AI Goes to School: Implications for School District Liability

Abstract

School districts increasingly and controversially require students to use school-provided technology that tracks every sentence students write and every website students visit, whether from school or at home. Because of the vast information now at school administrators’ fingertips, schools have turned to technology companies to install software -- termed safety management platforms (SMPs) -- to alert school districts to risks of suicide or bullying. The software uses Artificial Intelligence (AI) to comb a student’s word usage and online navigation to notify school administrators of concerns warranting intervention. Although it is too early to tell, SMPs hold great promise in preventing bullying and facilitating early intervention in case of suicidal tendencies. Lost in the shuffle has been the potential impact on school liability if a tragedy ensues. Traditionally, immunity doctrines under state law (and restrictive Section 1983 jurisprudence under federal law) have protected school districts from liability in all but the most shocking cases of harm within the school’s grounds. This paper argues that utilization of SMPs will continue to protect school districts when they adhere to the warnings indicated by the SMP, but that if the school district ignores the SMP’s alert, then the school district opens itself to liability because a failure to act on concrete alerts will be considered ministerial. Moreover, use of a SMP likely will expand a school’s duty to protect outside of the school’s premises because courts likely will not let schools ignore concrete information of imminent harm no matter where it may arise. In addition, courts may broaden school districts’ liability because use of an SMP likely will be considered an affirmative act to protect students, which may lull students and their parents into complacency if school authorities then act negligently. And, as SMPs become the norm, a failure to use an SMP may itself fall beneath a standard of reasonable care. Finally, we conclude that, for the most part, schools will escape liability for failing to supervise sufficiently the technology company utilizing the SMP. In sum, SMPs protect students and, to some extent, schools, but schools need take care lest their adoption of an SMP leads parents and courts to conclude that, in walking down that path, schools have become the insurer of student safety.