Emil Ford Lawyers

Teachers as "gatekeepers" of their students

Subscribe ButtonIt is well established that all schools owe a duty of care to their students. A US decision has recently said that this means teachers are the “gatekeepers” of their students.

The kindergarten class

On an ordinary school day in January 2013, a lady entered a primary school in Philadelphia where Nikki* was enrolled as a kindergarten student. The lady proceeded directly to Nikki’s classroom where she was met by the teacher. The lady asked to take Nikki out of school. In accordance with the school’s policy, the teacher asked her to produce identification and verification that Nikki had permission to leave school. She failed to do so. Despite this failure, the teacher allowed Nikki to leave the classroom with the lady. Later that day, the lady sexually assaulted Nikki off school premises, causing her significant physical and emotional injuries.

*Not her real name

The ‘state created danger’ claim

Nikki’s parents sued the teacher and two government bodies, which are similar to our state Departments of Education. In Australia, the parents would have brought an action for breach of the school’s duty of care. But the parents alleged that Nikki’s constitutional rights had been violated and brought a ‘state created danger’ claim. This is a US cause of action which allowed the parents to argue that by releasing their daughter to an unidentified adult, the teacher, as a state actor, created the danger that resulted in her physical and emotional harm. The teacher argued that he was entitled to ‘qualified immunity.’ This is a US defence that protects public officials (like public school teachers) from liability in certain circumstances.

Image of teacher and school gate



"A US decision has recently said that ... teachers are the “gatekeepers” of their students."

A teacher’s failure to act as a “gatekeeper”

The US Court upheld the parents’ claim on four grounds:

  1. The harm caused was foreseeable and direct.
  2. The teacher’s action of allowing a child in his care to leave his classroom with a complete stranger ‘shocks the conscience’.
  3. The nature of the relationship between the teacher and the student was such the teacher could or should have foreseen that the student would be the victim of the lady’s actions.
  4. The teacher actively used his authority in a way that created or increased the risk of danger to the student. The Court said that in a typical kindergarten classroom, children are closely supervised by their teacher. The Court said that qualified immunity would not protect ‘the plainly incompetent’.

What does this mean for Australian schools?

You may be thinking, ‘what kind of teacher would do that?’. That is exactly what you should be thinking! We all have common sense, which the Court said was severely lacking in this case. But the case serves as a reminder to schools to:

  1. have policies in place, particularly regarding with whom students can and cannot leave school;
  2. make sure their policies are known by all teachers and staff members; and
  3. stick to them!

If you would like to know more about a school’s duty of care or school policies, please contact or .

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