Newsline Volume 33, Number 3

Of Civil Rights and Children

By Sherry L. Rajaniemi-Gregg, Esquire and Daniel T.S. Heffernan, Esquire


"...prior to filing any lawsuit in court, you must first file a request
for a due process hearing in order to determine if the
Bureau of Special Education Appeals (BSEA) has any authority
over deciding your claims."

We send our children off to their public school each day with the assumption that they will be safe in the care of school personnel. Most times, this remains true. Unfortunately, despite the many caring, professional teachers who dedicate their days to educating our children, there are the occasional bad eggs - those personnel of a public school who physically, mentally, and/or emotionally harm our children, abusing their positions of power. There are also instances in which our children's fellow students are the perpetrators, harming peers through bullying, hazing, or other types of abuse. While criminal charges may be pursued against these perpetrators or a complaint for abuse or neglect may be pursued with the Department of Children and Families, there are also civil claims that may be made in order to recover monetary damages for your child's injuries. These claims fall into three broad categories: (1) state-based claims for negligence or "tort" claims; (2) state-based claims for intentional actions, such as intentional infliction of emotional distress or violation of the Massachusetts Civil Rights Act; and (3) federal claims, such as those under 42 USC § 1983, the Americans With Disabilities Act, or Title IX. Each of these types of claims has specific elements that must be proven in order to win at trial, and unfortunately, trying to prove one type of claim may make the others more difficult to prove. Because of the complexity of these claims, it would be beneficial to consult with an attorney experienced in this area of the law as soon as possible, if your child has received any such injuries.

When asserting negligence claims against a public school district, you are alleging that the district did not provide reasonable care to your child; therefore, even though the district and its personnel maynot have intended to harm your child, the result of their actions is that your child was, indeed, injured. Negligence-based claims are also called tort claims. A public school is an entity of the Commonwealth of Massachusetts; therefore, it is afforded the protections of the Massachusetts Tort Claims Act (MTCA). The MTCA is multi-faceted; however, the three main protections it affords public schools for any tort claims are:

  1. You must serve the appropriate public school and town or city personnel with a proper presentment letter within two years of the incident; otherwise, you will be barred from suing the school district for any tort claims, no matter how liable you believe the district may be for the injuries your child suffered.
  2. The district and its personnel are limited in liability for any tort claims up to only $100,000 per plaintiff. This means that, even if a jury were to award your child $1,000,000 for his or her tort claims, the judge would have no choice but to decrease the recovery to $100,000 for each plaintiff (therefore, up to $300,000 for your child, and both parents, for example).
  3. Public employees whose actions were undertaken as part of their employment may be protected from individual liability; conversely, the public school may be protected from liability for those actions of school personnel outside of their employment responsibilities.

As you can see, the overcoat provided to public school districts by the MTCA heavily insulates them and their personnel from the cold reality of civil liability for the negligent actions of their personnel. However, these three protections are generalities. Consulting with an attorney experienced in this area of the law may provide you with additional avenues of liability and compensation for your child's tort-based claims.

Unlike negligence claims in which the public school and its personnel did not intend to cause the injuries your child may have suffered, intentional claims, such as the intentional infliction of emotional distress, are outside of the protections of the MTCA. Therefore, even if you had not sent a timely presentment letter, you may still include intentional claims in your law suit. Also, the liability limit of $100,000 does not apply to intentional claims, nor are public school personnel protected from liability for their actions that are intended to result in harm. However, intentional claims can be more difficult to prove. Federal claims for violations of your child's civil rights or impermissible violations based upon his or her disability or gender can be the most difficult to prove. While attempting to prove your federal claims, you may also be undermining your tort and intentional claims. However, there are two benefits, if you can prove that your child's federal protections were violated. First, like intentional claims, the MTCA does not protect public schools and their personnel from liability or paying full compensation for their violations of federal statutes protecting your child's rights. Second, these federal statutes may allow you to recover your attorneys' fees and costs of litigating to recover monetary compensation for your child's injuries. As such, these federal claims may provide additional resources for your child's monetary compensation for his or her injuries.

Assuming your child has been injured through the actions of a public school district and its personnel, and that you may be able to assert any or all of these claims, there remain additional hurdles before you can file any claims in state or federal court, if your child receives special education services or accommodations through an Individualized Education Plan (IEP) or a 504 Plan under the Rehabilitation Act. The Individuals with Disabilities Education Act (IDEA) may prohibit you from suing a school district for injuries your child receives as a result of the actions of its personnel, if your child is on an IEP or 504 Plan until you have done what is termed "exhausting" your administrative remedies. This simply means that, prior to filing any lawsuit in court, you must first file a request for a due process hearing in order to determine if the Bureau of Special Education Appeals (BSEA) has any authority over deciding your claims. For example, when our firm has represented students abused, assaulted or illegally restrained by special education teachers in their claims for money damages, we have litigated the matter first in the BSEA. Once you have "exhausted" this avenue, then you may proceed to file your complaint in the state or federal court.

As you can see, this area of the law is quite complex, and a mis-step may prevent you from being able to litigate your child's claims at all in court. If you think your child has been injured as a result of a public school district and its personnel, you should meet with an attorney experienced in this area of the law as soon as possible in order to make sure that your child's potential claims are protected and can be asserted correctly in a timely manner.


Sherry Rajaniemi-Gregg and Daniel T.S. Heffernan are attorneys with Kotin, Crabtree & Strong where they concentrate on special education and civil rights law. They have represented numerous families with children with special needs in abuse, civil rights and negligence actions. Contact them at and