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Burden of Proof

Michigan School Shooting: Is the School District Liable?

Aired March 3, 2000 - 12:30 p.m. ET



ARTHUR BUSCH, GENESEE COUNTY PROSECUTOR: We were not looking for scapegoats in this case. We're looking for justice for Kayla. And, ultimately, that justice will be found in a court of law.

QUESTION: The FBI was aware, obviously, of the stabbing incident with this student. What did the school district do in response to that?

IRA RUTHERFORD, SUPERINTENDENT, BEECHER SCHOOL DISTRICT: Well, first of all, I think that one of the things that happens in this kind of environment with the tension and so on, and people throwing words around, that sometimes words are used that may not accurately describe the situation, and I find "stabbing" to be totally out of character.

QUESTION: What would you characterize it as?

QUESTION: Could you tell us what happened?

RUTHERFORD: I would just say that "stabbing is an inappropriate term.

QUESTION: I believe his father said -- used that term.

RUTHERFORD: Well, if his father used it, his father was wrong. That's all I'll say.


ROGER COSSACK, HOST: Today on BURDEN OF PROOF: Michigan prosecutors say they're looking for justice for Kayla Rolland, who was shot and killed by a classmate in her first-grade classroom. But Kayla's father is considering a lawsuit against the school system.

ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

Prosecutors in Mount Morris Township are continuing to build their case in this week's elementary school shooting. Yesterday, they charged 19-year-old Jamelle James with involuntary manslaughter for allegedly allowing the 6-year-old killer access to the .32-caliber semiautomatic gun which was used in the shooting.

Now, James, who faces a potential 15-year prison sentence, lived in the same home where the boy was staying. Now, a well-known Michigan attorney has been retained in this case. Geoffrey Fieger is best-known for representing Dr. Jack Kevorkian. He also represents the family of Isaiah Shoels, who was killed in the Columbine High shootings. The Shoels family is considering a lawsuit against the Jefferson County school system.

The father of 6-year-old victim Kayla Rolland has hired Fieger and may file a lawsuit against Buell Elementary School or the Beecher School District.


QUESTION: Are you concerned about a lawsuit being filed on behalf of the Rollands by Geoffrey Fieger?

RUTHERFORD: Well, in this situation, you're concerned about everything. My main concern now is the bringing together and healing of our community and the support that we put in place to make sure that our staff members are able to function. And not only at Buell, but the entire district. This situation has been a blow to the entire Beecher community and we have counselors in place at all the buildings working with staff members and family members. So if Mr. Fieger -- whatever he chooses to do, he will do.


COSSACK: And joining us today from New York is trial attorney John Q. Kelly; here in Washington, Jerald Newberry, executive director of the Health Information Network of the National Education Association; Stephen Yurek, general counsel of the National Association of Secondary School Principals; and Maria Fernandez (ph). And in the back, Chris Kelly (ph), Tamara Alsson (ph) and Jon Meyers (ph).

John Q. Kelly, let's go right to you in New York. The notion of bringing a lawsuit against a school district or a school for what happened with the killing of this young girl by this young boy, is this a lawsuit that would be successful?

JOHN Q. KELLY, TRIAL ATTORNEY: No, I don't think so, Roger. First of all, with regard to any lawsuit against the school board, under Michigan law, there's governmental immunity. So there really is no basis for an action against the school board. There is individual liability that may attach to the teachers. But under the circumstances of this particular case, I think it would be a borderline frivolous lawsuit if filed at all. COSSACK: OK, well let's talk about -- let's assume for just the purposes of our discussion, because there's not governmental immunity in every state, if you were investigating a lawsuit in this case, what, John, would you be looking for to see whether or not what the school had done or not done. One of the facts we know about, or at least we've been told about, is that this young boy had been in difficulty before; that he was -- had acted out violently; he had, if not stabbed another student with a pencil, certainly had maybe, perhaps, stuck another student with a pencil. These are the facts that we have heard alleged. What kind of things would you be looking for the school to have done?

KELLY: Well, I think the school would have had to see if there was any notices to violent propensities of the child and whether the subsequent actions might be reasonably foreseeable. Schools, ultimately, aren't charged with being the absolute guarantor of the students' safety, they just have to adequately supervise the students. And the only time they may be liable is if there are reasonably foreseeable injuries that proximately result from the inadequate supervision.

But schools, under the law, are not responsible for the impulsive, random or unanticipated acts of the students, and if there were no real danger signs or something that specifically alerted the school to this propensity of the threat that might come to fruition against this particular student they wouldn't be able to anticipate.

COSSACK: And, John -- John Q. Kelly, we know that there are schools that have metal detectors now where students can't get in without going through a metal detector, and the Supreme Court has said that's it's OK for searches of students' lockers in schools.

KELLY: Sure.

COSSACK: One, could you say -- argue, then, that perhaps in this situation, more should have been done: a metal detector or something like that?

KELLY: Well, now, Roger, once again, under the law, that's not a requirement and that's not a duty that falls on the shoulders of the schools right now. Each state, in this case Michigan, if it wants to statutorily change that and make that a requirement of the schools, then they're put on notice and know they have that duty to install those and monitor them, the students, then liability would attach. But under current law, it's not a requirement; it's not something that the school's responsible for.

COSSACK: All right, joining us now by Telephone is Jon Fredrick, a teacher.

Jon, you're a teacher in the classroom. What grade to you teach and how old are the students?

JON FREDRICK, FIFTH GRADE TEACHER: I teach fifth grade, and they're kids that are going from 10 to 11.

COSSACK: All right, I think that those, as I remember, at least many years back with my son, that's kind of a rambunctious age. I would expect that 10- and 11-year-old boys and girls can be aggressive towards each other, can act out towards each other. I would suspect you have your hands full. Describe these students for us?

FREDRICK: Well, of course, each student -- it just varies from student to student. I mean, they all have -- each child has certain needs and, of course, as a teacher, you try to do your best to meet those needs.

COSSACK: Well, tell us, for example, young boys at that age, I would suspect that there's a lot of aggression, perhaps a lot of punching and shoving. How do you distinguish -- or can you distinguish between kids, you know, acting as kids and those kids who perhaps may potentially be giving you danger signs?

FREDRICK: Well, for being a fifth-grade teacher, the one think that I like to do is I like to go back and talk with their previous teachers, check their records to see if there's been a history or if there's certain kids that they should stay away from, and, you know, pretty much that's it -- just being able to get some background information to have a heads-up before they come in your classroom.

COSSACK: All right, Jon, let me give you a -- Jon Fredrick -- let me give you a hypothetical: Two 10-year-olds get into a fist fight and one of them bets a bloody nose; he gets angry and looks at the other kid and says, I'm going to kill you for doing that. What do you do in that situation?

FREDRICK: Well, in a situation like that...

KELLY: Are you talking to me, Roger?

COSSACK: No, I'm talking to Jon Fredrick.


COSSACK: Jon, did you hear the hypothetical?

FREDRICK: In a situation like that, you would more than likely want to bring that up with your administration and let them take care of it, and, of course, if needed, bring the counselor in and let them talk to the kids and see how things evolved, see what we can do to work it out and then take it from there.

COSSACK: Would you -- would there be that notion of taking some statement like that, that a 10-year-old may just make and taking it much more seriously today than perhaps you would have taken it a few years ago?

FREDRICK: I think so. I mean, I think a lot -- you know, I don't think it starts in the schools. I think a lot of that is what goes on in society and that's brought into the schools.

COSSACK: All right, let's take a break.

When we come back, what are schools supposed to do, and how much responsibility does the school have for the acts of its students? Can administrators keep certain children out of the classroom? Stay with us.


Malcolm Ferguson, an alleged drug dealer who was shot and killed by a New York City police officer Wednesday was one of the only two people arrested for disorderly conduct following the Diallo verdict last week.



COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. And, if you miss that live show, the program is available on the site at any time via video on demand. You can also interact with our show and even join our chat room.


RUTHERFORD: The sister of Kayla was in school, OK, because she felt that that was a safe place for her to be and it took her out of the kind of turmoil that she was experiencing with all the things that were going on in her home. And I think that the mother, obviously, felt that it was safe for her daughter to go to school. And I think that is a positive statement about the feeling of safety.


COSSACK: After Tuesday's shooting at Buell Elementary School, administrators are trying to ease parents' fears about returning their children to the classroom.

Police say 6-year-old Kayla Rolland was killed by a classmate one day after a reported playground confrontation.

Jerald Newberry, I want to read you something that was said by the administrator of this school, who said the following, said they recognized -- and I'm paraphrasing here -- that this boy was a problem. The boy, who had been singled out as needed help by a school program, that identifies children with problems, had been assigned to a social worker and had undergone counseling. Quote, Mr. Rutherford said, "We do have a number of support mechanisms in place to assist youngsters that would be defined as high risk or have problems, especially for an elementary school." But, he would not give any details about the boy, or how he was being treated.

You are a guidance counselor, former teacher. What do you do? And how do you single out? And what kind of programs do you put into place?

JERALD NEWBERRY, NATIONAL EDUCATION ASSOCIATION: I think what's obvious to the nation, especially with this particular example, is that the societal problems that children are living in and with, are now coming into our schools.

It doesn't take a brain scientist to figure out -- a brain surgeon to figure out, listening to the situation and the background of this child, we, as a school system, now have to take children who come out of very troubled homes, who have a very few, if no, resources; and, as a school system, figure out how to respond to those children's needs in the school. This administrator is saying that they were making use of the resources that were available. And, if they happen to have a social worker and a counselor, they are much more lucky than there are -- than many school systems that don't have the funding to even have those sources.

COSSACK: All right, John Kelly, civil attorney, you've now heard that programs are in place that we didn't have a while back. Does that mean that the level of care that schools have towards students has risen, and, if they don't follow -- if they don't have that kind of care in place, they could be liable?

KELLY: Well, absolutely, Roger. I think, just by your first guest -- the other Jonathan, I think it was Fredrick, mentioned that, just based on the raised social awareness, based on the catastrophes of the last few years, people see the school place as a place of potential violence also. And certain safeguards have to be in place. And that's a bar that's been raised by the legal requirements, too.

I think you have to look under the specific facts and circumstances to see if there is adequate notice of a potential problem, whether it is reasonably foreseeable, whether the appropriate steps were taken by the school to eliminate any potential threat, and then decide whether liability attaches or not.

COSSACK: Stephen Yurek, you are -- you represent schools as an attorney. Talk to me about the liability that schools feel. What kind of emphasis is now put on avoiding a lawsuit, as opposed to educating a student?

STEPHEN YUREK, NATIONAL ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS: First of all, I want to say, you know in this segment that started off: the schools are the safest place for these kids to be; it's safer than being at in a lot of homes, it is safer than being in the community.

In schools, however, in providing those safe learning environments, are really caught by these activities, you know. Do they increase the security by putting in metal detectors and other things, which could potentially, as John has mentioned, raise the bar for liability in what your standard of care needs to? Do you need -- do you implement programs to profile kids? If you start doing that, there is questions about civil rights violations, and parents area saying: Wait a minute, why are you singling out my child? You know, my child hasn't done anything wrong, even though you might see some indicators that are there in some of the profiling or other things that could possibly be done to pick out these kids.

So, it's a very difficult situation. You know, the more you do, potentially you raise the standard higher and, therefore, it will increase the potential liability because you didn't follow all the things that needed to be done, or you forgot something or you skipped -- you saw something or didn't see something that was there that you probably should have seen.

COSSACK: All right, John, I want to ask you now. We're talking about now identifying problem students. And we are doing it -- one of the reasons we're doing it -- I guess we are doing it for two reasons. One is we want to identify those students for whatever the benefits we can give them, and the other is, you know, we have some obligations, as Steve just told us, to maybe legally protect the school board. So now, you are stuck with that job of identifying the student. I want to go back to my hypothetical of two 10-year-olds get in a fight, and one of them ends up with a bloody nose and says, you know, I'm going to kill you for that. What do you do?

NEWBERRY: Well, let me, first, underscore what Steve said, There were more than 5,000 young people killed in the United States last year and the year before, and it looks as though it will happen this year. What I don't think the nation understands is that only less than 1/100 of those kids were killed in the schools, 99 percent of those kids were killed in their communities and in their homes.

So what we have right now is a nation that has not decided whether or not they want to care for their children. So when we come back to the school environment, we know exactly what needs to be done. We know what the early warning signs are for many, if not most, of these children.

But we need three things, we need smaller class sizes so we can identify these kids early and give kids better attention; we need, within the school, alternative programs, funding to provide alternative programs so a child like this can go into a classroom with two or three adults, and four or five other kids and be taught social kids that you cannot teach on a 1:30 ratio; and thirdly, we need mental health services either in the school or in the community, social workers, psychologists, nurses, who have the one-on-one time.

The schools that have very few mental health resources, right now, mostly one counselor, a ratio of 1:400. Many schools ratio of 1:1200. Many schools have no counselors at all in the elementary level.

When you have those kinds of challenges, and you have a child like this come along, who is there besides the classroom teacher and an administrator to provide that in-depth mental health resources that are needed when you have kids coming from this kind of challenged family.

COSSACK: John Q. Kelly, is it the role of the schools to offer these kind of social training and social skills? or is it the role of the parents?

KELLY: That is more a social question than a legal issue, Roger, but I...

COSSACK: No, it's a legal question, only in the sense of, if you were representing a child, you might say to the school, you know, you should have offered these kinds of classes.

KELLY: You know me too well, Roger. I think there is a certain responsibility on the school to give out a base education, whether it is on the ABCs or the social mores that attach to the requisite age that the child is at and the level they are moving on to in the general population.

Beyond that, though, as I said, the more you raise the bar, the more liability that inures to the schools, and you run into a dangerous area. Then you stop being schools, and all you are doing is insulating yourself from the liability that comes with lawsuits, and you are not teaching anybody anything, and it's a changed world once again.

COSSACK: All right, let's take a break. Michigan law protects school districts from being held liable, unless a plaintiff can prove gross negligence. Could this case end up in civil court? Stay with us.


Q: How many people in the United States die each due to gun violence?

A: Eighty-nine people die each day, 13 of them are children.



COSSACK: Yesterday, U.S. Attorney Saul Green told the "Detroit News" that his office is looking into filing federal firearms charges against the 6-year-old boy who allegedly took the life of a classmate in Michigan. Local prosecutors say such a move is unlikely. What is likely is a number of possible lawsuits.

Steve, I want to talk to you about the dilemma that I think has been offered here this morning, this afternoon, the notion that schools are offering more and more nontraditional teaching services, social services if you will, and as John points out, by doing that, they raise their own bar in terms of liability if they don't offer those social services. As someone who represents school boards, what do you do?

YUREK: It's a major issue, and actually schools are being asked to do more and more today, rather than just educating our kids, they are the social services that most of these kids receive. And the people that are providing these are teachers in the classroom and principals in our schools. And they are not certified individuals in health services or social services that would really be providing these services of human resources or the human services areas were providing these, you know, mental health, behavioral modification, other types of courses. But they are also being asked to do so. And schools are accepting that responsibility, and they continue to accept those responsibilities because they see the kids, I mean, their best interest is those kids, and they want to make sure, one, that they have learned; and, two, that they are in a safe environment. And by doing that, as John has mentioned, they are raising the bar.

COSSACK: Let me ask you this, don't you -- haven't you articulated a problem in the sense that, what you are saying is, teachers are doing things that they're not trained to do, you know, the three Rs. This isn't -- social work isn't one of the Rs. And you are telling me that the teachers are doing these things and they are not particularly trained to do it. Aren't you opening yourself up for more liability, even though it is done in the best of intentions.

YUREK: The potential liability is there. But I don't think that is what is really driving a lot of the decisions that are being made in the schools. It's something that is in there, and they are very concerned about, and especially the principals and the superintendents and the school boards. But at the same time, they also are interested in those kids and making sure they get the best education and the best services that they need.

And if society keeps on saying, you know, we don't have the households or the parents that are doing and teaching, you know, correct social skills, we'll start taking that over. These kids need medical services or other assistance the schools are taking it over and providing these things.

The problem is is that they don't have the funds to do it, and they don't have the training or the people that really should be doing that in the schools.

COSSACK: John Kelly, give me about a 10- or 20-second answer here. By, even though the best of intentions are coming out by the schools, would a lawyer have a cause of action if by saying, look, you meant well, but you didn't have the right people doing it? Therefore, you should have had the right people doing it, we are going to bring a cause of action?

KELLY: In this particular instance.

COSSACK: IN an instance that we just described where students -- where teachers are doing social work rather than traditional teaching?

KELLY: Well, whether a doctor has the best of intentions or a lawyer has the best of intentions, if they screw up and don't do the job properly, then yes, there would be an action for a lawsuit or a civil liability if they didn't do it properly. But when you get into these touchy, feely areas like whether they did a proper social indoctrination or did home checks or things like that, it is just a, you know, it is going to be hard to evaluate and judge things like that, Roger. It is not like determining whether schools had metal detectors at the doors or something. It is just -- it is all going to be subject to interpretation.

COSSACK: OK, that's -- and with that answer, one again, the lawyers are interpreting. But that's all the time we have for today. Thanks to our guests and thank you for watching.

Weigh-in on the Michigan classroom shooting today on "TALKBACK LIVE." That's at 3:00 p.m. Eastern time, noon Pacific.

And we'll be back Monday with another edition of BURDEN OF PROOF. We'll see you then.


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