This week, Russia ends its official 40-day mourning period for the victims of the Beslan (search) terror attack. While the world remains horrified by the massacre of hundreds of children by Chechen (search) rebels, the incident poses some interesting, if frightening, liability questions for school districts in the United States.
Like every custodian of children, a school district can, as a general matter, be liable for injury to students if it has notice of some potential or impending harm and fails to take reasonable steps to avoid it. The formulations vary from state to state, and the plaintiff’s burden can differ depending on the type of harm suffered.
In recent years, the number of circumstances in which school districts have been found liable for injury to students has increased. For example, school districts have faced liability for the intentional, criminal conduct of teachers who covertly sexually harass students.
It has been widely reported that the U.S. military apprehended an individual in Iraq who possessed two CDs filled with publicly available information on eight school districts in six states. The information included evacuation plans and instructions on how to deal with a crisis.
The Department of Homeland Security (search) has stated that the individual has no known ties to terrorism and has worked with schools in Iraq. At the same time, the individual who possessed the CDs apparently was someone sought by authorities in Iraq, and DHS thought the information significant enough to pass along to the school districts mentioned on the CD. What’s contained in the CDs seems equivocal, but if it poses a threat, that threat is severe.
Statements by some school officials show they believe they should take preventative action, but need more precise information. “It's very frustrating because we weren't told by the authorities which school it was and the information hasn't really flowed down locally to the police or to us,” said John Scavelli, superintendent of schools in Franklin Township, N.J.
Does the law require a prudent superintendent to take a vague warning, combine it with what is known of wider security conditions, and then act?
The answer is, they probably should. This is not a firm answer, but much of negligence law is not governed by statute. Should lawsuits arise from a terrorist incident at a school, the jury will be asked whether a prudent superintendent could foresee a terror attack and take effective precautions. However vague the information, these school districts have received some warning.
Also consider that school superintendents already have the reference point of Beslan. At Beslan, between 17 and 25 Chechen rebels who had traveled from some distance away practically walked into a school, herded students and parents into a gymnasium, and then wired it with explosives. One would have to ignore recent news to not see signs of similar events taking place in the U.S.
For example, the Department of Homeland Security is now investigating an intelligence report, reputedly provided by reliable elements of Russia’s security services, that a group of 25 Chechen terrorists illegally entered the United States from Mexico in July. (The DHS has said repeatedly that it will not militarize our southern border because, they say, there is no evidence of terrorists entering from Mexico.)
Not only does the size of that group approximate the number of terrorists believed to have carried out the Beslan massacre, but according to the report, they chose a point of entry in a mountainous area of Arizona that is known to be difficult for immigration authorities to patrol. This suggests that the group placed a higher value on anonymity than would-be immigrants, who are frequently apprehended, photographed, bused back across the border, and make a successful entry later the same day.
Any school district trying to gauge its liability exposure in this area can take heart in the fact that many of our country’s inner-city schools have succeeded in controlling their entrances through the use of locked doors, police and metal detectors. Additional security measures would likely be required to stave off a Beslan-like threat, but school officials must begin to investigate and implement such measures now.
For as disturbing as these thoughts may be, for these eight school districts, a jury might one day require it.
Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of the soon to be published, "The New Immigration Law and Practice."