Exercising Due Diligence

In the Pastors, Administrators, and Principals’ Conference (PAPCON), held at the Heritage Hotel last March 7-8, one of the highlights was the informative talk of Atty. Joseph Noel Estrada on the protection of our schools from complaints and law-suits. A key phrase used in his talk was “exercising due diligence” regarding the discussion of various issues faced by schools.

Due diligence is commonly used in business transactions defined as “reasonable steps taken by a person in order to satisfy a legal requirement.” It also refers to “the research done before entering into an agreement or a transaction with another party.”

How does this apply to the operation of our schools? To state in simple terms, it means “protecting our schools from legal cases.”

The aim of this article is to identify areas where our schools usually face problems as well as touch on areas in which we may not be very aware of our legal vulnerability.

SUBSTITUTE PARENTAL AUTHORITY vs. SPECIAL PARENTAL AUTHORITY

Primary care of children is assigned to their parents. While we use the term “in loco parentis” to establish our roles as acting parents of the students in school, we need to understand that there is a difference between substitute and special parental authority.

Substitute parental authority is given to persons who substitute for the natural parents due to death, absence, or incapacity. Guardians are substitute parents and require a court decision.  Special parental authority is the authority given to teachers and educators while the students remain in their supervision, instruction, and custody. This is “in loco parentis.” This is a call to protect the constitutional rights of the students.

Many educators see their special parental role in the implementation of student discipline in school – and this is true. In fact, the authority to discipline extends outside the school premises during school-sponsored activities like conventions or field trips. Students may even be subjected to disciplinary action if they do anything outside the school that “affects the good name of the school” and this applies to cyberspace. But to protect our schools, we need to state this in our Student or School Handbook. While maintaining order in the campus is important, remember that the purpose of discipline is, primarily, to shape the character of the student.

AUTHORITY vs. LIABILITY

In the role of educators as special parents, the authority is just one side of the coin. “In loco parentis” is also a source of liability. In other words, if something happens to a student, the special parents are directly liable if it is proven that there is negligence on their part. Thus, the key to protect us from legal trouble is to exercise due diligence.

The basis of liability is the “breach of contract,” which is the failure to maintain a safe and secure environment for the students. This is an implied contract between the parents and the school. Accidents may happen, but if we can prove that we have provided all necessary preventive measures to avoid liability, then we cannot be charged with negligence. It is also important to note that liability is “direct, joint, and solidary,” which means, in the case of an accident, it is “as if the teacher did it.” While not a criminal liability, it is a civil liability due to negligence.

INCIDENT AND ACCIDENT REPORTS

We are familiar with writing incident or accident reports. In our role as “parents in the school,” we must take due diligence in writing these out to protect ourselves. Thoroughly investigate and do not involve parents in writing the report if their involvement is not required.

If there is an offended party, form a fact-finding team. A face-to-face confrontation between the complainant and the offended is not necessary. Investigation may be conducted separately. It is also important to note, that in cases of accidents where no other student is involved, there is a thing called “contributory negligence,” which refers to the negligence of the student causing injury to himself.

In more serious cases, it is advisable to seek legal counsel in writing reports to protect the school from self-incrimination.

CONSENT vs. WAIVER

Whether the school is conducting a Field Trip or sending students to a Retreat, it is wise to have parents sign a Consent Form or Parents’ Permit Slip. However, when going to JSC or NSC,  parents are required to sign the CF6 or the “Permission for Participation in Student Convention and Release and Indemnity Agreement.” The latter is a waiver. How does a consent differ from a waiver?

A consent or permit simply provides information that parents are allowing their children to participate in a school activity. This may be a valid document but it is not legally binding in terms of being released from liability when something goes wrong. A waiver is binding but only a court of law can declare whether a waiver is legal or illegal. To make it legal, it must be written in detail.

A waiver serves as a contract and stipulates details like “. . . the school is not liable in the case of . . .” For Field Trips, statements like “The school waives its liability by reason of driver error or unworthiness of the bus because of the limited control of the school on outsourced services” may be detailed, however, the school still needs to exercise due diligence by making sure that certifications be obtained from the tour provider of the “road-worthiness of the bus” and “trustworthiness of the driver.” Documents like these are vital to protect us from suits in cases of, God forbid, accidents. Be as thorough as possible in securing certifications, which are not limited to those mentioned here.

Good examples of waivers are the CF6 and CF8 (Parent/Guardian’s Authorization to Consent to Health Care for Minor and Indemnification Agreement) used for A.C.E/SOT student conventions. You may use these as a basis for writing your own waivers for school-sponsored activities.

SUSPENSION, EXCLUSION, AND EXPULSION

It is a given that a child who enrolls in a particular school has the right to enroll up to graduation. The valid reasons for suspension or non-readmission are violation of school policies and academic non-fulfilment. But again, we need to exercise due diligence by detailing in the School Handbook the violations that warrant suspension, exclusion, and expulsion.

Suspension is not allowing an erring student to come to class for a period that does not exceed 20% of class days for the school year or term.

Exclusion may mean non-readmission – that is allowing the student to complete the current school year but will not be allowed to re-enroll the following year. It may also mean immediate dismissal of a student from the school rolls “for being undesirable.” A Summary Investigation shall have been properly conducted.

Expulsion, according to the DepEd Manual of Regulations, is “an extreme penalty on an erring pupil or student consisting of his exclusion from admission to any public or private school in the Philippines and which requires the prior approval of the Secretary.”

To protect our schools from legal cases, these disciplinary actions must have gone through thorough investigation. In the case of exclusion and expulsion, “due diligence” may mean acquiring the services of a lawyer.

There are other areas where we need to exercise due diligence, which include the implementation of the Anti-Bullying Law, the DepEd Child Protection Policy, and the Mental Health Law. Due diligence in complying with local government requirements is also vital such as building codes and fire codes. And closer to home – diligence in complying with DepEd requirements on permits, policies on acceleration, teacher qualifications, and documentary necessities.

The key to protecting our ministries from legal troubles is to exercise due diligence in the operation of our schools.

2 thoughts on “Exercising Due Diligence”

  1. Another excellent article again Attorney Estrada! I’m really a fan… Just an inquiry I’m a teacher and I’m not so familiar with any law protecting the rights of teachers. We do have a lot for students though.

    1. For more information regarding your inquiry about our home education program such as training/orientation, rates and requirements, etc. please call PCST-HEP via mobile and look for any of our academic advisers.
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      Smart : (0999) 997-7516
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      Or you may send them an email at academics@schooloftomorrow.ph if you are out of the country. They can help you better regarding your inquiry.

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