and protected by law for a person of their age and maturity.”
Therefore, they contended that the right to due process was a “basic
right of citizenship” and that Melissa was “entitled to the same
protections afforded public school students.”
Bentley v. Trinity Christian Academy, 2008CA-000574, KY 05/29/2009
• The court disagreed, stating,
“a private institution is not required to afford a student the same due
process as if it were a public school or any other ‘state actor.’ ”
• In the contract, the school never guaranteed the right to due
process.
• In the handbook, it stated,
“major discipline problems are defined as those which cause substantial
disruption of the educational process at TCA or those which endanger
the safety and well-being of another. They could be grounds for
suspension or expulsion even for a first offense.”
Bentley v. Trinity Christian Academy, 2008CA-000574, KY 05/29/2009
• In the school contract, that her mother had signed , she
agreed to:
4. I understand the school reserves the right to suspend or dismiss any student
who:
a. has a scholastic or conduct record which is not in keeping with the best
interest of the school
b. develops a negative attitude toward the Christian philosophy of the
school
c. is found to be in possession of or using drugs, alcoholic beverages, or
tobacco products.
• They also argued that the school had not followed the fivestep discipline process in the handbook.
Bentley v. Trinity Christian Academy, 2008CA-000574, KY 05/29/2009
• However, he had met with the student on several occasions
regarding her behavior problems and her repeated tardiness.
Also, in another section of the handbook under major
offenses, it stated that the school “retained the discretion to
expel or suspend a student who committed a major offense,
even if it was a first offense.”
• The appeals court also noted that if Melissa Harp truly
believed that the school had breached the contract, her
required remedy would be to avail herself of the grievance
procedure by appealing the decision to the school board as
required by the handbook.
Bentley v. Trinity Christian Academy, 2008CA-000574, KY 05/29/2009
• Take-away Principle:
– Policies and procedures stated in the handbook constitute terms of
the contract for enrollment.
– Handbooks should be very concise and complete.
– The school can face liability if it does not follow its own policies and
procedures.
– Christian schools are private organizations and therefore are not
subject to the same due-process issues as government schools.
– Christian schools can set their standards of admission and continued
enrollment.
– Courts have noted that private schools are afforded broad discretion
in conducting their programs, including decisions involving the
discipline, suspension, and expulsion of their students.
Calvary Christian School v. Huffstuttler, 238 S.W.3d
58 (Ark. 2006)
This case shows the unique opportunity that Christian Schools have to
incorporate their own religious beliefs into their contracts.
• The State Supreme Court of Arkansas overruled a trial court decision awarding
$190,000 to the parents of a child who had been disenrolled from the school.
• The school contract which all parents signed each year contained a “Matthew
18 Principle [requiring the] … reconciling [of] differences by first conferring
with the most immediate staff member related to the incident in question, and
then only pursuing the proper, progressive chain of authority when matters
are not acceptably resolved.”
Calvary Christian School v. Huffstuttler, 238 S.W.3d
58 (Ark. 2006)
• When the school received evidence that the parents were not following the
Matthew 18 principles, their child was disenrolled.
• The State Supreme Court observed that the trial court had no jurisdiction
because “any analyses of whether the school breached or interfered with its
agreement with the Huffstuttlers would require us to determine whether the
Huffstuttlers did, or did not comply with Matthew 18.”
Calvary Christian School v. Huffstuttler, 238 S.W.3d
58 (Ark. 2006)
• Quotes from the Court:
The record reveals that Calvary Christian disenrolled Preston due to his parents'
failure to comply with the Matthew 18 Principles, principles that were expressly
adopted by Calvary Christian in its handbook as the approved procedure for
handling conflict. In fact, the Huffstuttlers signed a student/family intent form,
which stated in relevant part:
The signing of this document represents a visible and willful bond between the
Huffstuttler family and Calvary Christian School.
Before entering a student in any aspect of the school's program, which includes
any day care through twelfth grade, several basic aspects relative to the
philosophy and intent of the school must be agreed upon by the enrolling family
and the school body.
By signing this document the family understands that:
2) The integration of Christian world views and application of biblical principals [sic] is
required in every course and activity of the school program.
Calvary Christian School v. Huffstuttler, 238 S.W.3d
58 (Ark. 2006)
• Quotes from the Court:
Furthermore, the family agrees:
1) To respect the statement of faith of Calvary Christian School.
2) To verbally and authoritatively support the individual teachers, their classroom
rules․
3) To carefully determine to use the Matthew 18 principle of reconciling differences by
first conferring with the most immediate staff member related to the incident in
question, and then only pursuing the proper, progressive chain of authority when
matters are not acceptably resolved.
During the dispute between the Huffstuttlers and Calvary Christian, the
Huffstuttlers recommitted to adhering to the school's policies and procedures by
signing a new agreement, which stated in part,
“The family agrees to support the policies, procedures, staff, and administration of
[Calvary Christian]. We will not make any negative comments that could possibly
destroy the ministry and unity of [Calvary Christian].”
Calvary Christian School v. Huffstuttler, 238 S.W.3d
58 (Ark. 2006)
• Quotes from the Court:
The disenrollment letter, sent to the Huffstuttlers seven days later, specifically
stated:
As you know, we met with you recently for a conference due to concerns the school had
about comments made, and it was discussed with you the conditions under which
Preston would be allowed to continue as a student of Calvary Christian School without
interruption. At that time, each of you signed an agreement to support the policies,
procedures, staff, and administration of the school. A copy is attached to this letter
although you should be aware of its contents.
Since then, the school has learned that you violated the terms of this agreement.
Additionally, the school has a philosophy, based on Biblical principles, to cooperate with
the home in the education of the child. The comments and actions of the last several
days indicate that the school cannot fulfill this philosophy in the case of Preston. The
school is also concerned that comments that have been made may be defamatory.
After careful review of all the circumstances involved, the school board has determined
that the school is no longer in a position where it can continue the enrollment of
Preston.
Calvary Christian School v. Huffstuttler, 238 S.W.3d
58 (Ark. 2006)
• Take Away Principles
– Schools should have a parent cooperation statement or a contract that
has in it the Matthew 18 principal and how it works in a school setting.
– Mediation and Arbitration Clause
Withholding of Records
• There is no federal law that prevents a school from
withholding the records of a student for non-payment of
tuition.
• However, some state laws do not permit it.
• Cautions
– Withhold only the records that belong to the school
– Never withhold medical records
Student Issues
Blaine et al. v. Savannah Country Day School, 491
S.E.2d 446 (GA. App. 1997)
Audrea Blaine had been a student in the Savannah Country Day School for 13
years.
Just days before her high school graduation, she was permanently expelled for
violating the school’s honor code by cheating. Earlier in her senior year,
Blaine had twice been found guilty of an honor code violation regarding the
“intent to cheat.”
Blaine was permanently expelled from school. Blaine’s parents were devastated
and immediately brought an action for breach of contract and for breach of
fundamental fairness and due process. They wanted her to graduate with her
class.
Blaine et al. v. Savannah Country Day School, 491
S.E.2d 446 (GA. App. 1997)
A state trial court ruled in favor of the school’s request for summary
judgment, or dismissal of the case. When the Blaines appealed that
decision, the Court of Appeals of Georgia agreed and said:
Cheating fundamentally breaches the student’s duty to diligently study and learn
through her own work as a good student and the duty to exercise discipline, as well as
self-discipline; it is a violation of the honor code in order to avoid the discovery of lack of
work or of the failure to learn. This is a fundamental denial of accountability for one’s
actions.
Cheating is the “unpardonable sin” of academia, because it is intellectual dishonesty,
failure to share the academic value system of scholastic merit, a lie as to represented
truth, and implication that the academic communications of such person must always be
suspect. This lack of trust destroys the relationship between student and staff, as well as
between students, so that the student should be removed from the academic
community for the good of the school and the other students.
Blaine et al. v. Savannah Country Day School, 491
S.E.2d 446 (GA. App. 1997)
The action of expulsion, under the facts and circumstances of this
case, was not arbitrary or capricious, but a reasonable exercise of
administrative and academic discretion… There was no violation of
fundamental fairness in the treatment of Blaine.... Therefore, the trial
court did not err in granting summary judgment.
Takeaway Principle: Students are in private schools by contract, not
by the law. It is a privilege, not a right, to be in a Christian school. As
a result, if a school follows a rational system of discipline and
enforces that discipline code fairly and consistently, courts will
usually defer to the judgment of the school officials.
Ubriaco v. Albertus Magnus High Sch.,
No. 99 Civ. 11135 (JSM) (S.D.N.Y. July 21, 2000)
Peter Ubriaco, a freshman at a Catholic school in New York, was
expelled for putting what the school called “questionable material”
on his personal website and inviting other students to visit it.
The website, created by Ubriaco at home, did not contain any
threats against the school, its staff, or its students, although it did
contain expletives and material reflecting the kind of irreverence
one might expect of a teenager.
The Ubriacos alleged that the school violated their son’s free speech,
due process, and possibly privacy rights, and they sued the school
for $1 million.
Ubriaco v. Albertus Magnus High Sch.,
No. 99 Civ. 11135 (JSM) (S.D.N.Y. July 21, 2000)
In dismissing the case in favor of the school, the U.S. District Court
judge ruled as follows:
In order to maintain an action for violation of First or Fourteenth
Amendment rights, the plaintiffs must establish that the
violations at issue were the result of state action. While private
schools are regulated by the state and may receive some funds
from the state, such regulation and funding does not transform
the acts of these institutions into acts of the state.
The First Amendment says, “Congress shall make no law,” courts
hold that it prevents only the government and those acting on its
behalf from denying a person their free speech rights.
Ubriaco v. Albertus Magnus High Sch.,
No. 99 Civ. 11135 (JSM) (S.D.N.Y. July 21, 2000)
Private institutions, therefore, are not generally subject to the
limitations imposed by the First Amendment. In other words, private
schools are not “state actors” subject to the typical constitutional
restraints that would affect a public school campus.
In commenting on this case, Arthur Eisenberg, legal director of the
New York Civil Liberties Union, said, “The rights of private school
officials to take action against students based on their speech are
broader than in public schools. As a general rule, federal and state
free-speech protections apply only to government entities like public
schools.”
Takeaway Principal: Since your Christian school is not a “state
actor,” you have a lot more discretion regarding what you can
require from students—especially if you put them “on notice.”
Requa v. Kent School District No. 415, W.D. Wash., 2007
• You Tube Postings
– Gregory Requa was a student at Kentridge High in the state of
Washington.
– One day, he along with several other students were involved in secretly
videotaping their English teacher.
– The video was then edited; graphics and music were added and then
posted on YouTube.
– Requa linked the video to his MySpace page. The product included
“commentary on the teacher’s hygiene and organization habits.”
– It also showed a student standing behind the teacher making faces, putting
two fingers up behind her head, and making pelvic thrusts toward her—all
without her knowledge.
– There were also several shots of the teacher’s buttocks as she walks away
from the videographer and as she bends over, shots accompanied by a rap
song titled “Ms. New Booty.”
Requa v. Kent School District No. 415, W.D. Wash., 2007
• You Tube Postings
– Eight months later, a local news channel discovered the video and aired a
news segment featuring it along with others.
– The school did not learn about the video until the television station called
the school for comment on the station’s segment about student-made
YouTube videos that are critical of high school teachers.
– The school investigated and then suspended all the students involved in
creating the video for 40 days, a time frame during which 20 days would be
“held in abeyance” if the students were to complete a research paper while
on suspension. The school district’s board of directors upheld the
suspension.
– Requa denied having any involvement and asked the district court to lift his
suspension for his supposed involvement in filming and posting the video.
– Requa’s lawyer said that even if Requa did produce the video, his
suspension was a violation of the U.S. Constitution’s First Amendment
guarantee of freedom of speech.
– Was the school within its rights to suspend the students?
Requa v. Kent School District No. 415, W.D. Wash., 2007
• You Tube Postings
– Before filing a lawsuit, the parents appealed to the school districts
board of directors.
– The board watched the video
– The board noted that the school handbook defines sexual
harassment, in relevant part, as “activity and other verbal or
physical conduct of a sexual nature” when “such conduct has the
purpose . . . or the affect of creating an intimidating, hostile, or
offensive work/learning environment . . . for other district
employees. . .”
– The board found the recording to be sexual harassment.
– The board also noted that the Student Handbook prohibited the use
at school of “personal electronic devices” (including video
recorders, cameras, and other personal electronic devices) and that
Greg and his accomplices were in violation of this provision when
they used an electronic device to record Ms. M in her classroom
during class.
Requa v. Kent School District No. 415, W.D. Wash., 2007
• You Tube Postings
– The U.S. District Court noted what had been done by the
administration and the board of directors.
– Attorneys for Requa argued that the suspension was a violation of
the First Amendment and free speech.
– The court acknowledged that “all parties are in agreement that his
posting of the link to the YouTube video is protected speech, and …
the Court finds inadequate evidence that the punishment meted out
… is a pretext for sanctioning that activity.”
– The court cited two landmark cases involving free speech and the
school’s right to maintain an environment conducive to education.
– The court concluded on the basis of the previous cases that “the
filming of the footage at issue here does not constitute ‘protected
speech’ activity.”
Requa v. Kent School District No. 415, W.D. Wash., 2007
• You Tube Postings
– The court also noted the school policy that prohibited students from
having their cell phones turned on during school hours or from
possessing any other “personal electronic device” such as video
recorders and cameras.
– The court concluded that “the First Amendment does not extend its
coverage to disruptive, in-class activity of this nature.
– A school district’s interest in maintaining an environment that is
helpful and not harmful to learning is also important.”
– The U.S. District Court ruled that the discipline meted out by the
school was not for the posting of the video but for the classroom
actions that violated school policy.
– The court upheld the suspension of Requa.
Requa v. Kent School District No. 415, W.D. Wash., 2007
• Take Away Principles
– Student handbooks and policies are extremely important.
– Because the school in this case had specific policies
regarding the use of cell phones and video cameras, the
discipline given stood the test of the courts.
– Make sure that your school has a student handbook and that
there are clear and specific policies regarding student conduct
in and out of the classroom and regarding secretly taping
teachers or using video recording equipment.
– Your school should also have a student code of conduct
stating what is expected of the students both in and out of
school. 24/7/365
Wyke v. Polk County Sch. Bd.,
95-2799, [11th Cir. 1997]
A Florida public high school student first attempted suicide in the
boys’ bathroom at school by trying to hang himself with a football
jersey. Another student interrupted the attempt and talked him out
of it. That student told his mother about the incident, and his mother
called the school to report it. The next day, the school’s dean of
students had the boy who had attempted suicide come into his
office, and the dean read him some Bible verses. Believing that the
student was doing better, the dean took no further action. That night,
the student committed suicide.
When the mother found out about the attempted suicide the day
before in which the school failed to notify her, she sued the public
school district for negligence and received more than $165,000 in
damages.
Wyke v. Polk County Sch. Bd.,
95-2799, [11th Cir. 1997]
Immunity laws - In most of the cases in which a court has ruled that
the public school had to pay damages, the district, not the employees,
paid the judgment, because state immunity laws protect government
employees from personal liability under most circumstances.
The outcome could be quite different in a private-school setting since
Christian school employees do not have this type of legislated
immunity. They as individuals, as well as their school, could be sued
for negligence if they don’t properly notify the family in a timely
fashion. Both the school and its employees may have to pay damages
to the family if a child is injured from an attempted suicide or dies
from suicide.
Wyke v. Polk County Sch. Bd.,
95-2799, [11th Cir. 1997]
Take Away Principles
• Expectation of Confidentiality
– Confidentiality issues particularly involve school counselors who
may receive confidential information that raises concerns regarding
the safety of the student.
– For example, a student confides that he or she is considering
committing suicide.
– The school should indicate in the student handbook or other
appropriate materials available to parents and students that if a
student reveals information that in the teacher’s or counselor’s
opinion and discretion raises concerns for the safety or emotional
stability of the student, that information should be revealed to
appropriate officials and the student’s parents.
– It is important that students be put on notice that not everything said
to a teacher or counselor is confidential.
– Parents must be properly notified when the school becomes aware that their
children may be a danger to themselves or others.
Safford Unified School District #1 et al. v. Redding, No. 08-479
In 2009, the U.S. Supreme Court ruled that school officials violated the
constitutional rights of a 13-year-old Arizona girl when they strip searched her on
the basis of “a classmate’s uncorroborated accusation that she previously
possessed ibuprofen.”
Savana Redding, an eighth grade honor roll student… was pulled from class … by the
school’s vice principal, Kerry Wilson.
Earlier that day, Wilson had discovered prescription strength ibuprofen—400
milligram pills equivalent to two over-the-counter ibuprofen pills, such as Advil—in
the possession of Redding’s classmate.
Under questioning and faced with punishment, the classmate claimed that Redding,
who had no history of disciplinary problems, had given her the pills.
After escorting Redding to his office, Wilson demanded that she consent to a search
of her possessions.
Safford Unified School District #1 et al. v. Redding, No. 08-479
Redding agreed, wanting to prove she had nothing to hide. Joined by a female
school administrative assistant, Wilson searched Redding’s backpack and found
nothing.
Instructed by Wilson, the assistant then took Redding to the school nurse’s office in
order to perform a strip search….
The strip search was undertaken based solely on the uncorroborated claims of the
classmate facing punishment.
No attempt was made to corroborate the classmate’s accusations among other
students or teachers. No physical evidence suggested that [she had hidden
contraband] in her undergarments.
Furthermore, the classmate had not claimed that Redding currently possessed any
pills, nor had the classmate given any indication as to where they might be
concealed.
No attempt was made to contact Redding’s parents prior to conducting the strip
search
.
Safford Unified School District #1 et al. v. Redding, No. 08-479
In an 8-1 ruling, the Court said that the evidence didn’t rise to a level necessary to
conduct such an invasive search which Redding described as embarrassing,
frightening, and humiliating.
“Here, the content of the suspicion failed to match the degree of intrusion,” stated
Justice David Souter.
Mr. Wilson’s suspicion was reasonable, the court found, and that was grounds
enough to search Redding’s backpack and outer garments, but not to have her
strip-searched.
Takeaway Principle: Danger! Student STRIP searches have a high risk of liability
for the individuals conducting the search and for their schools. Remember,
neither individuals conducting the search or the private school have government
immunity from liability.
Searches
• There is no constitutional expectation of privacy in a private school
• Courts have upheld random and blanket searchers, particularly of student’s
lockers and desks, to prevent the possession and use of illegal materials and
contraband and to maintain school discipline and order.
• Schools should have a search and seizure policy in your student handbook.
• Be specific in your policy statements concerning searches of lockers, desks,
automobiles, and personal items.
• Emphasize that lockers, desks, and parking areas are school property and that
students are permitted to use them as a matter of privilege, not of right.
• Cell phones can also fall under this policy
Roe v. Catholic Diocese of Memphis, Inc.,
950 S.W.2d 27, 31 (Tenn. Ct. App. 1996)
A four-year-old child in a parochial preschool program was allowed to go 40 feet
down the hall to a restroom while a substitute preschool teacher stood in the
doorway watching.
At the same time another four-year-old child asked to get a drink.
When the teacher left the doorway to attend to a crying child inside the
classroom, the boy getting a drink entered the restroom and sexually assaulted
the other boy.
The parents sued alleging that St. Paul’s Preschool was negligent in its care and
supervision of children.
St Paul’s Preschool asked the court for summary judgment, basically contending
that the case be dismissed because a sexual assault between two four-year-olds
was so unforeseeable that there was no duty to guard against it.
Roe v. Catholic Diocese of Memphis, Inc.,
950 S.W.2d 27, 31 (Tenn. Ct. App. 1996)
The preschool director indicated that St. Paul’s had never received a complaint or
report concerning any sexual assault or misconduct among its preschoolers, or that
there had been other warnings about the particular child that caused the assault.
The court granted the summary judgment motion. The family appealed the decision to
a Tennessee Court of Appeals which upheld the lower court’s dismissal decision.
While courts recognize that schools cannot guarantee the general safety of their
students, they do consistently hold schools and teachers to a greater level of
responsibility for the supervision of young children than of older students.
Failure to follow school policies will undercut a school’s defense against negligent
supervision of students.
Roe v. Catholic Diocese of Memphis, Inc.,
950 S.W.2d 27, 31 (Tenn. Ct. App. 1996)
If a school is “on notice” about dangers of inappropriate activities that have
previously occurred in a particular location, such as a restroom, or that a
particular child has assaulted another child, extra supervision is required to
protect innocent children. Failure to do so will be held as negligence by the courts.
Courts will also pay attention to the setting in which the assault takes place.
Takeaway Principle: Just as schools must put parents and students “on notice”
regarding its policies and procedures, schools themselves are “on notice” and
must pay attention when adverse actions take place. Once on notice, schools
must alter policies, procedures, supervision levels, etc. depending on the on
notice issue.
Bell v. Board of Education, 687 N.Y.S.2d 1325 (A.D. 1997) and Bell v.
Board of Education of the City of New York, No. 154, [N.Y. 1997].
A sixth-grade girl, with her class of thirty students, was attending a
drug awareness program sponsored by the board of education at a
park near her public school.
She obtained permission from her teacher to leave the park at lunch
time to go to a nearby pizza shop, but later became separated from
the group and was raped by three junior high school boys.
The victim filed a complaint against the board of education alleging
that the board had failed to adequately supervise her during a
school activity.
A jury awarded the girl $3,000,000 in damages, but the school
district appealed the ruling. The damage verdict was upheld by New
York’s highest state court.
Bell v. Board of Education, 687 N.Y.S.2d 1325 (A.D. 1997) and Bell v.
Board of Education of the City of New York, No. 154, [N.Y. 1997].
During the trial, a school safety expert said that the
school should have taken the following steps to protect
the children on this field trip:
–There should have been at least one more adult supervising the group
of 30 elementary-age children. Previous testimony indicated that there
were only two adults on this trip to the park.
–The teacher did not use the “buddy” system whereby students are
paired off and keep track of each other.
–The class should have met at least once each hour as a group during
their stay at the park.
–The teacher should have told the students that they could not leave the
park alone, and that they would be dismissed from the outing only
after they returned to school.
Bell v. Board of Education, 687 N.Y.S.2d 1325 (A.D. 1997) and Bell v.
Board of Education of the City of New York, No. 154, [N.Y. 1997].
The school safety expert testified that the teacher should
have:
–notified the school immediately of the girl’s disappearance and sought
guidance from his administrator;
–contacted the park police regarding her disappearance;
–sent the group of children back to school with the other teacher while
remaining behind to continue searching for the girl until at least the
school’s regular dismissal time, and;
–notified school officials upon his return that the victim was still missing.
Takeaway Principle: Be sure that all special student activities
have adequate preplanning, staff instructions, and volunteer
instructions for the adequate supervision of students.
Jerkins v. Anderson, No. 3838-02 (N.J.Super. App. Div.
June 20, 2006)
Joseph Jerkins, a third grader, was left quadriplegic after being
struck by a car when he ran into the street.
Students had been released early that day. Joseph’s father or
one of his older brothers normally met him at school when
classes ended and escorted him home.
However, they claim that they were not made aware of the
early release. When Joseph’s brother arrived at school at the
usual release time, he learned students had been released
early. Joseph was struck by a car later that afternoon.
Jerkins v. Anderson, No. 3838-02 (N.J.Super. App. Div.
June 20, 2006)
The Jerkins family filed suit against the driver of the car for negligent
operation of the vehicle and against school officials alleging that
school officials had negligently failed to carry out their duty to provide
reasonable supervision.
The trial court dismissed the negligence claim, concluding that school
officials did not have a duty of reasonable care for Joseph’s safety
after school.
The parents appealed the decision.
Jerkins v. Anderson, No. 3838-02 (N.J.Super. App. Div.
June 20, 2006)
The appellate court concluded that the risk of harm to Joseph was
foreseeable given his age and the fact no one was on hand to
supervise his trip home.
It dismissed the trial court’s reliance on the fact that the accident
occurred several hours after Joseph was released, finding it
predictable that the person responsible for supervising the child
would not look for him until the regular dismissal time and that the
child consequently would remain unsupervised “for hours and could
be injured by an accident of the sort that occurred here.”
The Court said:
Although the overarching mission of a board of education is to educate, its first
imperative must be to do no harm to the children in its care.
Jerkins v. Anderson, No. 3838-02 (N.J.Super. App. Div.
June 20, 2006)
This New Jersey case broke new legal ground. Schools have always
assumed that once dismissed, their responsibility for the students
ends.
Although this case sets a precedent in New Jersey, it could be the start
of a new national precedent or could be cited by plaintiff attorneys in
similar cases. Are parents getting proper notification when the school
changes procedures, calendars, etc.? Pay attention to the timing of
things.
Takeaway Principle: We are our brother’s keeper. Watch your
school procedures carefully to avoid unintended adverse
consequences for children.
Todd v. Church, 993 So.2d 827 (Miss. 2008)
On a February day, two-year-old Lily Todd was playing as she did every day at the
childcare center. On this day as Lily played, something happened in an instant, and
she sustained a significant laceration to her face, from her cheek down to her jaw,
a laceration that resulted in pain, suffering, and multiple reconstructive surgeries
and which left Lily with a permanent scar. “The exact circumstances under which
Lily was injured were unclear, as no adult witnessed the incident.
On that day as the children played, one of the childcare teachers turned to talk to
a parent who had come to retrieve her child when the cry went out from Lily. The
teacher turned around to see Lily bleeding from the mouth and obviously needing
medical attention. The teacher called for help from another childcare teacher, and
Lily was rushed to the emergency room. he accident that led to Lily’s injuries.”
Todd v. Church, 993 So.2d 827 (Miss. 2008)
The mother sued the church, claiming that the childcare center had been
negligent in its supervision of Lily. The trial court granted the church’s motion for
summary judgment on the ground that no reasonable jury could find the church
and childcare center to have been negligent. The mother then appealed the case.
There was conflicting testimony about what happened to cause Lily’s injury. Lily
told her mother that one of the boys in the childcare center had “stomped on her
face.” The doctor testified that “the alveolar ridge fracture … was not consistent
with an ordinary trip-and-fall injury, but was consistent with a strong blow to the
face, or a hard blow to the head with the head secured.” On the other hand, the
teacher “speculated that Lily had somehow fallen.” However, the teacher
admitted that she did not see the accident take place.
The Supreme Court of Mississippi reversed the decision of the trial court and sent
it back for jury trial.
Todd v. Church, 993 So.2d 827 (Miss. 2008)
The court stated,
The parties agree that First Baptist owed a duty to Lily and Todd [Lily’s mother].
Therefore, the fact issues of breach and proximate cause to be determined by the
jury must be supported by the plaintiff with credible evidence. The record reflects
that testimony, when viewed in the light most favorable to Todd, as required by
law, could support a jury verdict in favor of Todd. Should the jury find that Ward
[one of the childcare teachers] breached her duty when she did not keep the
children in sight for two or three minutes, the jury could reasonably find for Todd.
“When doubt exists whether there is a fact issue, the non-moving party gets its
benefit.” Glover v. Jackson State Univ….
A school is not expected to ensure children’s safety, but it must exercise the
ordinary care of a reasonable person under similar circumstances….
Todd v. Church, 993 So.2d 827 (Miss. 2008)
… Ward admitted that she had her back to Lily at the time of the incident and did
not see how Lily was injured…. A jury must decide what constitutes proper and
adequate supervision for a two-year-old child. Therefore, whether or not Ward met
the appropriate standard of care required for a two-year-old child must be
determined by a jury….
… In our review of summary judgment, we must assume that Lily’s statements and
Dr. Gaines’s testimony are true. Our law is well-settled on this point; if there is error
at the trial level, it must be resolved in favor of proceeding to a trial to enable the
jury to weigh any evidence…. This Court must take as true the evidence presented
by Todd that Ward breached her duty when she left the children unsupervised for
several minutes, and that such breach was the proximate cause of Lily’s injuries.
Take Away Principle: When it comes to supervision, the more vulnerable the
child, the more vigilant the supervision must be. Teachers must be diligent to
never take their eyes off the children much less turn their backs.
Barretto v. NY City Bd. of Ed., 1997 N.Y. App. Div.
– Jose Barretto, a high school senior, and several members of the varsity
volleyball team assembled outside the school gym for their practice.
– Coach told players to put up net as they usually did.
– Coach went to change clothes and told players not to horse around with
volleyballs.
– Players put the net up halfway and one of the players ran to the net acting like
he was going to dive over it but stopped short.
– Jose said, “I can do it.”
– They put gym mats under the net.
– Several team members warned him not to try it.
– Jose ran and jumped headfirst, expecting the mats to break his fall.
– When he jumped he got caught up in the net and fell head first.
– His injuries caused paralysis from the chest down.
– His parents sue the public school district for negligence, alleging inadequate
supervision.
Barretto v. NY City Bd. of Ed., 1997 N.Y. App. Div.
– The judge ruled that the school was negligent for 80% of the
accident.
– Jose was 20% responsible.
– Ruled the district owed the family nearly $15 million.
– However, the Supreme Court saw it differently.
– The Supreme Court made a distinction between the standard of
care for students during the school day compared to care for
students participating in voluntary after-school activities.
– The lower court ruling was reversed and the damages dismissed.
Barretto v. NY City Bd. of Ed., 1997 N.Y. App. Div.
• Take Away Principles
– “On Notice”—A very important point was made in the judge’s opinion.
It was established through testimony that there was an absence of
prior incidents, a fact that would have put the district or the coach on
notice that constant supervision was needed for this group. These
students had repeatedly put up the nets without problems. The coach
had not had prior disciplinary problems with the team. “Thus, the
record fails to show that the coach was on notice of such dangerous
prior activity by the team members such that his constant
supervision was required.”
– Required v. Voluntary Activity—Schools are held to a higher
supervision standard when activities are required, as in the case of
P.E. class, compared with a student turning out for after-school
sports. In the latter case, the student and his or her family assume
certain risks in return for participation in the voluntary activity.
Barretto v. NY City Bd. of Ed., 1997 N.Y. App. Div.
– Variety of Supervision Requirements—Generally speaking, different
levels of student supervision are required, depending on several
factors such as (a) the age of the students, with younger students
requiring more supervision; (b) the type of sport or activity (e.g.,
gymnastics or swimming require greater supervision than volleyball);
(c) whether the sport or activity is required during the school day
(e.g., P.E. class) or is a discretionary after-school event; (d) the
weather conditions if the activity is held outside (e.g., potential for
lightning strikes or heat stroke during hot, humid weather); (e) the
type and condition of equipment (e.g., weight-training equipment
compared to baseball equipment); and (f) the location of the event
(e.g., on or off school property, fenced or unfenced outdoor fields). As
you can see, there is a “sliding scale” as far as what is appropriate
supervision of students. Be sure to apply appropriate riskmanagement principles.
Barretto v. NY City Bd. of Ed., 1997 N.Y. App. Div.
– Relevance of Assigned Duties—The judge also noted that the district
didn’t have a regulation or formal policy statement that specifically
required a coach to remain with his or her team at all times. Therefore
the coach did not breach or neglect an assigned duty. Failure of a
teacher to be on assigned duty (such as recess supervision) when an
accident occurs, or failure to stop an activity prohibited in the student
handbook (such as snowballing of other students) can result in
school liability based on negligence or lack of supervision.
Noffke v. Bakke and Holmen High School,
Supreme Court of Wisconsin, 2009
• In the “commons” was a scene that took place before every
game: the cheerleaders were practicing and getting ready to
cheer their team on to victory.
• This night, they were practicing a stunt that three of the
cheerleaders had never done together.
• This “post to hands” stunt was being done without any mats.
• Brittany Noffke was to be the “flyer,” which is the person who
stands on the shoulders of the “base.”
• Sixteen-year-old Kevin Bakke was the “post.” His duties in this
stunt were to help the flyer get into position on the base and
initially support most of the weight of the flyer until her feet were
secured on the base’s shoulders.
Noffke v. Bakke and Holmen High School,
Supreme Court of Wisconsin, 2009
• Once Noffke was in position, Bakke let go and on this night moved
to the front of the stunt.
• As he moved to the front, Brittany Noffke fell backward where
there was no one to catch her or slow her fall. She fell on the tile
floor and sustained a serious head injury.
• Her cheerleading coach was approximately 10 feet away
supervising another group of cheerleaders and thus was unable
to prevent Noffke’s fall.
• Noffke sued Bakke and the school.
• It went to the Supreme Court where they ruled the school had
immunity but Bakke did not.
Noffke v. Bakke and Holmen High School,
Supreme Court of Wisconsin, 2009
• The Wisconsin statute § 895.525(4m)(a) reads:
A participant in a recreational activity that includes physical contact between
persons in a sport involving amateur teams, including teams in recreational,
municipal, high school and college leagues, may be liable for an injury inflicted
on another participant during and as part of that sport in a tort action only if
the participant who caused the injury acted recklessly or with intent to cause
injury.
• Justice Annette Ziegler wrote that cheerleading is a sport and
involves “a significant amount of physical contact between the
cheerleaders that at times results in a forceful interaction
between the participants.” The judge cited stunts in which
cheerleaders are tossed in the air as an example of the contact
involved.
Noffke v. Bakke and Holmen High School,
Supreme Court of Wisconsin, 2009
• Take Away Principles
– The implications are that cheerleaders are afforded the same legal
protections as athletes in basketball, football, and other such sports in
the state of Wisconsin.
– The cheerleaders should not have been practicing on a tile floor.
– Even though most cheerleaders don't compete, or do so only once a year,
they are clearly athletes, and cheer programs should be run as other
athletic programs are run.
– These programs should have a qualified coach supervising the program,
and that coach needs to follow the rules that are in place.
– www.aacca.org.
Pace v. State, 5 A.3d 1121 (Md. Ct. App. 2010)
• Liana was a kindergarten student.
• Her mother advised the school that Liana was extremely allergic
to peanuts.
• School was provided an EpiPen for her.
• She did not have money for lunch one day and the staff served
her a peanut butter sandwich.
• She objected but after being scolded, she obeyed.
• Liana immediately had an anaphylactic reaction.
• A half hour later, they called mom and she told them to
administer the EpiPen.
Pace v. State, 5 A.3d 1121 (Md. Ct. App. 2010)
• After the episode, Liana began to suffer psychological issues.
• She was fearful of returning to school and when going to the
cafeteria, they put her at a table by herself with a sign on the wall
declaring peanut allergy.
• Her mother filed a lawsuit against the school and the cafeteria
workers.
• The mother lost the case because the National School Lunch Act
did not impose a duty on the school that would make it or its
personnel liable for failing to ensure that no cafeteria worker ever
fed peanut butter to a child who was allergic.
• The court focused on the NSLA and not negligence liability.
Pace v. State, 5 A.3d 1121 (Md. Ct. App. 2010)
• Take Away Principles
– This was a public school.
– As Christian school personnel, we have a duty to protect children, and we
are being paid for this service.
– So it is incumbent on a private Christian school to protect those children
who have special allergies like the one in this case.
– The school should have steps in place to identify the allergy and notify all
who come in contact with that child.
– Schools should consider the issue of possible negligence liability.
– See article Cafeteria Personnel and Allergies in appendix.
Federal Programs
Family Educational Rights and Privacy Act (FERPA)
• Commonly known as the “Buckley Amendment
• Affords to parents certain rights to their children’s
educational records.
• When a student turns 18 years old or enters a
postsecondary institution at any age, the rights under
FERPA transfer from the parents to the student.
• Applies to educational institutions that receive federal
funds from programs administered by the USDE.
• Generally Christian schools are not subject to FERPA.
• Many of the FERPA regulations make good sense.
• They may be a good educational practice.
Family Educational Rights and Privacy Act (FERPA)
• To comply with the act, the school must meet the
following:
▫ Parents must be afforded the right to inspect the records of their child
enrolled in the school within 45 days after a request is made;
▫ Should the records not be provided, the parents have the right of a
hearing;
▫ Personnel records of teachers in their capacity as employees are not
required to be revealed;
▫ The school must inform the parents of their right to inspect the records,
resulting in a requirement that the school publish its policy to parents;
▫ The school must provide a copy of the records where failure to do so
would effectively prevent a parent or student from reviewing or having
access to the records; and
▫ Either parent has the right to review the records unless a court order,
state statute, or legally binding document indicates otherwise. Such
documents would include, for example, divorce documents, separation
agreements, or custody orders.
Individuals with Disabilities Education Act (IDEA)
• Five basic ideals of the law:
1. Requires nondiscriminatory and multidisciplinary
assessment of educational needs.
2. Requires parental safeguards and involvement in
developing each child’s educational program.
3. Requires a free and appropriate public education (FAPE).
4. Requires an individualized education program (IEP).
5. Requires that the child be educated in the least restrictive
environment (LRE).
Individuals with Disabilities Education Act (IDEA)
• Booklet - Provisions Related to Children With Disabilities
Enrolled by Their Parents in Private Schools.
• The most recent provisions require the LEA with jurisdiction over the
district in which the private school is located to be the responsible
agency for implementing IDEA requirements for parentally placed
children with disabilities.
– This includes the obligation that the LEA locate, identify, evaluate,
and spend a proportionate share of IDEA funds for equitable
services for children with disabilities enrolled by their parents in
private, including religious, elementary and secondary schools
located in that district.
Title VI of the Civil Rights Act of 1964
• Schools that receive federal financial assistance must comply.
• “No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination
under any program or activity receiving federal financial
assistance.”
• The mandate extends to a school’s student admissions,
financial aid, and virtually every aspect of the federally
assisted program.
Section 504 of the Rehabilitation Act of 1973
• The school must provide “reasonable accommodation” to
disabled students if the school is a recipient of direct federal
funding under some educational act or program.
• Schools not receiving direct federal funding need not comply
with Section 504.
Floyd D. Spence National Defense Authorization Act
• Grants the military access to public and private secondary
school student names and addresses for recruiting purposes.
• If you are contacted for this information, there are four possible
responses:
1. Send the list.
2. Explain that such names are not available to colleges or prospective
employers and therefore, they are not available to a military recruiter.
3. Explain that the school board has adopted a policy prohibiting the
releasing of names for this purpose.
4. Show that the school has historic religious objections to military service
and invoke section 563(c)(5)(b).
Telecommunications Act of 1996
• The Schools and Libraries Universal Service program was
established as part of the Telecommunications Act of 1996 to
provide affordable telecommunications services for all eligible
schools and libraries, especially those in rural and economically
disadvantaged areas.
• Commonly referred to as E-rate.
• http://www.fcc.gov/wcb/tapd/universal_service/
Children’s Internet Protection Act of 2000
• Requires schools and libraries that receive funding under either
Title III of the Elementary and Secondary Education Act or the
Museum and Library Services Act, or that receive universal
service discounts for Internet access (“E-rate”) to adopt an
Internet safety policy incorporating the use of filtering or
blocking technology on computers with Internet access.
• You will find more information this website:
www.universalservice.org.
Federal Copyright Act
• Schools must follow the copyright law regarding the use of
printed material, music, and other media products.
• Prerecorded video cassettes, CDs, music tapes, and DVDs
available in stores are for home use only.
• Rentals or purchases of such media products do not carry with
them licenses for non-home showings.
• A separate license must be obtained to show such materials for
entertainment purposes in schools, day cares, churches, and
other public gatherings even if no admission or other fee is
charged.
Federal Copyright Act
• Some copyrighted materials may be used in face-to-face teaching
activities because the law makes a specific, limited exception for
such uses.
• This exception is limited to instances when a teacher is present
in a classroom and uses home recorded material for the purpose
of teaching students (not principally to entertain them).
• Schools may, through organizations representing movie or by the
purchase of “right to use” directly from the composer, publisher,
or artist, obtain an annual umbrella license affording the
opportunity to use any covered copyrighted materials as often as
the user chooses.
Federal Copyright Act
• Christian Video Licensing International (CVLI) is a partnership
between Motion Picture Licensing Corporation (MPLC) and
Christian Copyright Licensing International (CCLI) created to
specifically serve the needs of the religious community.
• Visit their website at www.cvli.org or call CVLI at 888/771-CVLI
(2854).
• They offer ACSI member schools a discount.
Federal Copyright Act
• Books and Periodicals
– A teacher may:
• Make a single copy, for use in scholarly research, in teaching, or in preparation
for teaching a class, of the following:
–
–
–
–
A chapter from a book
An article from a periodical or newspaper
A short story, short essay, or short poem, whether or not from a collected work
A chart graph, diagram, drawing, cartoon, or picture from a book, periodical, or
newspaper
• Make multiple copies for classroom use only, and not to exceed one per
student in a class, of the following:
– A complete poem, if it is less than 250 words and printed on not more than two
pages
– An excerpt from a longer poem, if it is less than 250 words
– A complete article, story, or essay, if it is less than 2,500 words
– An excerpt from a prose work, if it is less than 1,000 words or 10 percent of the
work, whichever is less
– One chart, graph, diagram, drawing, cartoon, or picture per book or periodical
Federal Copyright Act
• Books and Periodicals
– A teacher may not:
• Make multiple copies of work for classroom use if it has already been copied
for another class in the same institution
• Make multiple copies of a short poem, article, story, or essay from the same
author more than once in a class term
• Make multiple copies from the same collective work or periodical issue more
than three times per term
Volunteer Protection Act of 1997
• Schools can relieve the anxiety of potential volunteers who are concerned
about exposure to financial liability by informing them of the Volunteer
Protection Act.
– A person is individually protected from liability when an accident or problem
occurs if:
• He/she was acting within the scope of his/her responsibilities
• He/she was licensed or certified (if that is required for the type of volunteer
work being done)
• He/she did not act willfully or recklessly; or engage in criminal conduct; or act
with gross negligence or conscious, flagrant indifference to the rights or safety
of the individual harmed
• He/she was not operating a motor vehicle, vessel, or aircraft
• This law protects the volunteer; it does not protect the school in any way
from liability for compensatory or punitive damages.
Political Activity by Nonprofit Organizations
• The IRS puts limits on political activity by tax-exempt
organizations.
• Tax-Exempt Organizations CAN:
– Conduct nonpartisan voter registration drives.
– Distribute unbiased, nonpartisan voting records and candidate surveys.
The surveys must cover a broad range of issues, not just the
church’s/school’s known agenda. The materials must not unfairly describe
any candidate’s position on an issue or unfairly summarize a candidate’s
voting record. Also the materials must not be distributed only near
election time. They must be distributed at least one other time during the
year, in a non-election season.
– Educate their members on specific issues or pending legislation.
Political Activity by Nonprofit Organizations
• Tax-Exempt Organizations CAN:
– Have issues awareness committees and meetings to educate members on
specific issues or pending legislation.
– Enlighten members on what they can do if they support or oppose a
particular issue.
– Expend up to 5% of their total budget on direct lobbying or on
contributions to individuals or groups for the purpose of supporting or
opposing specific legislation (not candidates).
– Encourage prayer for a particular issue or public official.
– Host candidate forums if all candidates for a particular office are invited
and the forum is conducted in a nonpartisan manner.
Political Activity by Nonprofit Organizations
• Tax-Exempt Organizations CANNOT:
–
–
–
–
–
–
Endorse a political candidate.
Make contributions to a political candidate.
Participate in political fund-raising endeavors for a political
candidate.
Distribute political materials for a candidate.
Pay for individuals to attend a caucus for a state or national
political convention.
– Donate their mailing list to a candidate or political party.
• Key- Influence voters or legislators regarding issues.
Federal Rules of Civil Procedure (FRCP)
• The FRCP governs civil procedure in U.S. district Courts, or more
simply, court procedures for civil suits.
• States make their own rules that apply in their own courts, but most
states have adopted rules that are based on the FRCP.
• If your school receives a letter, phone call, or verbal message that
threatens a lawsuit, all electronic messages that might be relevant to a
potential lawsuit must be saved even if the time frame for saving this
information goes beyond the normal time your school routinely uses
to destroy old electronic files or copy over backup disks.
• Destroying information stored by some type of electronic means is
“spoliation of evidence” and can be quite costly to your school if the
destruction becomes an issue during a civil lawsuit.
IRS Issues
FORMS REQUIRED AT CALENDAR YEAR END
• IRS Form 1099-B “Barter Income”
• Used to report barter-type arrangements when an
individual receives payments that exceeds $600 in a
calendar year.
• A typical barter situation is when a school would use
products or goods (as opposed to cash) as a form of
payment.
• This applies to parents or students trading work at school
for tuition payment that exceeds $600 in cash value.
• Please note that you may also report certain barter-type
income on a 1099-MISC. Each individual must receive
Form 1099-B by January 31.
FORMS REQUIRED AT CALENDAR YEAR END
• IRS Form 1099-B “Barter Income”
• Bartering for services is legal.
• However, there are some pitfalls.
 Information about bartering is for a calendar year, not a school year.
 A 1099-B or 1099-MISC form must be supplied to individuals receiving
$600 or more in discounted tuition.
 Be sure to check and see if the number of hours being worked at least
equals the required minimum wage when compared to the amount of
tuition being discounted.
 Be sure that the bartering “employee” is covered by workers comp or
school will be directly responsible for paying medical fees if there is an
“on-the-job” accident. Discuss your bartering “employee” situation with
your worker’s comp carrier.
 Does this “employee” have to meet the same lifestyle requirements as all
other school employees? He/she may be in the school working on a fairly
regular basis. This is an important issue for your school to decide.
Determining the Taxability of Love or Special
Occasion Gifts
• The school pays a bonus at the end of the year to its
school employees. Is that income taxable?
• You must consider the nature of any bonus.
• Bonuses typically are given as a result of services
rendered.
• Therefore, they constitute income and must be reported
on the employee’s W-2 form for the year the bonus is
actually given.
Determining the Taxability of Love or Special
Occasion Gifts.
• There are probably three basic types of “love
gifts.”
1. Given on a special occasion such as Christmas or at
special times throughout the school year.
• Was the gift given to compensate the employee
more fully for services rendered on behalf of the
ministry?
• If yes, then the amount given is taxable
compensation for the services rendered by the
employee.
• It is a taxable gift.
• The controlling issue is the intention with which
the school ministry made the payment.
Determining the Taxability of Love or Special
Occasion Gifts.
• There are probably three basic types of
“love gifts.”
2. A gift provided by the ministry solely to
show goodwill, esteem, or kindliness.
• This type of gift has no taxable income.
• The school and employees, however, have a high
burden to show the gift is not as a result of
employment or services rendered.
Determining the Taxability of Love or Special
Occasion Gifts.
• There are probably three basic types of “love
gifts.”
3. A gift given
that involves responding to a
particular need a staff member may have.
• Serious automobile wreck and extensive financial needs.
• Ministry gives a gift. Is this taxable?
• If the gift is provided out of esteem, respect, or
compassion for need and not to compensate because of
or for services, it is non-taxable and does not need to be
reported on the employee’s W-2 form.
• It is generally easier to show that this type of special
occasion gift was not a result of services rendered,
especially if the ministry provides similar gifts on occasion
to non-employees.
Determining the Taxability of Love or Special
Occasion Gifts.
• Gifts given by an individual
• What about a personal gift made directly by an
individual connected with the ministry to an employee
of the school?
• The donor may not receive a contribution credit.
• If the individual makes the contribution to the school
ministry, which receives a charitable contribution credit
and passes the gift to the designated employee, the
school must report the gift as taxable compensation.
IRS Revenue Procedure 75-50 – Policy on Racial
Nondiscrimination
• An annual nondiscrimination notice is to be
published in a local newspaper.
• Church-related schools are to file IRS Form 5578
on an annual basis.
• Independent schools use Schedule A when filing
their Form 990.
IRS Revenue Procedure 75-50 – Policy on Racial
Nondiscrimination
• The following records and materials are to be kept by
the school for three years:
1. Records indicating the racial composition of the
student body, faculty, and administrative staff for
each academic year.
2. Records sufficient to document that scholarship and
other financial assistance are awarded on a racially
nondiscriminatory basis.
3. Copies of all brochures, catalogs, and advertising
dealing with student admissions, programs, and
scholarships.
4. Copies of all materials used by or on behalf of the
school to solicit contributions.
IRS Form 5578 “Annual Certification of Racial Nondiscrimination for a Private School Exempt from
Federal Income Tax”
• Complies with IRS Revenue Procedure 75-50
• Category I (church owned and operated schools)
and Category II schools (church owned and
operated, but separately incorporated schools)
file Form 5578.
• Independent schools file a different form (Form
990).
• For schools using a July 1–June 30 fiscal year,
Form 5578 must be filed with the IRS by
November 15. (15th day of the fifth month after
the close of the fiscal year.)
FEDERAL REQUIREMENTS FOR CONTRIBUTIONS
• Contribution Receipts
• All charitable donations of cash must be substantiated
either with a bank record or written communication from
the donee, regardless of the amount of the donation.
• The receipt may be provided at the time of the gift or in
the form of a periodic report summarizing gifts during the
reporting period.
• The donor must have a qualifying receipt by the due date
of his/her tax return or when filed, if earlier, in order to
receive a contribution deduction.
FEDERAL REQUIREMENTS FOR CONTRIBUTIONS
• Contribution Receipts
• A qualifying receipt contains these elements:
• Name of organization.
• Name of donor.
• The amount of cash received, or a description of the property donated.
[Note: the value of the property should not be listed on the receipt.]
• A description and valuation of any property or service provided to the
donor by the organization, or a statement that no property or services
were provided.
• If only intangible religious benefit was provided to the donor, a statement
that only intangible religious benefit was provided. Here is a sample
statement:
•
We have not provided any goods or services in consideration of your
contribution. Therefore, your entire contribution may be deductible as
a charitable contribution for federal income tax purposes.
FEDERAL REQUIREMENTS FOR CONTRIBUTIONS
• Contribution Receipts
• Disclosure rules for “quid pro quo” contributions.
• Contribution made by a donor in exchange for goods or services
from the ministry.
• A donor may only take a contribution deduction to the extent that
his/her contribution exceeds the fair market value of the goods
and services the donor receives in return for the contribution
unless the goods or services are of “insubstantial value.”
• “Insubstantial value” is defined as having a fair market value of
not more than 2% of the amount of the donation (up to a
maximum of $104).
• You must provide a written statement to a donor who makes a
payment exceeding $75 partly as a contribution and partly for
goods and services.
FEDERAL REQUIREMENTS FOR CONTRIBUTIONS
• Contribution Receipts
• Donation Receipts for Tuition
• Parents and relatives do not qualify for tax-deductible
contribution receipts if they donate for their own children,
adopted children, grandchildren, or children of their extended
family’s benefit such as nieces and nephews.
• If individuals donate to the school’s financial aid fund or
scholarship fund and the school has (1) full control over how the
money will be spent, and (2) truly objective standards (which
should be written and understood by everyone) are followed in
the awarding of the funds. This is tax-deductible.
FEDERAL REQUIREMENTS FOR CONTRIBUTIONS
• Contribution Receipts
• Donation Receipts for Tuition
• A tax-deductible receipt can be provided to an individual
that donates for a needy child and suggests that the school
consider a particular non-related child.
• If the person designates the funds to a particular child
without the school having full and final discretion in the
spending of the funds, no tax-deductible receipt should be
given.
• IRS Publication 526 – www.irs.gov
FEDERAL REQUIREMENTS FOR CONTRIBUTIONS
• IRS Form 8283 “Noncash Charitable Contributions”
• Used to report a donor’s contributions of property valued at $500
or more if the donor plans to claim a deduction for the
contribution.
• IRS Form 8282 “Donee Information Return”
• Used by a donee organization (school or church) to report the
sale, exchange, consumption, or other disposition of donated
property (valued $5,000 or more)
EMPLOYEE EDUCATION DISCOUNTS
• IRS Code – Staff Tuition Discounts (26 USC §
117)
• The school may adopt by board action a QTR plan (Qualified
Tuition Reduction plan) according to IRS regulations for those
on its staff receiving tuition discounts.
• The plan must offer the same discount to all within a boarddetermined “class” to be a tax-free benefit.
• Board action determining the different classes of workers and
their discounts is to be reflected in the official board minutes.
• Highly compensated employees ($115,000 or more in 2014)
may be given the discount, but the amount of the discount
must be added to their W-2 forms.
EMPLOYEE EDUCATION DISCOUNTS
• Tuition Discounts for Church Staff
• IRS Private Letter Ruling 200149030
• Church staff that do not have a function or role in their
own Christian school do not qualify for a tax-free tuition
discount.
• If a discount is given to these individuals, the amount of
the discount must be reported as income on the W-2 form.
Environmental Laws
OSHA’s Final Rule for Bloodborne Pathogens
• An exposure control plan is to be written covering each staff position
and must be updated annually.
• “Interactive” in-service is to be provided to all staff regarding
“universal precautions” and other bloodborne pathogen issues.
• Latex or vinyl disposable gloves and other appropriate items are to be
provided to all staff.
• Staff is required to practice universal precautions.
• Hepatitis B vaccinations are to be offered at school expense to those
members of the staff whose job classifications fall into Group One.
• All other staff are to be offered the vaccination series within 24 hours
of exposure at school expense.
Asbestos Hazard Emergency Response Act
• Requires that an initial inspection and management plan be prepared unless
the school is in a new building with an occupancy permit dated after October
12, 1988.
• The management plan for responding to asbestos-containing materials is to
be submitted to the Governor or a designated state official.
• A copy of the management plan is to be made available in the school’s
administrative offices for inspection by the public.
• The school service/maintenance staff must be educated regarding safety
procedures with respect to friable asbestos-containing material.
• The school is to contract for inspections every three years by EPA-certified
inspectors.
• The school must also keep in their office copies of the annual letter to
constituents indicating they may come to the school office to inspect the
management plan.
• New schools without asbestos must still have a management plan.
Worker and Community Right to Know Law [Hazard Fact Sheets]
• Requires manufacturers and importers to determine if their products contain
hazardous chemicals.
• If so, they must make hazard information available through distributors to
users in the form of container labels and material-safety data sheets (MSDS).
• MSDS must be saved and made accessible to employees.
• Employers must develop, implement, and maintain at the workplace a
written, comprehensive hazard communication program that includes
provisions for container labeling, collection and availability of MSDS, and an
employee training program.
• A list of hazardous chemicals in each work area must be compiled.
• Some potential hazardous chemicals used by schools may include
janitorial/cleaning supplies, pesticides, certain office products, and science
lab chemicals.
Thomas J. Cathey, EdD
Assistant to the President
Director for Legal Legislative Issues
(719) 528-6906
[email protected]