Restorative Justice Liability: School Discipline Reform and the Right to Safe Schools Part IV: Judicial Review and the Duty to Protect

Abstract

The Court's insertion of external mandates into the school environment suggests, but does not prove, that judicial review is shifting on the duty to protect students. What is at issue is the second great question relating to the liability of school officials: How should courts assess the reasonableness of school policies when they conflict with external mandates that require more of school officials in protecting students on campus? There is every reason to suppose that courts, in response to the changes in the underlying laws in child welfare and juvenile justice, will be less averse to second-guessing education decision-making. One court characterizes the reporting mandate as one which creates “a statutory and moral duty” of compliance. Indeed, in a review of the complex factors surrounding efforts to eliminate cyber-bullying, Carolyn McNamara is correct to argue that the cooccurrence of legal reform and school liability has at least some causal connection with rigorous judicial review. Even so, to prove this argument requires taking into account the characteristics of judicial review in public education in light of the reforms, a task that until recently was difficult to do.

Keywords: restorative justice, liability, school discipline, school safety, judicial review, duty to protect