There is considerable variation in state law on the question of governmental immunity. In a few states, governmental immunity protects school districts from liability for the tort of negligent hiring or retention. Some states allow suits regarding nondiscretionary functions only. Others limit the dollar amounts that may be collected. Still others permit suits only for personal injury or death or only regarding dangerous conditions of property. A few states generally allows tort suits against teachers only for “willful and wanton” misconduct, but this rule is subject to exceptions that make schools vulnerable to certain other kinds of suits. Despite these variations, the trend is to limit governmental immunity, thus increasing the likelihood of school districts being held liable for tortious acts.
In addition to governmental immunity, a second type of immunity protects certain government officers from tort liability. Judges and legislators enjoy absolute immunity from tort suits regarding judicial or legislative acts even if performed in bad faith, with malice, or with corrupt motives. School board members as individuals traditionally enjoy absolute official immunity.
In recent times, many states have enacted statutes revising common law official immunity doctrines. These statutes may draw distinctions regarding the scope of immunity in terms of discretionary acts versus ministerial acts, acts within the scope versus outside the scope of employment, or curricular versus noncurricular functions, among others.
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