Sorry, Not Sorry

by Heather Castillo

Have you ever been involved in a Board-level grievance hearing and wondered, “How in the world did it get to this point?” It began with a simple mistake, a misunderstanding, or a less-than-respectful interaction, and then grew and festered into a grievance that went on for months. If the “offending party” had just promptly apologized or respectfully acknowledged his mistake, the grievance might have been resolved at the campus level or might not have been filed at all. The Administration finds itself in front of the Board at 10:00 p.m. (or later) because the “offending party” refused to apologize or acknowledge a mistake, or worse, attempted to justify it or shift the blame to someone else. In some cases, the “offending party” is not even present at the Board hearing.

Who is this “offending party”? It could be any employee. Here’s an example: A teacher who inadvertently miscalculates a grade. When a parent or the student questions the grade, the teacher responds in a condescending way and is slow to correct the grade.

Many grievances include a request (or demand) for an apology as part of the requested relief. Are these requests reasonable? Not usually, but in some cases, yes. Can a school district or one of its employees apologize or admit a mistake without creating legal liability? In some cases, yes. It depends on the specific facts of each case.

There are multiple legal articles that analyze the potential legal consequences for apologizing, the potential of apologies to avoid litigation, and the laws of various states that address the admissibility of apologies in court. For example, Texas Civil Practice & Remedies Code § 18.061 provides that a court in a civil case cannot admit evidence of a communication made to an accident victim or his family that “expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual involved in an accident” if it is offered to prove liability. However, a communication which also includes a statement concerning negligence or culpable conduct pertaining to an accident or event is admissible to prove liability.

A March 1, 2017, article written by John Council for Texas Lawyer magazine, entitled “In Litigation, Sometimes All It Takes Is Saying ‘Sorry’” discusses how apologies, while rare, sometimes assist in the settlement of lawsuits.[i] An interesting point in this article comes from Mark Lanier, a successful Houston plaintiffs’ attorney. He says he never asks the defendants he sues (drug manufacturers and medical devices companies) for an apology for fear that they will actually offer one. He wants juries to hear that no one ever offered his client an apology. Lanier says: “I’d hate for a witness to say ‘I’m sorry this happened.’ That takes the sting away from the jury. We live in a society that grants repentance and I want [the defendant] to be punished. I’ll only ask for an apology if they’re not going to apologize.”

Granted, school district grievances usually pale in comparison to lawsuits involving serious personal injuries and claims for millions in damages. But think of the Board of Trustees as the jury – a jury who can overturn the Administration’s grievance decisions or craft any other relief for the grievant that they see fit. A Board of Trustees generally expects the Administration to do all that it reasonably can to resolve grievances. The Administration will probably be in a better position before the Board if it can provide evidence that some type of apology was offered (if one was clearly due), or that a mistake was acknowledged and corrected.

Of course, some grievances cannot be avoided.  Some grievants are unreasonable. And, some will simply not stop until they get a Board hearing. As stated above, offering an apology or admitting wrongdoing can be complicated. It is always best to seek legal advice before doing so, especially if you might do so in writing, e.g., in a grievance decision letter.

If you or your staff have questions about a grievance, need assistance with responding to a parent or employee concern before a grievance is filed, or would like training related to any of these issues, the attorneys at Leasor Crass stand ready to assist.

[i] http://www.texaslawyer.com/id=1202779050706/In-Litigation-Sometimes-All-It-Takes-Is-Saying-Sorry