KBS Reference Desk: Liability Under Guardian Plans

Q: Last month our school board approved the implementation of a guardian plan to arm certain employees in response to emergency situations. After reviewing recent school shootings across the nation, I have seen instances in which guardians have actually run away from an emergency or have sheltered in place themselves (e.g., hiding in a closet) rather than responding to the emergency. How can we ensure that this does not occur at our school? If it does, would we be liable to any victims from the emergency?

A: Comprehensive tactical training is the best way to prevent these types of responses from your guardians. While the Texas Education Code would likely provide guardians immunity for their actions while acting in the course of their employment, a creative plaintiff’s lawyer may attempt a claim under a Section 1983 theory of liability pursuant to federal law.

With regard to state law claims, the District (and its Board of Trustees) have governmental immunity under Texas Civil Practice & Remedies Code section 101.051 for any claim involving personal injury to an individual. Moreover, a school district employee, as guardian, will enjoy similar immunity under Texas Education Code section 22.0511, subject to some limitations. The Code grants broad immunity to school employees for any act “that is incident to or within the scope of the duties of the employee’s position of employment and that involves the exercise of judgment or discretion…” Hence, immunity may fail if an employee’s action was “ministerial” rather than “discretionary.” Courts have held that if a rule or policy prescribes the duties to be performed “with such precision and certainty so as to leave nothing to the exercise of the actor’s judgment,” then the act is ministerial. Thus, it is advisable that guardian plan procedures allow for some judgment and discretion by the guardian to maintain immunity.

The federal civil rights statute (Section 1983) provides potential liability to school districts/boards who “under color of state law” enact an official policy, custom or practice that deprives a citizen of a right protected by the constitution (such as bodily integrity). 42 U.S.C. §1983 (commonly referred to as “Section 1983 Claims”). For a school district itself to be liable, the harm to the individual must be directly caused by the official policy or practice of the entity. Hypothetically (since it has not been litigated before), the parents of a child who has been injured by a gun at a school which authorizes employees (other than commissioned law enforcement) to carry firearms could attempt to make a claim that the policy itself (i.e., the guardian plan) carried with it inherent safety risks to children. A potentially vulnerable area is failing to properly train, such that having “untrained” guardians becomes the “custom and practice” of the district.

Note that personal (or individual) liability also exists in Section 1983 claims, subject to “good faith” immunity. Plaintiffs have successfully sued individual school employees when the employee “knowingly causes” the deprivation of a student’s rights or has actual knowledge of a violation of a student right and responds with “deliberate indifference.” A guardian who has actual knowledge that a student’s right to bodily integrity is in jeopardy (i.e., an active school shooting is occurring) and responds with “deliberate indifference” (e.g., hiding in a closet, running out of the school, etc.) could be subject to individual liability under federal law.

Because no specific litigation has stemmed from the implementation of a guardian or marshal plan in Texas (either under state or federal law), the likelihood of success of a Section 1983 claim is difficult to predict. School safety training recommended for all school guardians (and required for marshals) focuses not only on safe handling of a weapon on school grounds, but also tactical response in such emergency situations. Comprehensive training programs may even place guardians/marshals in staged emergency situations to gauge proper response techniques and give guardians a sense for what will be expected of them in an emergency before they agree to fulfill these duties. Maintaining documentation of this training will be a critical component to defense of any subsequent litigation. You should contact your school district’s attorney to help with formation of your guardian plan policies and procedures. Notifying your district’s insurance carrier of the implementation of a guardian or marshal plan is also critical to have a clear understanding of policy coverage.

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