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How an Education Law and School Safety Expert Can Help Determine Liability in Sexual Abuse and Harassment Cases:

Years ago, when I taught preschool, I saw two of my kids skip off toward the bathroom together. “One at a time in the bathroom, please,” I called out to Ray and Kim. Ray stopped in his tracks, turned on the heel of one sneaker, and sat down at a table without looking in my direction. Kim, the more hyper of the two, kept on skipping — right into the bathroom, then closed the door. What if I hadn’t seen that they were heading into the bathroom together? What if they got into the bathroom and “something” happened? Should I have been concerned that something inappropriate could have taken place in the bathroom if they flew under my teacher’s radar?

I’m reminded of a case in which I served as an expert witness. A sixth-grader ran out of the boys’ room and down the hall past a surprised teacher. The teacher didn’t recognize the “blur” but was immediately attracted to the sobbing of another child — a little first grader stumbling out of the bathroom with his head down and pulling his pants up. What would you think? Who was supervising these students?

The teacher told her principal what she saw and eventually they identified the offending student, required that he be escorted around the school, and agreed that he would never go to the bathroom without someone around to supervise. But two months later — unsupervised — he sexually molested two other first graders in the bathroom. Did the school do enough to protect students from harm? It put a plan in place, but what went wrong? Is the school now responsible for the hurt inflicted on the two first graders?

What should an attorney consider?

In both of these scenarios, the school’s potential liability hinges on two key questions: Did the school and teachers meet the professional standard of care? And, did they act appropriately under the circumstances?

In the first case — my preschool class — it didn’t appear that sexual abuse was taking place, nor was there much of a risk. As an education administration and supervision expert, my call is that the teacher — me (and I’m trying to be unbiased here) — met the professional standard of care under the circumstances. I saw Ray and Kim heading off to the bathroom together, knew as a professional that it’s good supervision that one child be in the bathroom at a time, and intervened. But what if I didn’t see this? Suppose they went into the bathroom together and Ray went home later and complained to his mother that Kim put her hand down his pants? Would this be considered sexual abuse? Would the school have been liable for inadequate supervision? Inadequate supervision may have been a consideration if I hadn’t been aware enough to see two students about to enter the bathroom together. But even if such behavior took place, would it constitute sexual abuse and sufficient harm for a lawsuit to prevail?

In the second case — involving the sixth grader — the issues were far more complex. A determination of liability required a review of child behavior and a careful analysis of the facts.

Normal vs. abusive behavior

Children up to age 6 or 7 will engage in games, such as playing “house” or “doctor.” Both same-sex and opposite-sex experimentation are common. Normal sexual behavior refers to behaviors commonly seen among healthy children of this age: they ask sexual questions, they look at their own bodies and the bodies of others, and they engage in mutual touching.

Consider the questions below. In most cases, if the answer to each is “no,” then the behavior is probably not a problem. Does the behavior:

1. Put the child at risk for physical harm? Disease? Exploitation?

2. Interfere with the child’s development, learning, social, or family relationships?

3. Represent a violation of law?

4. Cause the child to feel confused, embarrassed, or bad about him/herself?

5. Cause others to feel uncomfortable?

6. Involve a lack of consent, a lack of equality, or some type of coercion?

The sixth question is important, because the behavior itself does not define sexual abuse. The nature of the relationship and the interaction between two children are more significant. Three factors define abusive behavior: lack of consent; lack of equality; and coercion.

Older kids may talk a first grader into doing something she doesn’t even understand. This is lack of consent. A younger child might be compliant and cooperate with an older child who says, “Pull your pants down” but doesn’t know why she is being asked to so.

Equality refers to the balance of authority in the relationship. It implies that two participants operate with the same level of power; neither controls the other. An unequal distribution of power — differences in age, size, or intellectual ability, for instance — sets the stage for a child who has the upper hand to take advantage of another.

Coercion is a force used to compel an individual’s behavior. It’s not uncommon for an older child who sexually abuses a younger one to threaten the younger child not to tell someone about the incident, or to bribe her with toys, candy, or other gifts.

An education expert’s opinion

Consider the questions above in the context of the hypothetical case of two preschool students entering the bathroom together and one alleging that the other touched him. Would you consider their behavior to be normal or deviant? As an expert in education administration and child supervision, I would be inclined to render an opinion that even if supervision was lacking, the students did not behave outside of the norm for their age.

What about the real-life case of the sixth-grader who molested two first graders in the bathroom? Let’s apply the three factors that define abusive behavior to the facts of this case:

• Lack of consent: The first graders did not consent to the sixth grader touching them sexually

• Lack of equality: The sixth grader was larger, older, and stronger than the first graders

• Coercion: The sixth grader threatened the first graders, telling them he would beat them up if they said anything to anyone about the incident

It was my opinion that the school administration breached the professional standard of care when it failed to implement the plan it set forth. The school had reasonable cause to believe that abusive behavior took place, recognized that the behavior could reoccur and, therefore, developed a strict supervisory plan to protect other students. Moreover, the school knew that the sixth grader was sexually aggressive when he was identified as the abuser in the first incident, and any reasonable school administrator could foresee the risk of this child again engaging in inappropriate behavior. By failing to implement its own plan, the school placed the students in harm’s way, creating an environment that led to others being abused.

Schools and other agencies responsible for the supervision of children have a duty to protect them from harm. This includes providing adequate staff training about child sexual development and state laws relating to reporting of child abuse, and the establishment and implementation of policies and procedures that protect children from sexual harassment and abuse.

A careful review and analysis of a case by an expert in education law and school safety may result in an opinion that confirms what appears to be obvious, but sometimes yields an opinion that transforms the case and differs from one’s initial reaction to an incident. An examination of the context of children’s actions often reveals the issues in play, leading to an appropriate determination of liability.

If you represent a plaintiff or defendant in a matter involving a claim of sexual harassment under Title IX or sexual abuse involving a teacher and student or student on student you can contact me at 609.397.8989 or edragan@edmgt.com to discuss the issues and to determine whether my expertise would be beneficial to a resolution of case.