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Do schools have sovereign immunity?


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#1 stebbinsd

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Posted 06 February 2010 - 07:37 PM

My jurisdiction is Arkansas.  Also, when I say "schools," i mean PUBLIC schools, like Fayetteville High School or Arkansas Tech University; you know, the schools that get a ton of money from the government so they can set their tuition at an artificially-low price.

I understand why the school would want to raise the defense; however, I can think of several reasons why that defense would not hold water.

1.  Numerous times, elementary schools got sued for personal injury when kids got injured during recess.  This led to most schools taking down their playground equipment.  Therefore, schools must not have sovereign immunity, otherwise, they could have just raised the defense, no fuss no muss.

2.  They are not "the government," per se; they are largely independently-owned and operated.  The money they get from the government is really nothing but a glorified affirmative action program.  They should have no more sovereign immunity than the Post Office does.

3.  During my google search, I did not find any conclusive information, but I DID find that several states have passed statutes that state that public schools have sovereign immunity.  If a statute is necessary to state this, then it would stand to reason that, in the absence of said statute, schools DON'T have it.  Therefore, without any such statute in Arkansas, it would stand to reason that a public school is still entirely vulnerable.

What do you think?


#2 Lawstudentscholar818

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Posted 07 February 2010 - 09:00 AM

Party:

I am not sure exactly what cause of action you are bringing, however in most instances to sue a school administration itself -- you must apply for what is called a Right to Petition (Civil Lib. - First Amendment Petition) aka "Right to Sue."

A case I worked on in law school... we obtained five rights to petition...

(1) From the Gov. of California
(2) Attorney General of the United States
(3) Three 9th Circuit Federal Judges

One this petition is granted -- immunity no longer stands.

Note: This is not legal advice. This not form a attorney-client relationship of rights and privilege.


#3 pg1067

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Posted 09 February 2010 - 03:05 AM

Yes, schools, as public entities, are protected by the same sovereign immunity that protects other public entities.  Of course, laws in every jurisdiction fully or partly waive sovereign immunity in a number of cases, including, particularly, in personal injury cases.


"when I say 'schools,' i mean PUBLIC schools, like Fayetteville High School or Arkansas Tech University; you know, the schools that get a ton of money from the government so they can set their tuition at an artificially-low price."


Public high schools and elementary schools do not merely "get . . . money from the government."  They are completely government funded and do not charge tuition.


"Numerous times, elementary schools got sued for personal injury when kids got injured during recess.  This led to most schools taking down their playground equipment.  Therefore, schools must not have sovereign immunity, otherwise, they could have just raised the defense, no fuss no muss."


I don't know what things are like in AR, but I'm aware of no school in my state that took down playground equipment as a result of lawsuits relating to injured children.  Keep in mind that there are a number of other possible defenses relating to children injured on school premises, including, particularly, assumption of the risk.


"They are not 'the government,' per se; they are largely independently-owned and operated."


Maybe things are different in AR, but that's certainly not the case with public schools in general.


"The money they get from the government is really nothing but a glorified affirmative action program."


???


"I DID find that several states have passed statutes that state that public schools have sovereign immunity.  If a statute is necessary to state this, then it would stand to reason that, in the absence of said statute, schools DON'T have it."


Whether there's sovereign immunity in the absence of a statute is a matter of each state's laws.  Also, the fact that a statute exists does not mean that is necessary.


You'd have to conduct some full blown legal research (not just googling) to determine to what extent, if any, sovereign immunity applies to public schools and the circumstances in which it is waived.



#4 stebbinsd

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Posted 09 February 2010 - 03:11 AM

Public high schools and elementary schools do not merely "get . . .
money from the government."  They are completely government funded and
do not charge tuition.


So, if they do charge tuition, even artificially-low tuition, like a college, then they're not a government entity and, therefore, not protected by sovereign immunity?

"They are not 'the government,' per se; they are largely independently-owned and operated."

Maybe things are different in AR, but that's certainly not the case with public schools in general.

They are with colleges.



#5 Tax_Counsel

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Posted 09 February 2010 - 11:15 AM

stebbinsd said...

1.  Numerous times, elementary schools got sued for personal injury when kids got injured during recess.  This led to most schools taking down their playground equipment.  Therefore, schools must not have sovereign immunity, otherwise, they could have just raised the defense, no fuss no muss.


The concept of sovereign immunity means that the government (whether federal or state) cannot be sued except to the extent that it has expressly waived that immunity. In the federal system, there are a number of statutes in which Congress has waived immunity and consented to allow suits against the federal government. For example, the federal Tort Claims Act allows persons injured by the negligence of federal employees to sue the U.S. government for damages. As a result, arguing that the federal government must not have sovereign immunity because individuals have sued it for personal injury damages is only partly correct. The federal government does not have sovereign immunity as to tort claims because it has by statute waived it. It would not be correct, though, to argue that because it can be sued for tort claims that it lacks sovereign immunity for something else. Instead, you'd need to find a statute expressly waiving sovereign immunity as to that other kind of claim.

How Arkansas law handles waiver of sovereign immunity I cannot say since I've not researched it.

stebbinsd said...

2.  They are not "the government," per se; they are largely independently-owned and operated.  The money they get from the government is really nothing but a glorified affirmative action program.  They should have no more sovereign immunity than the Post Office does.

Actually, this argument also does not work. Public high schools and state universities are not "independently owned." They are owned by the state government or some political subdivision of the state.

The U.S. Postal Service is owned by the federal government. It is covered by the U.S. government's sovereign immunity except, again, where the Congress by statute has waived it.

stebbinsd said...

3.  During my google search, I did not find any conclusive information, but I DID find that several states have passed statutes that state that public schools have sovereign immunity.  If a statute is necessary to state this, then it would stand to reason that, in the absence of said statute, schools DON'T have it.  Therefore, without any such statute in Arkansas, it would stand to reason that a public school is still entirely vulnerable.

What do you think?

I think that how another state handles sovereign immunity doesn't help you much, since each state can handle things differently. What you need is the law in Arkansas on how sovereign immunity is handled. It may be that for political subdivisions of the state, like cities, counties, and local school districts, the state needs to have a statute that actually extends it's sovereign immunity to cover them. Or it may be that state law provides that all government units in the state have sovereign immunity unless it has been waived. As I said, though, I have no idea how Arkansas approaches it because I've not researched it.







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