The recent tragic event at Dinwiddie High School in Virginia involving the use of methanol in a chemistry classroom has elevated the legal liability concerns typically found across many of the Science, STEM, and CTE programs nationally in our schools. Let’s spend some time discussing STEM Legal Liabilty in schools.
This heightened sense of awareness about the hazards involved with chemical handling and the entire chemical hygiene program, safety training, standardized operating procedures and the entire risk management framework that exists today in K-12 schools and districts should evolve into a movement to understand exactly what the legal liabilities are for teachers, school principals, and school districts overall.
According to the Pennsylvania Department of Education, there is a common misconception among administrators and faculty members that these type of accidents (e.g., eye injuries, lacerations, amputations, and other permanent injuries resulting from STEM education classroom and laboratory activities) will not happen to them or occur at their school. The reality is that these accidents occur at schools more often than administrators and faculty would like to believe.
Negligence in Schools Opens Questions For Legal Liability
Educators are those people who are responsible for our most precious assets – our children – and are held to a higher standard of safety, compliance, and liability because of this responsibility.
As parents of students in a school system, we trust that the school bus will deliver our children to and from school daily. That the facilities have the proper safety infrastructure, sanitation, and hygiene protocols to ensure that the teaching and learning environment is safer, and that the teachers are properly trained in emergency situations and have the ability to perform a hazard analysis prior to performing any activity that has an element of risk and make a determination if the educational value exceeds the risk, and make decisions accordingly.
This is the gold standard of safety and compliance which involves no accidents, no injuries, no loss, and no missed learning opportunities that are used as a scaffold for student learning and comprehension. Yet, accidents and injuries occur across the nation in our schools, in science, STEM, and CTE programs due to the inherent risks associated with those disciplines, a lack of safety training, and insufficient risk identification and mitigation at the school and at the district level.
Most accidents and injuries in science, STEM, and CTE programs are considered ‘preventable’.
Annually, there are cases involving students who have been accidentally injured or harmed in schools, with the most common injuries reported involving: cuts/lacerations; burns; slips, trips and fall accidents; impact with a projectile; inhalation of fumes; and electric shocks.
90% of these injuries are on the hands or fingers of the injured person, with students suffering these types of injuries approximately 80% of the time.
The leading causes of accidental injury in schools today are glue guns, equipment & machinery, power tools, chemical spills & splashes, and airborne projectiles. Most of these incidents were handled at the school level and did not involve outside medical interventions.
These findings were recently validated by a 2021 national study on STEM and CTE completed by Dr. Kenneth Roy and Dr. Tyler Love in a report called, “A National STEM Education Imperative: What the Data Tells Us”, a fascinating snapshot of our current STEM and CTE programs from a safety perspective.
There are also incidents that require outside medical intervention when students are injured severely and are taken to a hospital for specialized medical care. According to Barrios et al in a 2007 study found that 58% of the time, the injury resulted from ‘a failure to properly supervise students’, which is a Duty of Care obligation. In these situations, there is negligence on the part of the educator or instructor.
Another layer of complication is the impact accidents have on school ecosystems. Many teachers falsely believe that they are protected by what is collectively called the ‘Held Harmless’ clause in their employment agreements and/or teacher union/federation protective covenants because they are certified professional educators. Let me be clear. THIS IS A FALSE ASSUMPTION and often the teacher is found to be negligent because of failures under their duty to instruction, supervision, and/or maintenance.
This is because under common law statutes and interpretations, teachers have a duty of care to protect their students from all reasonable, foreseeable risks of injury or harm. When determining legal liability the standard of care often used is “what would a careful or prudent parent would do in this situation?”. In simple terms, was the educator negligent in that instance resulting in an injury?
Duty of Care Obligations & Legal Liability
“Duty or Standard of Care” is defined as an obligation, recognized by law, requiring conformance to a certain standard of conduct to protect others against unreasonable risk (Prosser et al., 1984). This means that school staff and school or district leaders (supervisors/administrators) are required to actively anticipate foreseeable harm to students and to others in the school. Furthermore, these leaders are required to act to prevent resultant injury or damage.
“The breach of a particular duty owed to a student or others may lead to liability for both the teacher and the school district that employs that teacher” (Ryan, 2001). To meet these responsibilities, teachers of science and STEM are expected to engage in safer behaviors to protect others from foreseeable harm.
An added layer that should be used is the Chemical Hygiene Officer, designated and trained at the school district level. This person has responsibility and accountability to oversee the district chemical hygiene plan and ensure adequate safety training, procedures, and products are in place.
According to industry experts Dr. Roy and Dr. Love, it is imperative for science/STEM teachers and supervisors to understand their duty of care owed to students. While the duty to protect students from unreasonable risk or harm remains the same for each individual, the behavior expected of a teacher to meet the duty of care changes with each situation.
Teachers must act reasonably (objectively measured according to previous court rulings and best practices as recommended by professional associations.) to prevent harm to students. Specific behaviors that constitute meeting the duty of care owed to students are discussed below.
Failure to perform required behaviors can result in students being injured, sometimes fatally. Failure to exercise duty of care may also result in teachers and school districts being sued for negligence.
Teachers need to understand their state’s education law relative to any statutes, regulations, codes, and policies that specify a teacher’s duty of care and any possible consequences of breaching that duty.
Duty of Instruction and STEM Legal Liability
Duty of care requires that teachers provide safety instruction and the appropriate level of supervision during every lab activity that is done within their instructional space (e.g., classroom, laboratory or in the field). Duty of Instruction means that school districts are responsible for providing safety training to employees that may be exposed to hazardous materials and procedures.
– Duty to Notify Students of Safety Practices and Procedures – Teachers have a duty to discuss safety practices with students at the beginning of the school year, establishing the rules by which all experiments will be conducted. These safety practices should be outlined in a safety acknowledgement document which students and parents/guardians sign.
These signed documents should be kept on file for at least the year during which the student is enrolled in the class, and no student should be permitted to participate in a laboratory activity without this document being on file. However, warning students of hazards in the class once at the beginning of the school year is not enough, safety must be reinforced every time students engage in any activity with the potential to cause harm. A review of safety protocols and procedures followed up by a demonstration should take place to teach students how to operate all tools and equipment safely.
Duty to Instruct and ALWAYS model Safety
Students pay attention to what teachers do as well as to what they say. As STEM teachers we have a duty to provide safety instruction and model appropriate safety practices, such as wearing approved, certified, indirectly vented chemical splash goggles and other appropriate personal protective equipment (PPE), for our students.
Teachers should make sure that paraprofessionals and other adults in the room do the same. In addition, teachers must demonstrate for students how to perform various laboratory skills, techniques, and the intended proper use of laboratory equipment in the safest possible manner.
Duty to Warn Students of Hazards
Teachers must explicitly and specifically warn students of the dangers they may encounter during a laboratory activity. This includes reminding students that scalpels and scissors are sharp. While it may seem as though this is common sense, teachers protect themselves by including a written warning on any laboratory materials and making a verbal warning before the laboratory begins. Also, teachers should provide safety signage around the lab, and warn students when they see a potentially hazardous situation created from their novice actions. Teachers should also document safety actions in their lesson plans as an objective and crucial part of their procedures for that lesson.
Duty of Supervision and STEM Legal Liability
Duty to Enforce Safety
All science and STEM teachers must exercise caution when students and student assistants are working with tools of any kind. Personal protective equipment must be worn when using tools and teachers must keep students in their direct line of sight while tools are in use. Teachers must also ensure that students follow all safety procedures at all times. A student who is behaving inappropriately in the laboratory should be removed from that setting, with progressive disciplinary consequences to follow. In addition to referencing appropriate laboratory behavior in the safety acknowledgement form, schools should consider including a description of proper behavior in the laboratory in their Code of Conduct.
Teachers have the sole responsibility for the laboratory activities that are carried out in their instructional spaces; therefore, teachers must never leave their students unattended while any laboratory activity is in progress. Even if another adult (such as a paraprofessional, a specialist, or a substitute teacher) is present, unless that adult is certified in science education and has received annual safety training, the adult must not be in charge of a class engaging in a laboratory activity.
Laboratory activities or science projects that are assigned for completion at home should be reviewed by teachers to be certain that they can be conducted safely and, if applicable, that students have the necessary personal protective equipment. Teachers may be held liable if a student or family member is injured by an experiment that the student was assigned to complete at home. These activities should be reviewed with parents/guardians to ensure that necessary supervision may occur.
Duty of Maintenance
– Inspect for Safety – Teachers should inspect equipment prior to, during and after laboratory activities to ensure that they are in proper working order. Students should be asked to report any equipment that is not functioning properly, with no fear of punishment. Teachers should make sure that they perform any demonstrations and lab procedures themselves before doing them with their classes in order to ensure that they are aware of any and all safety precautions that should be taken.
– Maintain Equipment – Teachers have a duty to make sure that personal protective equipment and engineering controls are operating properly and meet manufacturer’s specifications, as well as OSHA specifications (or state health and environmental safety office specifications for non-OSHA states). If a piece of equipment is not functioning properly, it should be tagged and locked out of operation. The equipment should be repaired or replaced before being used again.
Negligence or Recklessness
In some situations, a teacher or administrator may be sued for recklessness rather than for negligence. A claim of recklessness suggests that the defendant was aware of the risk of substantial harm but engaged in the behavior anyway. In 2014, a science teacher conducted a demonstration in which she poured ethanol on a student’s wrist (with the student’s permission) and set it on fire, claiming it would burn the alcohol without injuring the student (Mack, 2014). In this case, the teacher was charged with criminal recklessness.
Both negligence and recklessness charges can result in substantial compensatory damages, but recklessness charges can also result in punitive damages in some states. Even if the teacher or administrator does not face legal consequences of negligence or recklessness, a breach of duty of care may result in termination of a teaching position or revocation of a teaching license.
The duty to maintain a safer science and engineering instructional space is shared by teachers, administrators, school boards, parents, and students. Teachers and administrators need to communicate frequently with stakeholders in order to ensure that student safety remains a school priority.
Safer Learning with Minimal STEM Legal Liability
Teachers can often achieve safer laboratory experiences and show documented evidence of meeting the Duty of Care by using the following three-step approach to activity and program planning. It is as simple as evaluating the educational benefit versus the potential hazard or risks involved.
1. Hazard Analysis:
A hazard analysis is a list of potential sources of harm (hazards) to persons, property, or the environment. An effective hazard analysis focuses on the relationship between the worker (student), the tasks, the materials used, and the work environment. Information for the hazard analysis may come from Safety Data Sheets, GHS compliant chemical labels, manufacturer’s specifications on tools, professional organization practices and other resources.
2. Risk Assessment:
Using the hazard analysis, a risk assessment takes the results of the hazard analysis to determine the possible dangers to human health, safety, or the environment. In other words, based on the hazards, how much of a danger is this activity going to be in the classroom? Factors associated with risk assessment include 1) Probability of harm: When considering the hazards, what is the likelihood this hazard may occur? and 2) Severity of harm. Will the hazard cause property damage, minor injury, severe injury, or death?
3. Safety Actions:
Through the hazard analysis and risk assessment, it can be determined which safety actions need to be implemented to mitigate the risks as much as possible. The Center for Disease Control (CDC) and the National Institute for Occupational Safety and Health (NIOSH) have created a hierarchy of controls. Based on the hazard analysis and safety actions, activities can be evaluated to determine how the risk associated compares to the instructional value of the activity. Please see reference below:
Safer, Legal, and Better Professional Practices
To provide and maintain a learning and working environment for students and staff that is as safe as possible, NSTA recommends school district officials, including administrators, principals, assistant principals, science supervisors, and superintendents:
- Review existing school or employer insurance policies to ensure adequate liability insurance coverage for laboratory-based science instruction;
- Develop and implement comprehensive safety policies with clear procedures for engaging in lab activities; ensure that these policies comply with all applicable local, state, and federal health and safety codes, regulations, ordinances, and other rules established by the applicable oversight organization, including the Occupational Safety & Health Administration (OSHA), International Code Council (ICC), and National Fire Protection Association (NFPA); and be reviewed and updated annually in consultation with school or district science educators;
- Ensure better professional safety practices by following safety recommendations of established organizations, such as NSTA and its affiliates, the National Science Education Leadership Association, and the American Chemical Society;
- Become knowledgeable of and enforce all local, state, and federal codes and regulations to ensure a learning environment for students and staff that is as safe as possible (Particular attention should be given to hazard prevention, including reasonable class sizes to prevent overcrowding in violation of occupancy load codes (ICC 2015, NFPA 2015) or contrary to safety research (West and Kennedy 2014); adequate number or size of labs (Motz, Biehle, and West 2007). Attention should also be given to replacement or repair of inadequate or defective equipment, and the proper use, storage, disposal, or recycling of biological, chemical, and physical materials.);
- Understand that the number of occupants allowed in the laboratory must be set at a level based on building and fire safety codes; size and design of the laboratory teaching facility; biological, chemical, or physical hazards; and students’ needs (NSTA 2015a; Roy 2006).
*Note: Science classes should have no more than 24 students to allow for adequate supervision during science activities, even if the occupancy load limit might accommodate more (NSTA 2014b). It is equally important to ensure adequate workspace for each student. NSTA recommends 60 sq. ft. for each secondary student and 45 sq. ft. for each elementary student in a laboratory/classroom setting (Motz, Biehle, and West 2007).
Final Thoughts on Legal Liability in Science, STEM and CTE programs
Based on the literature reviews and position statements from trusted professional associations regarding legal liability specifically in science, STEM, and CTE programs across the country, it appears that a more holistic approach is needed from a risk management perspective that involves annual safety training specifically for grade-level and discipline-specific educators, an understanding of how to perform a hazard analysis for selected activities, a review of the existing safety and reference documentation such as safety manuals and chemical hygiene plans, as well as ensuring adequate PPE availability, engineering controls, annual physical inspections and secured storage of items found in these classes.
Many jurisdictions will have parts of a safety program in place but understanding the duty of care obligations and the shared liability that exists in K12 schools is a solid foundation to implement the other necessary complimentary parts of a total safety solution. Teachers — If you ask yourself, ‘Should we be doing this activity?’— the answer is always NO. Use your good judgment and apply your prudent practices with your students and you will provide a safer platform for your students as they continue their journey towards post-secondary and the workplace.
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