Board Liability

As a general rule of common law, the state can’t be sued without its consent. Because a school board is an agency of the state and performs a government function, the prohibition against being sued has generally been extended to the board. The effect has been to protect boards from tort liability – that is, legal responsibility for harm brought to someone due to negligence.

Boards also have been protected from tort liability because they have no funds other than those for operating the schools and can’t legally spend them for anything else. A court judgment that required a district to spend money to compensate an individual for injuries would, in effect, compel the board to use public funds for purposes not authorized by law.

Statutory tort immunity was created by the Arkansas General Assembly in 1969. That law still protects school districts and other political subdivisions of the state from liability for damages. Even so, Arkansas school boards should not be nonchalant about the matter of liability for these reasons:

• The doctrine of non-liability has several exceptions
• The growing national trend is to question seriously school districts' immunity from liability
• Immunity may not extend to individual board members

Courts in other states have held boards liable for injuries related to “proprietary functions” of the board. Proprietary functions are different from the board’s usual governmental duties. They include activities such as:

• Hosting athletic contests
• Renting school-owned facilities to outside groups
• Profit- or revenue-producing activity beyond the traditional scope of K-12 education