Can a school board be held accountable when a student suffers abuse on a school bus? The answer depends on one critical legal doctrine: sovereign immunity.
In a recent case, Newport News School Board v. Z.M., the Supreme Court of Virginia clarified the limits of that immunity. This case involved deeply disturbing allegations of abuse against a vulnerable, non-verbal autistic child. And yet, the Court ultimately held that the school board itself could not be sued for negligence. Let’s break down what happened—and what it means for families across Virginia.
Can You Sue a School in Virginia? The Allegations of Abuse on a Special Education School Bus
The case centers on Z.M., a non-verbal autistic child attending the Center for Autism at Kiln Creek Elementary School. This case involves the rights and protections of children and students with disabilities in public schools and school divisions in Virginia. According to the lawsuit, while being transported home on a Newport News school bus, Z.M. was subjected to degrading and abusive treatment by school employees. While this case involved emotional and psychological harm, it is important to note that other incidents on school property can result in serious physical injuries, such as broken bones, to any person, including students, staff, or visitors.
The complaint alleged that:
- Z.M. was struck in the face with his own wet sock.
- He was told twice by staff that they wished they could “whip his tail.”
- After removing his pants and diaper, staff allowed him to exit the bus without any clothing on the lower half of his body.
- The day before, staff had referred to him as an “animal” and a “monkey.”
Teachers and other school staff, including any staff member or school employee, have a legal responsibility to protect students and can be held liable for misconduct or abuse. Bullying by a bully or staff member can have severe consequences for kids and may result in disciplinary action and legal claims against the school or its employees.
His father sued the Newport News School Board for simple and gross negligence, seeking $15 million in compensatory and punitive damages. The legal claim was brought by the parent against the school board, a government entity. Public schools and school divisions in Virginia are considered government entities, sometimes protected by the federal government under sovereign immunity.
The School Board’s Defense: Sovereign Immunity
The Newport News School Board argued that it could not be sued.
Why?
Because it is protected by sovereign immunity, a legal doctrine that shields the Commonwealth and its subdivisions, including public schools and school divisions, from lawsuits unless the General Assembly has specifically waived that protection.
The Newport News School Board is one of many government entities in Virginia, and these government entities are often protected by sovereign immunity.
The school board pointed to its status as a government entity and filed a plea in bar, asking the court to dismiss the case on that basis. The federal government also plays a role in establishing the legal framework for sovereign immunity, which can impact claims against both state and federal government entities.
It is important to be aware of these legal protections and how they affect your ability to sue a school in Virginia.
What Is Sovereign Immunity—and Why Does It Matter?
Sovereign immunity is an old concept. Think “The King can do no wrong.” In Virginia, it means that unless a statute clearly allows it, you can’t sue the state or its agencies—even when harm is caused by negligence.
The policy reasons behind sovereign immunity include:
- Preventing disruptive or excessive litigation against public entities.
- Preserving public funds.
- Allowing the government to function without fear of constant lawsuits.
Many states have similar laws protecting government entities, but the specifics of sovereign immunity can vary from state to state.
That’s why school boards in Virginia are generally immune from personal injury lawsuits unless a statute waives that immunity.
The Statute at Issue: Code § 22.1-194
Z.M.’s lawyers argued that their legal claim was based on the interpretation that Code § 22.1-194 created a valid exception to sovereign immunity. This law says a school board can be sued—but only if a school vehicle is “involved in an accident” and insurance is available to cover the injury.
The trial court agreed with the plaintiff’s interpretation. It ruled that the alleged abuse happened on a school bus, and insurance coverage existed. That, the judge said, was enough to allow the negligence claims to proceed.
The school board appealed.
The Supreme Court’s Ruling: No Accident, No Waiver
The Supreme Court reversed the trial court’s ruling and dismissed the claims against the school board.
Here’s what the Court said:
“We conclude that Code § 22.1-194… does not waive sovereign immunity on such alleged facts… the bus was not ‘involved in an accident.’”
In other words, even though the abuse happened on the bus, the incident was not an “accident” as the law defines it. There was no crash. No sudden stop. No collision. The bus was simply the place where the alleged abuse occurred—not a contributing factor.
The Court emphasized that the term “accident” requires more than the mere presence of a vehicle. It must involve the vehicle’s operation, loading, unloading, or something like a crash or malfunction. That didn’t happen here.
As a result, the School Board remains immune—even from claims of gross negligence.
What About the School Employees?
There’s a crucial distinction here. While the School Board is immune, its employees are not—at least not when it comes to gross negligence. Individual school staff, including any staff member, teacher, or other school employees, can be held liable for gross negligence or willful misconduct.
Virginia courts have consistently held that government employees can be sued personally if their actions rise to the level of gross negligence or willful misconduct. That means Z.M.’s lawsuit can still proceed as a legal claim against the specific staff members, teachers, or other school staff accused of abusing him. If a staff member is found responsible, disciplinary action may be taken in addition to legal liability.
A parent can bring a legal claim on behalf of a student, including a student with a disability, who has been harmed by school staff. This ensures that students’ rights are protected and that those responsible are held accountable.
Navigating the Complaint Process
When an incident occurs on school property—whether in a public school, private school, or during school activities—knowing how to navigate the complaint process is essential for parents, students, and staff members.
Whether the issue involves personal injury, bullying, discrimination based on national origin, or violations of the Disabilities Education Act, understanding your legal options can make all the difference in holding school districts and school officials accountable.
1. Identify the Issue Clearly: Start by pinpointing exactly what happened. Was your child subjected to bullying, sexual harassment, or inappropriate physical contact by a school employee? Did negligent supervision or willful misconduct by staff members lead to an injury? Clearly defining the problem will help you determine which laws or regulations may apply—such as Title IX for sexual misconduct, Title VI for national origin discrimination, or the Disabilities Act for issues involving students with disabilities.
2. Gather and Preserve Evidence: Documentation is key. Collect any relevant evidence, such as medical records if a personal injury occurred, written communications with school administrators, photographs, or statements from other students or staff who witnessed the incident. If the issue involves a violation of the Disabilities Education Act or state regulations, keep copies of Individualized Education Program (IEP) documents or correspondence with the school district.
3. Report the Incident Promptly: Notify the appropriate school officials as soon as possible. This could be a principal, a member of the school board, or the superintendent. For serious allegations—such as gross negligence, corporal punishment, or sexual misconduct—reporting to local law enforcement or a federal agency may also be necessary. Each school district, including those in Virginia, has its own procedures for handling complaints, so be sure to follow the steps outlined by your local school division.
4. Understand Your Rights Under Virginia and Federal Law: Virginia state law and federal law both play a role in how complaints are handled in public school districts and private schools. Sovereign immunity may limit your ability to sue a school or school board directly, but there are exceptions—especially in cases involving gross negligence or willful misconduct by individual employees. Familiarize yourself with relevant laws, such as the Disabilities Act, Title IX, and state regulations governing school activities and discipline.
5. File a Formal Complaint: Depending on the nature of the violation, you may need to submit a written complaint to the school district, the school board, or a federal agency. For example, complaints about discrimination or sexual harassment may be filed with the U.S. Department of Education’s Office for Civil Rights. Each process has specific requirements and deadlines, so it’s important to act quickly and follow all instructions carefully.
6. Seek Guidance from an Experienced Attorney: Navigating the complaint process—especially when it involves complex issues like negligent supervision, personal injury, or violations of federal law—can be overwhelming. An experienced attorney can help you understand your legal options, advise you on the best course of action, and represent your interests if you decide to sue a school or seek compensation for injuries or other damages.
7. Utilize Community and Legal Resources: Don’t hesitate to reach out to community organizations, legal aid services, or advocacy groups specializing in public education, disabilities, or personal injury. These resources can provide valuable support, information, and assistance throughout the complaint process.
8. Follow Up and Monitor the Outcome: After filing your complaint, stay in regular contact with school officials or the relevant agency to track the progress of your case. Following up ensures that your concerns are being addressed and helps prevent further incidents of violence, discrimination, or bullying on school grounds.
By understanding and effectively navigating the complaint process, families and community members can help ensure that schools—whether public or private—provide a safe, respectful environment for all students. Knowing your rights under Virginia law and federal law, and seeking help from an experienced attorney when needed, is the best way to protect your child and hold school districts accountable for violations or injuries that occur on school property.
Why This Matters for Virginia Families
This case is heartbreaking. The idea that a non-verbal, autistic child could be mocked, hit, and sent home half-naked is shocking to the conscience. And yet, the government entity tasked with his protection cannot be held accountable in court because of sovereign immunity. It is crucial for parents to be aware of the specific legal protections and strict deadlines that apply when considering a legal claim against public schools or school divisions.
Here’s what families should take away:
- Suing a Virginia school board for injury is incredibly difficult. Unless there is a true vehicle accident involving a bus or school-owned vehicle, sovereign immunity will almost always bar claims—even when negligence seems obvious.
- Individual school employees can still be held responsible. If their conduct rises above simple negligence to gross negligence, they are not protected by the school board’s immunity.
- Abuse or negligence on a school bus is not automatically a waiver of immunity. Just because something bad happens on a bus doesn’t mean the bus was “involved in an accident.” Courts require more.
- Always consult an experienced personal injury lawyer early. These cases hinge on nuanced and highly technical points of law. One wrong assumption could cost you your claim.
If you believe your child has been harmed at a public school or by a school division, consider seeking a free case evaluation from a qualified attorney to better understand your legal options.
Important Deadline: Notice Requirements Under the Virginia Tort Claims Act
If you’re considering suing a government agency in Virginia, including a school board (in some limited cases), there’s another critical hurdle you must clear: the Virginia Tort Claims Act (VTCA) notice requirement.
Even when a waiver of sovereign immunity might apply, you must give formal written notice of your claim within a very short timeframe—or your case could be dismissed outright, no matter how strong it is.
What is the Virginia Tort Claims Act?
The VTCA allows certain types of lawsuits against the Commonwealth or its agencies (including public schools) when sovereign immunity has been waived by statute. But it comes with strict procedural rules, especially for giving notice.
What is the notice requirement?
- Who must receive notice?
You must send written notice of your claim to the Virginia Attorney General or the head of the responsible state agency (such as the superintendent or school board, depending on the entity involved). - When must you send it?
Generally, within one year of the date of the injury. If the case involves a minor, the deadline may be slightly extended—but don’t count on it without speaking to a lawyer. - What must the notice include?
Your notice must clearly state: - The date and place of the incident.
- A brief description of what happened.
- The names of people involved, if known.
- That you intend to hold the Commonwealth or its agency legally responsible.
- The date and place of the incident.
- A brief description of what happened.
- The names of people involved, if known.
- That you intend to hold the Commonwealth or its agency legally responsible.
Failure to meet these notice requirements can—and often does—result in dismissal of the claim, no matter how compelling the facts may be.
Why This Matters in School Injury Cases
Even in tragic situations like Z.M.’s, failing to send timely and proper notice under the VTCA could end the case before it starts. While the Court in this case ruled that the School Board was immune under Code § 22.1-194, plaintiffs in other cases who do meet the criteria must still follow the VTCA process to preserve their right to sue.
Final Thoughts
The Z.M. case reminds us that justice and the law do not always align. While the Virginia Supreme Court faithfully interpreted the statute, the result feels hollow to many who see a vulnerable child left without legal recourse against the institution responsible for his care.
If your child has been injured at school, on a school bus, or by school personnel, you need to act quickly and speak to a lawyer who understands sovereign immunity in Virginia.
At Osterbind Law, we help families in Central Virginia navigate these complex cases with compassion, skill, and a relentless focus on the truth. Call us today for a free consultation—we’re here to help. Contact us for a free case evaluation to discuss your potential legal claim.
