Legal Trends in Delaware:

Emerging Technology and School Risk Management

Delaware Tort Claims Act, 10 Del. C. §§ 4001-4005

School officials and school districts are generally protected from tort claims and related
causes of action where the following elements are present: (1) the act or omission complained of
arose out of, and in connection with, the performance of an official duty requiring a
determination of a policy or the interpretation or enforcement of statues, rules or regulations,
which involve the exercise of discretion, (2) the act or omission complained of was done in good
faith and in the belief that the public interest would be best served thereby, and (3) the act or
omission complained of was done without gross or wanton negligence.

Delaware’s “Child Victims Act,” 10 Del. C. § 8145

Enacted in 2007, for a period of two years victims of child sexual abuse that occurred in
Delaware had an opportunity to file a civil suit for damages. The “window” for these cases
closed July 10, 2009. However the Child Victims Act prospectively eliminated statutes of
limitations on all civil actions filed in Delaware’s Superior Court which are based upon “sexual
acts that would constitute a criminal offense under the Delaware Code.”

There are no Delaware cases which interpret the Act’s language. However, a literal
reading may lead to the conclusion that school officials are vulnerable to civil suits for sexual
abuse of a child long after the actual incident.

Miller v. Mitchell, 2010 U.S. App. LEXIS 5501 (3d Cir. March 17, 2010)

In this case, students and their parents filed suit against the District Attorney of Wyoming
County, PA because he presented teens suspected of “sexting” with a choice: either attend an
education program designed by the District Attorney’s office, or face federal and state child
pornography charges. Earlier this month, the Third Circuit Court of Appeals upheld the trial
court’s decision in favor of the students and their parents to enjoin the District Attorney’s
actions.

While the focus of this case is on the students’ and parents’ constitutional rights under the
First and Fourteenth Amendments, the Court made specific mention of school officials’
“secondary responsibility in the upbringing of children.” The Court stated, “[I]n certain
circumstances the parental right to control the upbringing of a child must give way to the
school’s ability to control curriculum and the school environment.” Notwithstanding this
support for school officials, the Court did find that the program–which required attendees to
explain why their “sexting” actions were wrong (presumably as a moral and not a legal matter)–
is likely to violate a student’s First Amendment right to free speech.

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New Jersey v. T.L.O., 469 U.S. 325 (1985)

The well-known T.L.O. case established a two-part test for determining the
reasonableness of a school official’s decision to search a student. First, the search must be
“justified at its inception” by the presence of “reasonable grounds for suspecting that the search
will turn up evidence that the student has violated or is violating either the law or the rules of the
school.” Second, the search must be “permissible in its scope,” which is achieved “when the
measures adopted are reasonably related to the objectives of the search.”

Safford Unified Sch. Dist. #1 v. Redding, 129 S. Ct. 2633 (June 25, 2009)

This case builds upon the Supreme Court’s test set forth in T.L.O. In this case, a 13-year
old female student was “strip searched” by a school official based upon the suspicion that the
student possessed weapons and/or drugs, in violation of school policy. The Court found that the
search was unreasonable under the Fourth Amendment, because “the content of the suspicion
failed to match the degree of intrusion.” This seems to be the key to determining the scope of a
constitutional search of a student by a school official under the Fourth Amendment.

Klump v. Nazareth Area Sch. Dist., 425 F. Supp. 2d. 622 (E.D. Pa. 2006)

In this case, the Nazareth, PA school district, superintendent, an assistant principal and a
teacher were sued by a student and his parents for the school officials’ alleged violation of the
student’s constitutional right to privacy and freedom from unreasonable searches and seizures
under the Fourth Amendment, federal wiretapping statutes, and common law tort claims.

The school district had a policy which prohibited use or display of cell phones during
school hours (students were permitted to carry cell phones during school hours). During class,
the student’s cell phone dropped out of his pocket and was spotted by his teacher. The teacher
confiscated the phone, enforcing the school’s policy prohibiting the use or display of cell phones
during school hours. Subsequently, the teacher and the assistant principal made phone calls
using the phone to investigate whether other students were violating the school’s policy,
accessed the phone’s text and voice mailboxes, and conducted a conversation, without
identifying themselves, with the student’s younger brother through an instant-messaging
function.

The student and his parents filed a nine-count complaint against the district and certain
school officials. The Defendants moved to dismiss, but the only claims which were dismissed
were those barred by the Pennsylvania Political Subdivision Tort Claims Act and the doctrine of
qualified immunity. The trial court specifically stated that “students have a Fourth Amendment
right to be free from unreasonable searches and seizures by school officials.” While the court
granted, in part, the school officials’ motion to dismiss, it permitted the student to proceed with
the following claims: (1) unlawful access to stored text and voice mail messages, (2) false light
invasion of privacy, (3) defamation and slander per se, (4) violation of the Fourth Amendment,
(5) violation of the Pennsylvania constitution, (6) negligence, and (7) punitive damages.

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Barry M. Willoughby
Barry is a partner and Chair of the Employment Law Section of Young
Conaway Stargatt & Taylor, LLP. Mr. Willoughby also serves as a
member of the firm's Management Committee. His practice is primarily
limited to representation of employers in claims of employment
discrimination, retaliation, "whistleblower," and other "wrongful
discharge" cases under federal and state law, including defense of charges
of racial and sexual harassment. Mr. Willoughby also defends public
employers in First Amendment, due process, equal protection, and other
constitutional law allegations. He also represents employers in union
related conflicts, including representation in organizing campaigns, unfair
labor practice proceedings, and grievance/arbitration hearings.

Maribeth L. Minella
Maribeth advises clients regarding day-to-day employment issues, such
as employee discipline and discharge, reductions in force, and
restrictive covenants. She also works with the firm’s Bankruptcy
Section to address labor and employment issues that arise in the
context of purchases, sales, mergers, layoffs, and shutdowns. Maribeth
has extensive experience with electronic discovery and document
retention matters, and has worked with clients on a range of related
issues, from drafting and implementing document retention plans to
identifying the duty to preserve documents and managing massive
electronic document reviews.

©2010 Young Conaway Stargatt & Taylor, LLP

www.youngconaway.com
www.delawareemploymentlawblog.com