Lawsuit says a lot about choosing your teachers union

Commenter Ema has brought my attention to a follow up story on a lawsuit I wrote about here. In short, the parents of two kindergarteners have filed a lawsuit against a school district and a campus principal over alleged ongoing sexual abuse of the girls by a third kindergartner.

While the story itself is interesting, I thought it would be more interesting to the classroom teachers who read this blog to talk about the significance of WHO the parents are suing. Or more to the point, who they are NOT suing. And why that matters when you choose your teachers union.

There is no classroom teacher named in the Eanes lawsuit. And the truth is, most lawsuits that are filed by parents do not include classroom teachers. Texas' strong immunity statutes protect teachers from most types of personal injury claims, and federal civil rights violations must generally be asserted against administrators or the district itself, not individual teachers. The exception is when the teacher him or herself has committed the violation.

Teachers can also be the subject of a lawsuit if they have committed an actual criminal act against a student. The result is that in the many years I've been doing this, I've seen very few classroom teachers sued by parents. Those that have been sued, were mostly teachers who had sexually abused or physically assaulted a student. In general, classroom teachers simply don't get sued, because they have immunity from nearly all state law claims, and they either have immunity or are not the responsible party under most federal law claims (which includes civil rights claims). Classroom teachers don't need liability insurance.

Administrators, on the other hand, do get sued. Administrators do need liability insurance. The liability insurance provided by the teacher groups is mostly for show. However, because all of the teacher groups have some administrators among their membership (yes, all of them, although some have more administrators than others), the cost of providing that insurance is much higher than it would be if it covered only classroom teachers.

Teacher groups have convinced classroom teachers that liability insurance is necessary, then used those teachers to subsidize the cost of providing that insurance to administrators. Many of the various Texas school administrator groups also provide liability insurance to their members, but the coverage is a maximum of $1 million dollars, not the $6, $7 or $8 million dollars being touted by the teachers groups - although dues amounts are similar.

If administrators are the people with the greatest risk, why are their own membership groups providing less coverage than the teacher groups? Because $1 million is a reasonable amount of coverage. Even the National Education Association (NEA), TSTA's national affiliate, only provides $1 million in liability insurance to its members. TSTA had to purchase an excess policy solely for it's Texas members to keep up with the other Texas groups.

But the bottom line is this: anything over $1 million dollars is like going to the Pacific Ocean to swim instead of the Atlantic Ocean because the Pacific is bigger and has more water. It's true, but it makes absolutely no difference to your swimming experience. And if you don't plan on swimming anyway, you can go to the mountains. For classroom teachers, none of it really matters anyway.

Classroom teachers need legal protection to defend against being fired, against being reassigned, against being accused of misconduct, against unfair appraisals, against unreasonable work demands, and to assert their rights to duty free lunch, to planning periods uninterrupted by meetings, to a limit on paperwork, and to reasonable, clearly stated performance expectations. Classroom teachers need employment attorneys, not liability insurance.

Which brings us to choosing your teachers union. Pick the organization that will provide you the best individual representation for you when your employment rights are violated. The groups vary greatly in how they provide that service, and that's the service you need to pay attention to when you choose your group.

Comments

[March 27, 2007 at 10:25 PM]

While I understand your point, Pam, I disagree that teachers do not need liability insurance. You and I are both aware of suits that would have cost teachers tons of money based on outright lies (and in some cases truths). You cannot overlook that. While those cases are not massive in number, the $4000 or so over a teaching career lifetime that you would spend on the insurance is far less than even ONE suit that a teacher would lose. Would it not cost more than $4000 to defend even ONE case (false accusation or otherwise). It makes sense to have that safety net of coverage for all 30 or so years of a career. It is up to the teacher to decide their own situation for the need, but in today's lawsuit happy world, it makes sense for me (being a male teacher in general). I do second your advice on the employment rights advice. It can make a world of difference when you have a group backing you that knows how to handle the situations as they develop. As always, you know I respect your experience and opinion, so I look forward to your response. Scott

[March 28, 2007 at 04:40 AM]

Scott, you're right that there are many examples of cases of false or at least questionable allegations against teachers that the teacher had to defend - but those were not civil lawsuits where liability insurance was involved. Teachers sometimes have to defend themselves to school boards, to child protective services, to police investigators, or to principals. The attorney to assist with those defenses is not paid by any liability insurance. If a union/organization provides assistance to the teacher, they are using a staff attorney, an employment rights insurance policy, a defense fund, or a non-attorney advocate. But it is - fortunately - not true that actual lawsuits filed against classroom teachers are a great risk. In the few cases where it does happen, there is either a fairly significant abuse allegation, or the classroom teacher was added to the lawsuit "just because," but the real target of the plaintiff is the district or an administrator. In the latter case, the school district will provide a defense in order to protect their own interests. It is somewhat confusing, but the type of lawsuit covered by liability insurance is relatively rare (averaging maybe 0-6 a year in the state against public school educators or districts), and the number of those that involve a classroom teacher is miniscule.

[April 11, 2007 at 07:30 AM]

Pam, I thought your response re: teacher liability insurance was very interesting. In Minnesota, like many other states, districts are required under state law to both defend and indemnify teachers if they're sued while acting in their professional capacity as a teacher. This, of course, completely guts the PRIMARY pitch of the teachers union: "join the union because we'll protect you if you get sued." I think this is both false and unethical, and yet it continues. It's very sad.P.S. www.schoolhousegate.org

[A. Mercer]

Hiya Scott, I saw this comment on your blog sidebar and wanted to pipe in. I think this is an example of the how complicated the law governing teachers can be, and on top of this they vary from state to state. Laws governing teachers and their hiring and firing, rights and behavior in California are found in the Ed Code, the Govt Code, Labor Code/Law, and if it's really serious, you can be subject to criminal penalties. The legal assistance that unions provide is not just for you being sued personally, but for a variety of legal costs that you could face. If you are being fired for misconduct, you could be subject to a variety of legal sanctions including, criminal prosecution, loss of your job (labor and ed code), and loss of your credential (ed code). This is so specialized that at a recent presentation my union local held there were two attorneys, one who was handling the criminal and credential part of it (and he was unusual doing both), and another who did the labor law end of it. Even in a state where you don't face personal liability, your legal bills could bankrupt you if you are facing criminal or disciplinary charges. These are pretty arcane areas of law however.

[April 27, 2007 at 05:40 AM]

Alice, I'll stand by my comments. If the unions pitched their membership dues as covering the kind of legal protections you describe, that would be fine. But they don't. Their primary pitch to teachers is liability protection. And in states that have 'defend and indemnify' laws like Minnesota's, I think that such union behavior is unethical.

[A. Mercer]

Well, I'm not in Minnesota, but where I am, we "sell" the legal protection. Understanding how careful you are in general, and your law background, are you sure that they (unions in Minnesota) aren't being clear that it's the legal bill liability they are covering? All of the cases that I've seen highlighted by the union in California deal with people being brought up what turn out to be rather ridiculous criminal charges and having CTA take care of their criminal attorney bills, etc. This stuff really can vary from state to state but usually the unions are pretty consistent because they are under a national umbrella. I live to learn otherwise though. Is Minnesota an NEA or AFT state or is it a mix? I will look into whether California has teacher immunity laws in my new handy dandy legal guide, lol. Always interesting, and thanks for starting the discussion Pam.

[April 27, 2007 at 06:30 AM]

I think teachers are much less afraid of suing, or being sued by, the district/state. Their focus is on parent and student liability issues. I have lived / worked / been an educator in several different states (VA, NC, IA, OH, MN) and have talked with folks in many, many more. I think I'm pretty safe in saying that in most states that allow unions, the general pitch from unions is liability coverage for lawsuits from parents/students, not covering your legal costs in a dispute with the district/state.FYI, in Minnesota NEA and AFT merged into one: Education Minnesota.

[April 27, 2007 at 06:32 AM]

Pam said it best: "Classroom teachers need employment attorneys, not liability insurance."

[April 27, 2007 at 10:01 PM]

A. Mercer said "where I am, we "sell" the legal protection. All of the cases that I've seen highlighted by the union in California deal with people being brought up what turn out to be rather ridiculous criminal charges and having CTA take care of their criminal attorney bills, etc."All the unions generally talk about those same kinds of cases when they talk specifics. The problem is that they do that at the same time they ar emaking a big deal about the multi-million dollar liability insurance, and it causes confusion. The teachers don't always understand that when they have those riduculous criminal charges made against them, they don't have $6 million dollars for attorney fees. They generally have less than $20,000 for criminal defense fees. While that may be a reasonable amount, it's certainly less than a million dollars, and some groups in Texas have only a $5000 criminal defense fee policy, which is not much. If the teacher missed that point, because they were dazzled and confused by the million dollar plus liability policy, then there's a problem.

[A. Mercer]

First, I wanted to clarify a point about union representation with regards to labor law. In a “closed shop”, as most districts in California are, all teachers pay union dues even if they elect not to become actual members. This obligates the union to represent them in employment matters. Because I mentioned the different areas of union legal representation including employment/labor issues, I didn’t want to leave the impression that you had to join to get this. You would have to in districts where there isn’t a union as the labor representative. What you wouldn’t get is the legal representation for criminal cases. I can’t recall off the top of my head if you would get representation with the licensing board without joining.Next, those are excellent points about the expense of legal fees in criminal trials. If anything they are even higher in California. As I recall the “limit” was $1 million here, and it is not a ceiling, and has been exceeded in some representation cases (based on conversations with a local president, and an article in the CTA magazine).It seems like there isn’t a disagreement about law, but about facts, or how services are being represented, so we will have to agree to disagree on that point. I will point out to Scott that the most frequent legal fear I have heard teachers express is with regards to criminal prosecution, and particularly from male teachers (since I’m in elementary). Last, I recently picked up a text on California Education Law (Kemerer, Sansom, Kemerer), and it had an interesting bit in it. California has immunity from suit for teachers acting in their official capacity, but there is an exception in federal civil rights law as ruled on by the Ninth Circuit Court of Appeals. There is a section granting the right to sue for civil damages based on violations of civil rights in 42 U.S.C. Section 1983. If you are found to have not “followed district/school guidelines” and you have violated someone’s civil rights, you lose your immunity. This is not inconceivable as I’ve worked in places where parents either threatened to sue, or brought in lawyers with regards to alleged racial discrimination in discipline matters. Pam earlier pointed out that administrators are much more likely to get hit with suits, and most of the examples the authors had of this law involved administrators. It is probably rare that I teacher would be hung out to dry using this, but it shows that there are holes in immunity. The interpretation comes from P.B. vs. Koch, 1996, so it applies in California, and since they later cited a case in Hawaii, I’m guessing it applies to the entire circuit. YMMV in other jurisdictions.