This article was published in OCPA's Perspective magazine View Issue
While I was in Texas working for a legislator who was then the first Republican since Reconstruction to become chairman of the House Public Education Committee, a lobbyist for one of the teacher organizations asked me an interesting question. He asked if I thought it was possible statutorily to grant teachers greater legal protections against potential lawsuits, given that his members were clamoring for it.
The honest truth was that nothing more could be done. It is only a slight exaggeration to say that under the law in Texas, a teacher would have to commit cold-blooded, pre-meditated murder of a student in order to lose a liability lawsuit. That’s because the law in Texas so thoroughly indemnifies teachers from any liability while performing official duties that even grossly irresponsible behavior is unlikely to result in a finding of personal liability. In fact, this is almost just as true in nearly every state.
In 2002, the federal government added to state protections when the Paul D. Coverdell Teacher Protection Act of 2001 was signed into law. Its purpose is to prevent lawsuits against educators who take “reasonable actions to maintain order, discipline, and an appropriate educational environment.” Educators in any state school system receiving Title I money, and meeting several other conditions that generally apply in a public school environment, enjoy this protection.
Yet, some teachers are afraid. They seem to see a lawsuit hiding behind every corner. Consequently, teachers join teacher organizations and unions, to which they pay significant dues, just so they can get the liability insurance those organizations offer. For a variety of reasons, whether it’s scare tactics by unions, scare tactics by administrators, or just urban legends arising from the occasional story based in fact, teachers worry about being sued.
The liability insurance bought through such teacher professional organizations and unions is cheap, of course. Indeed, it’s very nearly pure profit for those who sell it. Why? Well, because, as I said, a teacher in nearly every state would practically have to commit cold-blooded, pre-meditated murder to lose a lawsuit over something that happened while performing official duties. (And Oklahoma law guarantees that teachers, unlike other people, get reimbursed for court costs if they are sued and prevail.)
Nevertheless, teachers want insurance. And it can be a troublesome proposition for a teacher to buy liability insurance on her own, outside of being a member of a union or other teacher group. It’s not as if these sorts of policies are readily available. The minimum that can be found online for this insurance bought individually is $94 per year. That is a bargain for $1 million in coverage, if it were ever used. Meanwhile, dues for the Oklahoma Education Association are $513 per year, with liability insurance included as one of the benefits. In that case, though, all the shopping has been done.
In 2000, an American Federation of Teachers (AFT) representative revealed that the insurance benefit was a major tool for their organization to attract teachers and that it cost AFT only $12 per year per member. In other words, many teachers and other educators are paying dues costing them 30 to 40 times the price of the benefit they actually care about.
Let’s suppose that since the year 2000, the liability insurance benefit provided by AFT has doubled in price to $24. That insurance could be provided to every full-time-equivalent public-school employee in Oklahoma for a mere $2 million. If the cost were $99 per year per employee, providing liability insurance for all teachers would still be less than $8 million. In fact, both of these estimates are likely too high because of the state’s buying leverage. In 2015-16 a statewide premium for Florida to provide $2 million in liability coverage for all its public-school teachers cost less than $850,000.
When it comes to providing benefits to teachers, liability insurance is a bargain. Many teachers would appreciate not feeling that they have to join a union or other organization in order to get the insurance they think they need. What’s more, if the legislature provided liability insurance, teachers would likely feel assured that at least the legislature has their back.
In Florida for a time liability insurance was provided by the state, and then it was canceled after five years, only to be reinstated recently. During that initial five-year span, $4.4 million in premiums were paid while only $50,000 in claims were paid out, resulting in arguments that the money was ill-spent. Actually, these circumstances only raise the question of why Florida did not drive a harder bargain. It also is reason to wonder why a state could not self-insure for teacher liability and contract with able attorneys on a contingency basis to provide legal counsel.
Regardless of how the state of Oklahoma might structure the provision of liability insurance for teachers, it is a bargain. And it would help debunk the notion that teachers have to be constantly afraid of being sued just for doing their jobs. Teachers might just feel freer to do their jobs well.