“Hard cases make bad laws.” – Justice Oliver Wendell Holmes
Justice Holmes’ adage seems to refer to difficult cases, but evidence suggests that he may have been talking about “hard cases” that evoke sympathy.
Few cases evoke sympathy and grief more than the death of a child. Just such a tragedy has led to Senate Bill 213.
On Dec. 13, 2013, 17-year-old Claire Davis was shot at point-blank range by a fellow student at Arapahoe High School. The assailant then took his own life, and Davis died from her injuries eight days later.
Davis’ parents understandably sought to learn what the school might have known about the student shooter. Those efforts were thwarted until recently when Littleton Public Schools approved a plan to release that information in order to avoid litigation.
By contrast, SB 213 would encourage litigation in the wake of such tragedies. The bill imposes upon schools a liability that the law doesn’t even apply to law enforcement.
Our courts, including the U.S. Supreme Court, have repeatedly found that law enforcement agencies cannot be sued for failure to prevent a crime from happening. Public safety is the primary purpose of law enforcement; it’s their area of expertise. Schools leaders, while understanding full well that safety is crucial to learning, must also provide a quality education, put good teachers in the classroom, and maintain sound buildings and transportation vehicles.
School leaders, unlike law enforcement officers, are not public safety experts. Yet SB 213 would hold schools and school personnel to a higher standard than law enforcement.
“Public school parents should have a reasonable expectation . . . that school officials will have taken reasonable care to provide for their (children’s) safety, just as they provide for their education,” Sen. Cadman explained.
The problem for schools is that even if they do take “reasonable care,” they cannot guarantee that a tragedy will not happen. Under SB 213, when those tragedies happen, schools will be sued, even if they have taken “reasonable care.”
Unless SB 213 is amended, it will certainly create more litigation. Whether it will create safer schools is a dubious proposition.