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. 

1 comment:

Cyndi said...

Sounds like a great article. I am very glad that my daughter's school is a bit more laid back about things, though they still overdo it in some ways. Statistically, a child is far more likely to be hurt at school than on a field trip, simply because of the percentage of time spent on both. My daughter has been injured at school on several occasions (never requiring medical intervention aside from a check by the nurse) and it's always been run of the mill playground accidents. No biggie. It happens. I don't blame the school for any of it, but I would not sign away my rights to do so if the school was at fault. No different on a field trip. Thanks again for keeping this issue in the limelight.