Immunity - Education Law
Immunity, an affirmative defense to tort claims against governmental entities, is generally identified as being one of three types: sovereign, qualified, or absolute. This entry examines how those kinds of immunity are applied in educational settings and how immunity may be lost or waived.
Types of Immunity
Sovereign, or governmental, immunity is rooted in the concept in English common law that the king can do no wrong. This notion can be interpreted variously that the sovereign cannot be liable in his own court; that because the king embodies the law, he cannot be brought to court without his consent; or, that because the king, as the patriarchal monarch charged with looking out for the best interests of his subjects, would not harm his subjects, it would be inconsistent with this philosophy for the sovereign to sustain claims against itself.
The ancient concept of sovereign immunity continues in its application in more recent times to federal and state governments in the United States as sovereign entities. School boards, as agencies of state government, share in the state’s sovereign immunity. An argument for sovereign immunity inuring to school boards is that public funds should be spent on educational purposes and not diverted to satisfy tort claims of individual private plaintiffs. Another justification for immunity is based on the principle that because school boards lack the authority to commit tortuous acts, such acts must have been committed by officials who lacked the legal agency to commit wrongs. A final rationale for boards sharing in a state’s sovereign immunity is grounded in the separation of powers doctrine (Yanero v. Davis, 2001).
An additional expression of sovereign immunity occurs through application of the Eleventh Amendment, which removes federal court jurisdiction over suits that citizens of other states or countries bring against states. If school boards are considered “arms of the state,” then they retain sovereign immunity from suit in federal courts.
Qualified, or conditional, immunity is an affirmative defense to tort claims that is available for school officials who perform discretionary functions. As an extension of sovereign immunity, qualified immunity protects officials who act clearly within the scope of their duties (Wood v. Strickland, 1975). School officials and employees retain their qualified immunity against Section 1983 claims when their conduct does not violate clearly established statutory or constitutional rights of which reasonable persons would have known (Lowe v. Letsinger, 1985).
Absolute immunity affords a complete defense to tort claims. State legislators (Tenney v. Brandhove, 1951), prosecutors (Imbler v. Pachtman, 1976), and judges (C.M. Clark Insurance Agency v. Reed, 1975) have absolute immunity. Members of Congress have immunity in speeches, opinion, debates, voting, written reports, presenting resolutions, and generally all legislative functions (U.S. Constitution, Article. I, Section 6, Clause 1; United States v. Ballin, 1892). Legislatures may also provide absolute immunity by statute in specified circumstances, such as where the state of Alabama declared that school board officials are absolutely immune from civil and criminal liability for actions authorized under a statute permitting the use of corporal punishment (Alabama, 2001).
Loss or Waiver
State agencies, including schools and universities, historically have enjoyed immunity from tort claims. Even so, courts recognize situations in which immunity can be lost. A distinction can be made based on the functions that government officials perform. If functions are governmental and part of the purpose for which entities exist, then officials retain their immunity. However, if the functions are considered proprietary or commercial, or if they can be performed by private corporations, officials can lose their immunity. While classroom activities are clearly governmental functions, because actions such as leasing facilities (Sawaya v. Tucson High School District, 1955) or conducting summer recreation programs (Morris v. School District of Township of Mount Lebanon, 1958) may be considered proprietary, boards and their officials can lose their immunity. This governmental-proprietary distinction sometimes appears to be a matter of courts making ad hoc distinctions between the two classifications.
Immunity may also be lost depending on the policy role that governmental entities and their agents perform. Discretionary acts retain qualified immunity, while ministerial acts are not immune. Discretionary acts are those in which officials exercise judgment or discretion, free from that of others. Ministerial acts leave nothing to discretion and are illustrated by cases such as Leake v. Murphy (2005), where educators neglected to follow a state law requiring them to have a school safety plan in place, and by Haney v. Bradley County Board of Education (2005), where school employees failed to follow board policy on school check-out procedures. (In both cases, the school employees lost their immunity).
Another way of losing immunity is under the nuisance doctrine. A nuisance involves any use of property that is dangerous or offensive or that obstructs its comfortable and reasonable use. If school officials create or allow unsafe, dangerous, or offensive conditions to exist that are likely to injure or cause discomfort to individuals who come onto school property or adjoining properties, then their immunity may be waived. Early examples of the application of nuisance doctrine included situations where officials allowed sewage to discharge into a nearby stream (Watson v. Town of New Milford, 1900), where educators allowed a balance beam to become slippery (Bush v. Norwalk, 1937), and where school personnel allowed snow and ice to accumulate and fall from a school roof on to a neighbor’s property (Ferris v. Board of Education of Detroit, 1899).
Immunity can also be waived by judicial actions or legislative enactments, if school boards elect to purchase liability insurance. The theory behind this exception is that the decision to purchase insurance is a signal of intent to waive immunity. The application of this exception to sovereign immunity is uneven. Some states have found that absent legislative authority, a purchase of insurance does not waive immunity, because it cannot be created with insurance if it did not exist without insurance (Barr v. Bernhard, 1978). Other states have adopted the position that a waiver of immunity is effective up to the limits of liability in purchased insurance policies (Linhart v. Lawson, 2001).
Some state courts have abrogated sovereign immunity, and with it, qualified immunity. After the state legislature in Illinois initially abrogated immunity, in 1989 it subsequently had a change of heart and reinstated it, a reaction that is not unusual. According to Keeton (1984), most states have provided consent for themselves and their agencies to have at least some liability for torts. Other states have abolished sovereign immunity by legislative action. Still, it is more common for legislatures to moderate immunity, rather than abolish it completely. Legislatures moderate sovereign immunity by enacting safe-place laws or saveharmless statutes. Safe-place laws place duties on state agencies to construct or maintain facilities in a safe manner such that their failure to do so can result in legal action due to the unsafe conditions. Save-harmless statutes allow agencies to indemnify all damages and costs arising from the negligent acts of employees who are acting in the discharge of their duties. Finally, save-harmless statutes are related to the doctrine of respondeat superior, acknowledging that employers are responsible for the acts of their agents.
David L. Dagley
See also Negligence
- Keeton, W. P., Dobbs, D. B., Keeton, R. E., & Owen, D. G. (1984). Prosser & Keeton on torts 1044 (5th ed.). St. Paul, MN: Thompson-West.
- Oldaker, L. L., & Dagley, D. (1992). The Eleventh Amendment, Its history and current application to schools and universities. Education Law Reporter, 72, 479–501.
- Thro, W. (2006). The future of sovereign immunity. Education Law Reporter, 215, 1–31.
- Alabama Code § 16–28A-1 (2001 Replacement).
- Barr v. Bernhard, 562 S.W.2d 844 (Tex. 1978).
- Bush v. Norwalk, 189 A. 608 (Conn. 1937).
- C. M. Clark Insurance Agency v. Reed, 390 F. Supp. 1056, 1060 (D.Tex.1975).
- Ferris v. Board of Education of Detroit, 81 N.W. 98 (Mich. 1899).
- Haney v. Bradley County Board of Education, 160 S.W.3d 886 (Tenn. Ct. App. 2005).
- Illinois Comp. Stat. 127/§1301(a) (1989).
- Imbler v. Pachtman, 424 U.S. 409 (1976).
- Leake v. Murphy, 617 S.E.2d 575 (Ga. Ct. App. 2005).
- Linhart v. Lawson, 540 S.E.2d 875 (Va. 2001).
- Lowe v. Letsinger, 772 F.2d 308 (7th Cir.1985).
- Morris v. School District of Township of Mount Lebanon, 144 A.2d 737 (Pa. 1958).
- Sawaya v. Tucson High School District, 281 P.2d 105 (Ariz. 1955).
- Tenney v. Brandhove, 341 U.S. 367 (1951).
- United States v. Ballin, 144 U.S. 1 (1892).
- Watson v. Town of New Milford, 45 A. 167 (Conn. 1900).
- Wood v. Strickland, 420 U.S. 308 (1975), on remand, sub nom. Strickland v. Inlow, 519 F.2d 744 (8th Cir. 1975).
- Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001).