Saturday, April 27, 2013

One more thing on waivers of liability in field trip permission slips

My testimony before the Boston School Committee meeting is here.  My testimony starts around 23:35.  Boston School Committee member Mary Tamer's exchange with legal advisor Alissa Ocasio begins at around 3:04:18.  They agreed that Ms. Ocasio would provide the school committee with information about what other Massachusetts school districts do with respect to waivers of liability in permission slips.  As far as I know Ms. Ocasio has not responded to that request yet.  (But the answer is, it varies.  Some districts use waivers and others don't.  However, that is irrelevant.  Other school districts should look to Boston, not the other way around.)

See my other posts on the issue here, here, and here.

Thursday, April 25, 2013

Summary of Massachusetts Lawyers Weekly article on permission slip waivers

Yesterday's post noted that Massachusetts Lawyers Weekly published an article on my fight to have the Boston Public School system remove its waiver of liability from its field trip permission slips.

In response to requests from readers of this blog who do not subscribe to Lawyers Weekly, this is a summary of the article.

Lawyers Weekly nicely detailed my point of view on the issue, which I posted here.  Lee McGuire of the BPS indicated that the BPS is not about to  make any changes (but I note that the Boston School Committee requested additional information from the BPS legal department which, to the best of my knowledge, has not yet been presented). McGuire cited a 2002 Supreme Judicial Court case called Sharon v. City of Newton.  In my opinion McGuire miscited the opinion, which addresses voluntary afterschool activities (in that case, cheerleading), and stated:
We have not had occasion to rule on the validity of releases required in the context of a compelled activity or as a condition for the receipt of essential services (e.g., public education, medical attention, housing, public utilities), and the enforceability of mandatory releases in such circumstances might well offend public policy. . . .  In this case, Merav's participation in the city's extracurricular activity of cheerleading was neither compelled nor essential, and we conclude that the public policy of the Commonwealth is not offended by requiring a release as a prerequisite to that participation.
(Emphasis added.)

Throughout my dealings with the BPS, they have gone out of their way to assure me that my children will not be "penalized" if I choose not to have them participate in field trips because I don't want to sign the release of liability.  They are doing that to get around the potential exception for public education activities stated in Sharon, trying to put field trips in the category of voluntary afterschool activities rather than an essential part of the public school  curriculum.

As the article notes, both the BPS and I agree that the field trips are a very important part of the public education experience.  In third grade at my kids' school, for example, the students study pilgrims.  (The school does a fantastic job of integrating the point of view of Native Americans into the curriculum, by the way, including visits with members of the Wampanoag tribe.)  A central feature of that course of study is a field trip to Plimoth Plantation.   The attempt to put that field trip in the category of an afterschool activity rather than an essential part of the curriculum is flatly wrong, and I  don't believe that a Massachusetts court would uphold that attempt.  But Massachusetts courts have not ruled on the question of whether releases for essential public education activities are binding. 

The article notes that I write on field trip permission slips that I am signing the waiver under protest.  I don't want anyone to think that I am giving legal advice that such a  notation would have any effect on whether or not the waiver is binding.  But if we could get a significant group of parents to do it, the BPS might (or might not) take notice. 

Finally, the article quotes me as saying that "I know that at some point someone is going to slip up and someone is going to get hurt."  I did say that the reporter, but I regret it.  What I should have said is that statistically it is likely that at some point in time some kid on a BPS field trip will be injured because of the negligence of the BPS or one of its partners.  I am fully confident in both the BPS and its partners, but as a civil litigator I know that accidents happen.  My point is that if an accident happens when a child is in the care of the BPS, whether on a field trip or otherwise, that child should have the same rights as anyone else.  The BPS and the students in its care are best protected by insurance, not waivers of liability. 

Wednesday, April 24, 2013

Massachusetts Lawyers Weekly covers my efforts to remove release of liability from field trip permission slips

I posted here about my ongoing efforts to have the Boston Public Schools remove from its field trip permission slips a comprehensive release of liability.  Massachusetts Lawyers Weekly published an article on the issue in the Hearsay column of its April 22, 2013 issue. 

Saturday, April 6, 2013

What seemed like the circular firing squad of cost-savings measures is really a Christmas savings account masquerading as free money

When a friend of mine sent me a tip that the Davenport, Iowa community school district planned to take a one month "insurance holiday," I thought I was all set with a snarky and indignant post.  A month without insurance?  That's self-insurance, not always a terrible idea for a local government -- unless you've already entered into an insurance contract under which  you are required to, you know, pay your premiums and all. 

But as I looked into it, my snark gave way to confusion. 

According to this article from the Quad City Times, the cost savings would be $2 million.  According to its website, the school district has has 15,841 students and 2,200 employees.  I'm not an underwriter, but $24 million a year in insurance to protect 18,000 people (plus various bystanders)?  Keeping in mind that the premium is much lower than the insurance limit -- otherwise, what's the point? -- that's some serious disaster planning.  Unless the district is talking about a holiday from health insurance for its employees, in which case the savings is about $900 a month per employee, which seems like a typical premium. Except that then all the employees will quit (or get too sick to work), which doesn't seem like good long-term planning. 

And then there's this quote from the superintendent:

We have an insurance fund and over the years it has built up. so what we would do is use some of that build up rather than taking money out of our general fund to pay a month’s premium.
So, it's not really a cost-saving measure at all.  Or an insurance holiday.  The district was putting money in an account for insurance, and every month it had a little extra, and the little extra accumulated, and now it's using the accumulation to pay its premiums for a month.  That's simply getting caught up on your accounting and fooling some taxpayers along the way into thinking that your failure to stay caught up all along has miraculously produced a windfall.