Close this search box.

Music Teachers and the Law

Barry E. Morgan | November 2010

    Teaching requires more than a casual knowledge of the legal consequences of interaction with children. Teachers are subjected to intense scrutiny, and knowledge of the law can protect teachers from a litigious society under the illusion that the big payoff is right around the corner as well as a surge in the number of lawyers seeking new and innovative claims to make a living. In Georgia, where I practice, there are more than 35,000 lawyers or one lawyer for every 259 people in the state; most states find themselves in similar situations. Understanding what conduct can and will get you in trouble makes it possible to plot a course to retirement that should be free from an excursion into the murky depths of the legal system.

Criminal Liability

     Most prosecutors take a hard-line position toward individuals who harm children. To understand how easy it is to get into criminal legal trouble, simply examine the system itself. In most states, the criminal process begins with an act which is, or is perceived as, a violation of a criminal law. Police are called and an investigation begins. If the police believe a crime has been committed and that a particular person has committed this crime, they visit a judge and request that an arrest warrant be issued for the defendant. It is important to note that at this stage, the evidence needed to have someone arrested is based upon the standard of probable cause.
Probable cause considers whether there is a reason to believe that a person has committed a crime and also that the committed act is actually a crime. How it works varies from state to state, but in Georgia, if an officer has evidence of a crime and that a specific person has committed the crime, he goes to a magistrate judge to give minimal facts under oath. If the judge believes that’s sufficient he will issue a warrant. These are called ex parte hearings; only the police officer goes to the judge.

Contact with Students
     Many districts have stringent guidelines about touching students or being alone with them. Although such things should be a matter of common sense, we still end up with a surprising number of court cases. I tell teachers to treat their students the way they would want their children treated. It can be difficult for music teachers to show a student how to sit properly or a proper embouchure with such restrictions, so they have to make sure that it’s always in a situation where someone else can back up what they’re saying, such as in an open room with other students around. If you touch a student in your office with no witnesses, then it becomes a matter of your word against their word should an accusation arise.
     The best protection from a false claim is never to be alone with a student. When I evaluate a case, this is something I look for. If someone was in the middle of a room full of people and no one else saw the inappropriate contact, then an allegation of inappropriate contact is not a case I’d go forward with. However, if I have what we refer to in law as a he said/she said, then I have enough to go forward with a case, and it becomes something for the jury to decide. Being alone with a student is the most difficult situation to defend.

Recording Rehearsals and Lessons
     Check the laws of your state concerning audio taping and the consent needed to make such recordings. In Georgia, only one party to a conversation must consent to have a recording made, so the teacher can always be the consenting party. No notice to the other party is required to make such a recording. This would apply to videos as well. There is no better evidence to share after an allegation of improper conduct than an audio or video tape demonstrating that the alleged conduct did not happen.
      If both parties’ consent is required for recording, a student’s age determines whether you must get consent from student or parents, although it is ideal to get both. In Georgia a minor is defined three different ways. For purposes of court proceedings, 17 is the age of adulthood. An 18-year-old is an adult who can be emancipated from his parents, and 21 is considered adulthood concerning alcohol. Any 18-year-olds in a music program can legally sign and enter into a contract, but it is still best to have both student and parents consent. For students under the age of majority teachers only need a parent’s consent. The best way to word a form is “For everyone’s protection, I would request that you allow permission for me to audio or video tape our lessons or classes.”

Assault and Battery

     Assault in Georgia is attempting to commit a violent injury or placing another in reasonable apprehension of immediately receiving a violent injury. Battery is intentionally causing physical harm or making physical contact of an insulting or provoking nature. Think of assault as “I’m going to do something to you or make you think I’m going to do it.” Battery is where you actually do it. In Georgia, it is a misdemeanor offense to have “contact of an insulting or provoking nature.” A misdemeanor offense carries a possible jail sentence of one year in prison and a one thousand dollar fine. Think of the possible definitions for “insulting or provoking contact”; it could be almost anything.
     People sometimes try to defend against battery charges by claiming self-defense or defense of others. To qualify for self-defense or defense of others, it is imperative that the amount of force used in defense is equal to the force or the perceived force being used by the offending party. For example, if you, as a teacher, see a student being struck by another person, you would have the right to use equal force to defend that victim. You would not be allowed to use a gun to shoot that offender to stop the attack. It is important to an adequate defense of any charges when a teacher must use force against a student to defend themselves or others that they take note of all who witness the event, so that independent witnesses who are available can substantiate their version of the events.
     Prosecutors go after thieves every day; typically, they will throw the book at teachers who pilfer on the job. The best course of conduct when dealing with money is to turn that responsibility over to someone else while you supervise it very closely.
     To prevent theft of school property by others, make sure you have a good inventory checkout system. If students use school-owned instruments, there should be a record of what they received. Be vigilant in keeping track of such things. When my older son was in high school, one of the other students in the trombone section had the school bass trombone stolen out of his parents’ car. This student was responsible because the checkout form he signed indicated he was responsible for any loss, theft, or damage.

Mandatory Reporting

     Teachers should know about mandatory reporter laws. In most states it is a crime for a teacher to ignore a mandatory report law. Most are generally misdemeanor offenses, but given our economic situation and how competitive the teaching jobs are now, a misdemeanor conviction can be enough to keep someone from getting a new job.
     My county school board just developed a policy for any child involved in any extracurricular activity. Anything even mentioned to a teacher is to be reported. It’s an extremely strict policy. If a parent casually remarks that he saw a soccer player two weeks ago at the bookstore and thought this student had had something to drink, that teacher is obligated to report that to the administration. If he doesn’t, and the administration finds out about it, then he could eventually lose his teaching certificate. It would have to be pretty egregious for a school board to take such steps, but that’s the big stick they hold over all of these teachers.
     In the state of Georgia school bus drivers are mandatory reporters of people who pass a school bus with its stop sign out. If they don’t report these incidents, then they can be charged with a crime. Bus drivers are supposed to make every reasonable effort to get a tag number or a description of a car. Imagine the difficulty of trying to get all this information down with 45 children screaming on a school bus, but that’s the law. They’re mandatory reporters and try to do it the best that they can. We’ve now started installing cameras on our busses to take some burden off of the drivers.
Civil Liability

     The United States has a dual legal system. Confusion exists because one can be charged with the same thing, for the same conduct, with different consequences under both systems. Each result is independent of the other, with the O.J. Simpson trial being a classic example of the differing results of each.
     Typically when a teacher is sued civilly for conduct toward a student, punitive damages are awarded in an effort to punish the teacher for the misdeed, and also to serve as a deterrent for others who might behave similarly. Civil actions can deal with negligent acts, contract disputes, slander, and libel actions and just about any creative cause of action a hungry lawyer can devise.
     One misunderstood civil case is the McDonald’s coffee lawsuit. Although it seems crazy at first glance, the evidence introduced at trial showed that McDonald’s intentionally heated its coffee hotter than other places under the theory that it tasted better that way. Evidence was also entered that there were several other lawsuits from people who had been burnt, so McDonald’s was on notice that its coffee was injuring other people.
Another odd case is a man who sued Home Depot, alleging that someone had placed superglue on the toilet seat right before he sat on it. He claimed Home Depot was negligent, and they should have checked. A witness came forward indicating the man had made a similar complaint at a different location one year earlier. Lawyers should always exercise due diligence of a claim before filing a lawsuit. The lawyer in this case said the claims of a prior incident were false and offered his client’s participation in a polygraph. After two years of litigation the case was dismissed. The judge indicated that Home Depot was not on notice that the glue was placed on the seat. Lawyers and litigants may be held liable for filing frivolous claims, and lawyers should always investigate a claim.
     If a civil case is proven by a preponderance of the evidence, the judge can award both actual and punitive monetary damages against the teacher. Punitive damages vary depending on the conduct. Years ago, teachers were simply permitted to resign and move on to other school systems. If there is a pattern of the same act conduct, and people have let it go on, that’s what punitive damages address. These can be assigned to both the guilty person and the original school system that let an offender move on. I think that’s why school systems take offenses much more seriously now. If somebody has been accused of inappropriate behavior with a student, he is terminated and the district takes action against teaching certificates.
     My grandfather always said that a good name is worth more than all the gold around, and only you can destroy your good name. Because the standard of proof in a civil action, a preponderance of the evidence, is less than in a criminal case, beyond a reasonable doubt, many civil disputes turn on the credibility of the person. If you become a witness in your own defense, you want the jury to believe every word you say.

Vicarious Liability
     Vicarious liability means that you can be held liable for the actions of others if you have some special relationship to the other person or conspire with others directly to commit an act. This is most common for a music teacher who hires a person to assist with the program. It is important to make sure the employee has no criminal record or history of inappropriate conduct. It is also important to supervise the employee at all times. Many teachers have been held civilly and administratively liable for the conduct of staff members they have hired.
     For example, if a director discovers that a staff member has a quick temper but does nothing to address the problem, if this staff member later assaults a student, parent, or other staff member, the director, as the boss, may be held liable for those actions because the event was foreseeable but no action was taken to stop the problem. When faced with having to correct or investigate the actions of a staff member or parent, all allegations must be taken seriously. Thoroughly investigate the allegations, put all steps taken in writing, and share those writings with an administrator immediately.
     If students engage in physical acts of hazing, they can be held accountable and punished for those acts. However, if the director condones the behavior openly or covertly with a wink and a nod, then the director can and should be held criminally liable for those acts. Both students and directors may also be held civilly liable for psychological acts of hazing under a theory of negligent or intentional infliction of emotional distress. Clearly, the safest path for a director to follow is to have a written no hazing policy that is clear and specific and to follow it up with clear verbal instructions that such acts will not be tolerated. Have an administrator approve these directives so that when a problem arises you have the full backing of your administration.

Libel and Slander

     Libel is a written statement that places someone or something in a bad light. Slander is the verbal equivalent to libel. When a parent asks about a certain instrument you feel less comfortable with, direct the conversation to the positive aspects of the brands you trust without making negative comments about other brands. Remember, you can be sued for anything, and it is difficult to say exactly when something becomes slander or libel. What I tell people is to talk about the brands they like, ignore brands they don’t like, and follow whatever guidelines the school system suggests. In Cobb County, directors aren’t allowed to recommend a specific music store or a certain brand. There is a list of brands that have passed muster, and directors can point people in these directions but cannot recommend one brand over the other.
     If it is necessary to talk about brands a teacher wants to avoid, he should speak in the most general
terms possible and avoid mentioning a specific instrument or company. A good idea is to discuss how instruments that you find at yard sales, pawn shops, or online auction sites may be less expensive, but in general, it’s going to be more difficult to work on those instruments and find people who will repair them. Especially with something bought on an auction site, it may also help to point out that you never know what you’re getting because you can’t handle an instrument before buying. If an instrument needs frequent repairs, it may not be the good deal it seemed to be.

Social Networking Dangers
     Directors should not be friends with their current students on social networking sites. The danger with social networking sites is that if a student posts something about a weekend beer party, any teacher connected with that student can be held liable. Even if the teacher never saw that message, he might be held liable that he at least had constructive knowledge that there was going to be a beer party and failed to take any steps to stop it. You own everything that’s on everyone else’s page, if you are connected with them. If you are not friends, and your students can’t get to your page, they’re not going to see what’s on your page, and you’re not going to see what’s on theirs.
     I know of an English teacher two or three years out of college, with a great record of bringing up students’ test scores. Someone posted a picture of her drinking a glass of wine while on a European trip, and then a second picture with her holding a stein of beer and a caption about going to play beer pong. She didn’t even post those pictures; someone else put those up on the web site and then tagged her. Someone in the community saw it and complained to the principal, who bullied her into a resignation. Her case has since been reopened because they didn’t follow any termination procedures, but those are the dangers of social networking sites.   l