Ordinary pertains to what is accepted or customary practice. Reasonable relates to the appropriate and adequate use of professional knowledge and judgment. Prudent means the exercise of caution, not in the sense of being traditional or conservative, but rather maintaining adequate safeguards.
Risk Management
School psychologists should be familiar with the term risk management. Unlike ethical decision-making models that have the primary goal of safeguarding the welfare of the client, a risk management analysis is conducted to minimize exposure of the school or the practitioner to legal liability (Behnke & Jones, 2012). It is understandable that school districts and school psychologists wish to avoid lawsuits and other legal actions against them. Lawsuits and due process hearings are stressful, time consuming, and expensive. However, it is important “to avoid placing the protection of [the school] or the professional from legal action above the welfare of the client” (Welfel, 2012, p. 284). Experts in ethics and law agree that the best way to avoid lawsuits is “to do the right thing” (Knapp et al., 2012; Welfel, 2012). For school districts, this means knowing and respecting the legal rights of students and parents. For individual practitioners, this means knowing and making decisions consistent with our codes of ethics and aspirational ethical principles as well as working to safeguard the legal rights of schoolchildren and other clients (Knapp et al., 2012; Welfel, 2012). Readers interested in risk management strategies are referred to Bennett et al. (2006), Knapp et al. (2012), and Sales et al. (2005).
Professional Liability Insurance
To protect themselves and perhaps ease their fear of litigation, some school psychologists purchase professional liability insurance. Prior to purchasing a policy, school psychologists should investigate what type of coverage, if any, is provided by their employers and whether any professional liability insurance is provided by their membership in a professional union, such as the National Education Association or American Federation of Teachers. Both the NASP (http://www.nasponline.org) and the American Psychological Association (http://www.apa.org) have information about professional liability insurance on their Web sites. Internship students are well advised to consider purchasing liability insurance (often available at a student rate) because they may not be covered by their school district’s policies.
In choosing an insurance policy, several points should be kept in mind. First, be sure to study the policy carefully to know what is and is not covered. Some professional liability policies cover school psychologists only when their services are performed during school-based practice. In other words, they do not cover private practice. Such policies are generally much less expensive than those that cover private work. Second, policies may be either based on claims made or occurrence based. Under the former, the practitioner is covered only if insured when the alleged malpractice took place and when the claim was filed. Under the latter, called an occurrence-based policy, the practitioner is covered as long as they were insured when the alleged malpractice took place, regardless of when the claim was filed. Third, many policies reserve the right to select legal counsel and to settle the case. This may be discouraging to practitioners who want their day in court. The psychologist may still hire their own attorney to work with the one supplied by the insurance carrier, but that is an additional expense (see Knapp et al., 2012, for additional information).
CONCLUDING COMMENTS
This chapter provided a brief overview of public school law pertinent to school psychology. School psychologists are ethically and professionally obligated to be familiar with law and to keep abreast of changes in law affecting practices. We concur with Reschly and Bersoff (1999) view that understanding of law is important “as means to protect precious rights, as well as a method to resolve disagreements over rights and responsibilities. The better understanding of legal influences is one way to enhance opportunities for implementing the best professional practices.”
STUDY AND DISCUSSION
Questions for Chapter 2
1 What are the three sources of public school law in the U.S. legal system?
2 Why was the Bill of Rights passed? What is the significance of the 10th Amendment with regard to public education? Do citizens have a right to a public education under the U.S. Constitution?
3 Identify two aspects of the 14th Amendment that have been extremely important in court decisions regarding the public schools.
4 What was the significance of the Supreme Court decision in Tinker v. Des Moines Independent Community School District (1969)?
5 If public education is a duty of the states, how does the U.S. Congress have the power to shape educational policy and practices? Cite two examples of federal education legislation and two examples of federal antidiscrimination legislation.
6 What is case law, and why is it important?
7 What is civil liability?
8 What is professional malpractice? What aspects of the situation do courts evaluate to determine whether malpractice occurred? How is appropriate standard of care generally determined?
Activities
The majority of public school statutory law is enacted at the state level. School psychologists must become familiar with the laws pertinent to the delivery of school psychological services in the state where they are employed. Obtain a copy of the rules governing special education and school psychological services in the state where you live. Copies of state laws affecting education typically can be downloaded from the state’s Web site.
Notes
1 1 This case concerned an Arkansas state law that prohibited the teaching of the Darwinian theory of evolution in the schools. The Supreme Court held the law to be an unconstitutional violation of First Amendment safeguards of freedom of speech and inquiry and belief.
2 2 The term “handicaps,” rather than “disability,” is used when historically accurate.
3 3 Title VI of the Civil Rights Act of 1964.
4 4 Title IX of the Education Amendments of 1972.
5 5 Title II of the Americans with Disabilities Act of 1990.
6 6 As used by NASP (2017b), the acronym LGBTQ+ is intended to be inclusive of students of diverse sexual orientations, gender identities, and/or gender expressions.
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