Youth Services Litigation Blog : Georgia Youth-Serving Organization Lawyer & Attorney : Debbie Ausburn Law Firm : Youth Camps, Day Care, Social Services

I ran across this study, from Clinical Pediatrics, analyzing injuries to children from furniture tip-overs. The researchers found a significant increase in injuries in the last 18 years, with televisions being the most-common furniture to tip over.

I have seen a lot of news reports of children being seriously hurt  by falling televisions in schools or day care centers.  In some cases, the staff apparently was not properly supervising the children, and in others, the center might not have properly secured the television. 

Consumer Reports has an article with some excellent suggestions for protecting children around televisions, including:

• anchoring the furniture holding the television

• keeping toys, food, and other temptations off the top of televisions and other tall furniture

• watching for recalls of carts and furniture that you may be using for your television

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The San Diego Union-Tribune tells the story of a school lock-down when administrators panicked over an 11-year-old student's home-made motion detector.  The device, a Gatorade bottle with electronic components attached, apparently looked enough like a bomb to panic clueless administrators.

If my child were at this school, I would be very concerned that administrators at a self-named tech magnet school think an 11-year-old can make a bomb out of a Gatorade bottle.  If I were a taxpayer, I would be irate that it took the fire department three hours, a robot, X-rays and a search of the parents' garage to decide that it was not a bomb.

The final irony is the statement by the fire department spokesman that the authorities are recommending counseling.  Counseiing?!!  But of course.  We don't want to encourage experimentation or independent thinking, do we?  Especially in a school dedicated to technical creativity and experimentation.  

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In a rare demonstration of common sense, Texas legislators recently enacted a law requiring school administrators to consider several mitigating factors in determining punishment for students.  The hope is that administrators will start to differentiate between Cub Scout camping utensils and dangerous knives.  This USA Today article also highlights Florida's new law following the same trend.

On the other side of the pond, adults are headed the opposite direction. The UK Scout Association has advised that Scouts no longer bring their knives on camping trips "unless there is a specific need." Because we all know that campers never need knives, and boys never need to practice new skills. 

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A teenager in Texas died last month from swine flu.  What struck me about this particular report is that he also had an MRSA infection at the time.   Last year, a report in Pediatrics magazine noted a five-fold increase in flu deaths where a child also had MRSA.  Given the prevalence of MRSA in many communities, youth-serving organizations need to be as alert to the symptoms of MRSA as to flu symptoms.

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The CDC has issued an updated bulletin for early childhood programs on how to respond to an outbreak of the H1N1 virus.  At the head of the list is vaccinations, both ordinary flu and H1N1 (when available) for staff.  Next, the CDC recommends having staff and children stay home for at least 3-5 days after exhibiting flu symptoms.  The CDC also recommends frequent health checks, separating staff and children who exhibit flu symptoms, and renewed attention to environmental cleanliness and handwashing.

The most difficult recommendation to follow is likely to be having staff stay home for at least 3-5 days, or longer if the flu symptoms persist.   Few schools or child care centers have extra staff sitting around, and finding substitutes on short notice for sick staff members will be a constant challenge.  Groups will have to find creative solutions this flu season, whether banding together to share a pool of on-call, trained substitute teachers, or just hiring an extra staff person or two in anticipation of the inevitable illnesses over the next few months.

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Speaking of bullying, DeKalb County has issued a report of its investigation into the suicide of 11-year-old Jaheem Herrera.  His mother filed suit last spring, arguing that the child killed himself because of bullying at school.  The school system hired a respected retired judge to investigate the situation.

One controversial aspect of the judge's findings is the possibility that the child's suicide was related to domestic violence that he witnessed.  Apparently, his mother's boyfriend has a documented history of abuse toward his mother.  The mother's attorney called the abuse a "non-issue," and said that it had no bearing on the case.

It is possible that the abuse had nothing to do with the child's suicide, but it certainly is an issue.  The mental health research is overwhelming that children who witness domestic violence experience higher rates of depression, anxiety, and aggression that children who do not.  See also here, here, and here.

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The Department of Justice has issued a report about bullying in schools.  It is part of the COPS series, so is geared toward school resource officers, but has some good information for administrators as well.  Some of the research that it cites suggests that a principal's involvement in addressing the problem contributes to fewer incidents. It also recommends such common-sense strategies as increasing supervision in "hot spot" areas, and perhaps even redesigning the environment.

I disagree with one strategy, which is "developing a comprehensive reporting system to track bullying and the interventions used with specific bullies and victims."  It is a good idea in theory, but, if not done effectively, will just provide ammunition for an opposing attorney in a lawsuit.  Like any school policy, do not create the policy unless you are going to follow and enforce it.  The only thing worse than no policy is a well-written policy that no one follows.

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I got some good news last week that I want to brag about just a little bit.  Two years ago, my client, Laurelbrook School, was sued by the U.S. Department of Labor, which charged that the school's vocational program was just a pretense to allow the school to benefit from the students' unpaid labor. We had a seven-day trial (2 day in August 2008 and 5 days in April 2009).  Last week, the judge ruled in favor of Laurelbrook, holding that its vocational program is valid and benefits the students more than the school. 

You can read the order here.  This was one of those good wins that keep idealistic lawyers in the profession.

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A teacher accused of having unauthorized prescription drugs in her car at school has won dismissal of the charges.  She had been charged with having Xanax without a prescription.  She produced proof that the car had been in the shop for a month, that other people had driven it, and that she was drug-free.  In the face of all of that evidence, the District Attorney said only that he didn't think he could prove the case beyond a reasonable doubt.  Hardly a gracious statement to an innocent teacher who probably will be paying off her attorney fees for quite a while.

The saga started in February, when the school superintendent of the Houston school district sent campus police with drug-sniffing dogs to search the cars in all employee parking lots.   The searches netted quite a few teachers, including Ms. Herrick.  It would be interesting to see empirical evidence of how many of the teachers charged in that sweep eventually were convicted.  I suspect that the damage to employee morale and lost efficiency from suspending teachers over unfounded charges significantly outweighed any benefit.  

At the time of the searched, a school district spokesman said that the district was treating the employees the same as it would treat students charged with the same offenses. Exactly -- maybe the district should rethink its entire policy of having zero tolerance become zero judgment.

Hat tip: Overlawyered

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There are some very good new resources for dealing with swine flu.  The CDC has published a new website for child care providers.  The Department of Health and Human Services and the CDC have combined to create a checklist for day care centers and preschools.   The American Academy of Pediatrics has a similar publication.

Although these resources are geared toward child care centers, every youth-serving organization should review them.  They offer good advice and common-sense suggestions that will help you continue your program while protecting your clients.

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The latest problem that day care centers, schools, and camps need to know about is swine flu.  The illness is spreading, and may become our next epidemic.  Like so many illnesses, children are at high risk.  There is no effective vaccine, and only limited treatment options.

You can take some common-sense precautions to hep protect your clients:

*  Enforce rigorous hand-washing protocols.

* If children are sneezing and coughing, anyone who comes into contact with them must wash their hands before touching anyone or anything else.

* Children who exhibit flu-like symptoms should be isolated from the general population and sent home with parents as soon as possible.

* Check with your local or state health department to learn what specific precautions authorities are recommending for your area.

* Monitor the CDC website for updated recommendations

* Watch websites related to your industry, such as the American Camping Association's summary of  precautions.

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The saga of the teacher arrested for requiring a child to eat food he had thrown into the garbage can passed another mile stone last week, when pre-trial mediation failed.   The teacher's lawyer said that they had been unable to reach an agreement with the child's family.

The story started a month ago, when parents accused Anne O'Donnell of forcing their 5-year-old son to retrieve chicken nuggets and a banana that he had thrown into the garbage and then eat it while she watched.  Police arrested her for risk of injury to a minor, and the story was widely disseminated over the Internet.

According to another local story (now behind a paid firewall, but summarized on Findlaw), the teacher claims that she merely retrieved the banana and asked him to peel and eat it.  That version is much less incendiary, but the parents apparently are not buying it.  It is understandable that parents would believe their child's version of events, but it often is difficult to understand what a child is describing, and even more difficult to question children without skewing their recollections.  

This is one case where an objective adult needs to step in and view the evidence rationally.  Let's hope it happens soon.

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A Nashville school district has fired three employees after discovering that a middle school teacher was hired despite an outstanding criminal warrant for child molestation.  This story illustrates the pitfalls of relying too heavily on routine criminal background checks.  The accused teacher, Ronald Boykin, had no criminal conviction, but had been wanted for two years in another city in the state.

According to news reports, the district fired the employees for lax hiring practices.   Apparently Boykin actually noted on his application that he was under criminal investigation, although it is not clear whether he specified what was being investigated.  The district employes also failed to re-check his application when he transferred from a support position to being a teacher.

The first line of defense in any youth-serving organization is a thorough application  interview.  One of the best resources on screening employees, including how to conduct an interview, is the CDC's publication about policies and procedures.  It is free, and available for download here.  

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A former teacher's aide has sued an 11-year-old boy for colliding with her as he was running for ice cream.  Her attorney says, "It's a legitimate case.  It's not silly."

I'm glad he cleared that up.

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In late April, the U.S. Supreme Court will hear arguments in a suit brought by a teenager who was strip-searched at her school by staff members looking for contraband . . .  Ibuprofen.  Prescription-strength, but still Ibuprofen.  They did not find anything.

The brief for the school is very well-done, and almost successfully obscures the central fact that a school administrator ordered a strip-search for . . . Ibuprofen.  Of course school administrators have a challenging job trying to keep illicit drugs off their campuses.  But the fact that a job is challenging does not relieve an adult of the obligation to exercise some judgment.  Not to mention common sense.

I cannot figure out why this case did not settle somewhere along the way.  Even if the school system wins its appeal to the Supreme Court, it will have spent an obscene amount of money and endured withering PR to defend an employee's abysmal lack of perspective. Because, for all of the rhetoric and legal arguments and evidence, it all comes down to two simple facts.

Strip search.  Ibuprofen.

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In December, I blogged about the Wisconsin appellate decision holding that cheerleading is not a "contact sport," as the  negligence statute defined it.  The Wisconsin Supreme Court has disagreed.  In its opinion, the court held that the fellow student who had failed to go to his proper spot could not be held liable for negligence.

This is a solid, common-sense decision.  Clearly, the state legislature intended to  shield individual students from negligence claims by fellow athletes.  High school sports have some unavoidable dangers, including the fact that high school students sometimes lack coordination, skill, and even ordinary judgment.  Most parents believe that the benefits of sports outweigh those risks.  When a student accidentally injures a fellow athlete, the law does not need to be involved.

Hat tip: Sports Law Blog

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The U.S. Supreme Court's ruled last week that  a student who has been sexually harassed can sue the school and individual administrators under 42 U.S.C. § 1983.  There has been plenty of legal analysis of the decision, so I decided to blog about the underlying problem of child-on-child abuse.

That particular case started when a kindergarten child told her parents that other children were coercing her into exposing herself on the school bus.  The parents were not satisfied with the school's response, and eventually sued.  This case is rare only in that it made it all the way to the Supreme Court.  Child-on-child abuse in youth organizations actually is more common than abuse by adults. The problem for supervisors is knowing how to respond.

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An excellent post on Outdoor Ed Community has some information that you should pass on to everyone in your organization who might ever need to perform CPR.  It discusses recent research in "agonal breathing," or gasping and moaning sounds in people who don't have a pulse.

The important take-away for us is that these breathing sounds are not adequate breathing, and no one should stop or delay CPR thinking that the person is breathing on his or her own.

The American Heart Association has more information about agonal breathing here and here.

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The Florida ADR Law blog has an interesting post about a recent decision by the Florida Supreme Court, which held that liability waivers that parents sign for their children to participate in commercial activities are not enforceable.   The court reasoned that the right to  recover for injuries is personal to children, and that parents do not have the authority to waive that right before a child sustains injuries. The court cited a long of list of other states that follow the same rule.

The court's ruling is sure to be controversial on several fronts.  

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At the Child Safety Blog, I found a fascinating article in the Chicago Tribune about the difficulties that diabetic students face in schools.  It seems that best medical practice, which encourages students to monitor their blood sugar frequently and respond quickly to the readings, is at odds with school protocol requiring that nurses supervise those activities.  Problems arise when nurses are not available, or when students need to act quickly.

In my experience, the troublesome school policies are driven by (1) rigid adherence to no-tolerance drug policies, and (2) fear of litigation if anyone other than a nurse handles medical issues.  I supposes it is fitting, then, that it sometimes takes the threat of litigation to get schools to adopt common sense protocols for diabetic students.

The Internet has quite a few resource for parents and schools dealing with this issue:

•  The National Diabetes Education Program, a joint project of the National Institutes of Health and the Centers for Disease Control and Prevention, has an excellent publication for school personnel, as well as a wealth of information.  
• The American Diabetes Association website has a page about "Legal Rights of Students with Diabetes."  
• Two helpful websites are Pediatric Education for Diabetes in Schools and Children with Diabetes.  The latter site has some sample IEPs for diabetic students.  
• Finally, the State of Washington convened a task force that published helpful guidelines, as has New Jersey, and the Seattle school system has put its policies online.

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A student in Warner Robins, Georgia, discovered the perils of (a) using very bad judgment, and (b) being truthful about the error.  A middle-school student brought an unloaded gun to his school, hoping to intimidate a boy who had been bullying him.  When word of the gun spread, he panicked and threw the gun into some bushes in front of the school.  

Sent home early by investigators, he told his mother about the gun.  She did the responsible thing and took him back to the school to show the school resources officer where he had thrown the gun.  In return for his assistance, he spent the night in detention.

Yes, it was a serious misjudgment that had to be treated seriously.  But there does seem to be an element of over-reaction in sending him straight to detention.  And exactly what did the school do about that bully, by the way?

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A Wisconsin appellate court has decided that cheerleading is not a contact sport.  The Marquette Law School faculty blog explains that Brittany Noffke fell during cheerleading practice and suffered a head injury.  She sued the fellow cheerleader who, she says, failed to properly spot her during the maneuver.  The defendant, Kevin Bakke, claimed that he cannot be sued for mere negligence, under a Wisconsin statute governing contact sports.  That statute allows suits only for reckless or intentional conduct.  The Wisconsin court held that, because cheerleading does not involve contact between opposing teams, it is not a "contact sport."

The Wisconsin Supreme Court has granted review of the case, so the question is still alive.  It seems to me that the "contact sports" statute recognized that some activities, by their very nature, assume the risk of negligence by competitors and team members.  After all, there is no question, for example, that basketball is a "contact sport," and that a player could be hurt by a member of his own team chasing a missed free throw.  It is hard to understand how that player warrants more protection than a spotter on a cheerleading squad.

You can find more discussion of this decision at  the Wall Street Journal Law Blog and the PrawfsBlawg.

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A professor at Harvard Medical School has suggested that parents are over-reacting to food allergies, and that children need some exposure in order to build up their tolerance to various foods.  Dr. Nicholas Christakis believes that many parents' reactions to the possibility of nut allergies are irrational and overblown.  While schools cannot disregard parents' concerns, administrators certainly can help educate parents so that they can put the risk into perspective.

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A school principal in St. Louise has been convicted of a misdemeanor for failing to report possible abuse.  Mr. Sirna was investigating the claims, and believed that he needed to have more information before calling police.  The prosecutor, jury, and judge disagreed.

I am sympathetic to the desire to investigate claims in-house, and am skeptical about the wisdom of the "call first, investigate later" motto.  Even though I have worked as a prosecutor and social worker, I am not convinced that child protection workers or even police investigators can investigate a claim better than an experienced school principal.  But the law is what it is, and most mandated reporter statutes do not leave much leeway for internal investigations before reporting a child's claims.  Don't put your career on the line -- call first and investigate later.

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This blog deals so much with injuries and good intentions gone bad that it's nice once in a while to read a completely positive story.  This article is a heart-warming story about an Atlanta-area teacher with Tourette's Syndrome who inspired a movie.

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Scott Carroll and Mark Hoekstra have published the final report of their ground-breaking and controversial  study into how domestic violence affects, not only the children in the home, but those children's classmates.  The New York Times highlighted the working paper  this past summer, and it has reverberated ever since around the Internet and among social services professionals.

The study concluded that children from families filing domestic violence claims "significantly decrease their peers' reading and math test scores and significantly increase the misbehavior of others in the classroom."  Thus, "any intervention that reduces family conflict may well have larger positive effects than previously thought."

This study has profound implications not only for schools, but for public policy.  I generally dislike calls for public funding of this or that pet project, but child abuse prevention is one area that needs much more money, both public and private.  If the implications of domestic violence are as profound as this study indicates, then proven programs that reduce that violence are a wise, even necessary, investment.

Hat tip: Children and the Law Blog

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Under the category of things that adults know that children don't, or maybe difficult life-lessons learned, we have this article about a student who lost his thumb from a prank.  Apparently, the students at this middle school enjoyed slamming shut open lockers, forcing the other student to enter their combinations to reopen the doors.

In this particular case, the student unfortunately had his hand partially inside the locker when his friend kicked the door shut.  The door severed the student's thumb.  The thumb and student were taken to the hospital, where he is recuperating.  There is no word on whether attempts to reattach his thumb were successful.  Or, the inevitable second question, whether his parents will be consulting a lawyer.

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This holiday week seems a good time to consider the arguments from these experts that children need more free time.  The psychologists quoted in the article worry that children are losing the opportunity for unstructured time to explore and learn about their world.  They make a compelling argument that, as Kathy Hirsh-Pasek phrased it, "Play equals learning.  For too long we have divorced the two."

It is difficult for schools and preschools to leave children with unstructured time, particularly in this age of No Child Left Behind and standardized tests.  I understand the need to make certain that children actually are learning, but we do seem to be losing a lot of creativity in the process.  Free time and recess may turn out to be just as important as history or science class.

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Another study confirms conventional wisdom -- to get kids to eat more whole grains, sneak them into their diet.  A team at the University of Minnesota found that when school lunch rooms gradually added healthier flour to their breads, the kids did not notice the difference.  The students only started throwing the bread away when the percentage of whole grain flour reached 70 percent.

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The CDC says in a new report  that food allergies in children rose by 18% from 1997 to 2007.  It lists the most common allergies, and notes that children under 5 are more likely to have allergies than older children.  (Hat tip: Child Safety Blog)

The report also says that 4 out of every 100 children has a food allergy, a fact that every organization serving food to children needs to take into account.  The USDA has several helpful fact sheets  with suggestions for accommodating food allergies in camps, day care centers, and schools.

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A day care worker in Texas was arrested after admitting to biting a child to teach him, she said, not to bite other children.   Naturally, the parents are "seeking legal representation." 

An earlier report of the incident includes a statement from the day care director.   Most lawyers advise their clients not to talk to the media, because statements you make can be used against you if the matter ends up in court.  The catch is that it always hurts the center's reputation when the only words a reporter can quote are "No comment."

I recommend that youth-serving organizations respond to media inquiries with four statements: (1) always, always, always express concern for the child, who is, after all, your primary responsibility; (2) identify any steps you have taken that can be made public (i.e., suspended the worker pending investigation); (3) always make clear that you are cooperating with authorities; and (4) explain that you cannot comment further about an ongoing investigation.

Resist the temptation to explain everything you know to a reporter.  Too much explanation will come back to haunt you.  You do need to establish your concern for the children in your program, but any more details need to wait until you have all of the facts.

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Yet another expert report warns against yet another common (and educational) classroom tradition. The American Academy of Pediatrics has issued a policy statement warning against nontraditional pets in homes with children under 5.  The report also warns against taking children younger than 5 to petting zoos and other public places with exotic animals.  Although the report says nothing about classrooms, presumably the logic would apply to preschools and day care centers.

An AP article summarizes the reasons for the warning

Besides evidence that they can carry dangerous and sometimes potentially deadly germs, exotic pets may be more prone than cats and dogs to bite, scratch or claw — putting children younger than 5 particularly at risk, the report says. Young children are vulnerable because of developing immune systems plus they often put their hands in their mouths.

The list of pets that the AAP considers to be "nontraditional" includes turtles, hamsters, baby chicks, and hedgehogs.

Hat tip: DC Metro Area Personal Injury Law Blog

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A recent issue of Pediatrics journal reports an interesting study of scald burns in young children.   The study's authors found that a surprising number of young children were injured from getting hot liquids out of a microwave, while others were scalded by an older child carrying or cooking hot liquid.

Not surprisingly, the authors recommend close supervision of young children and further studies.

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This recent story from New Jersey illustrates a growing problem for schools, day care centers, and other organizations where children gather.  Methicillin-resistant staphylococcus areus (MRSA) infections are becoming more common, and more resistant to traditional antibiotic treatments.   We are seeing more lawsuits involving MRSA, usually based on claims that a child contracted it because the center (a) allowed infected children or staff members to continue attending the facility, or (b) failed to adequately disinfect common areas.

Some of the lawsuits are based on misconceptions, such as a belief that anyone suffering from MRSA should be quarantined.  The Centers for Disease Control has a very helpful webpage outlining what schools and other organizations can do to prevent and/or respond to MRSA.  Many state and local health departments also have pages on their websites.

Because the infection is becoming so common, be sure that you are taking precautions recommended by the health departments in your area.  Educate yourself about the initial symptoms, and what your licensing agency requires as far as reporting cases to health authorities and/or notifying other parents.

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