December 15, 2017

Professional Standard of Care in Past Cases of Child Sexual Abuse in Public and Private Schools

school sexual abuseStandard of care is a general expression of what constitutes care in professions such as medicine, nursing, education, or child care administration. In schools and other agencies responsible for the care and supervision of children, the professional standard of care is the ethical or legal responsibility of a professional to exercise the level of care, diligence, and skill that other professionals in the same discipline would apply in the same or similar circumstances. This, coupled with statutory requirements and case law, defines the care that an educational professional is responsible for providing to children which includes protection from child sexual abuse.

In the field of education administration and supervision, as in most professions, the standard of care changes over time. The standard regarding what constitutes sexual harassment and child sexual abuse has evolved over decades. At times, our firm is asked to review a case that took place a couple of decades ago or even longer. When addressing the question of whether a school or other child-related agency met the professional standard of care, we must determine what the accepted standard and practice was at that time of the alleged child sexual abuse or other harmful incident.

 

Evolution of the Standard of Care Regarding Sexual Harassment and Child Sexual Abuse

The current standard of care requires that a public or private school has clear policies prohibiting sexual harassment, that such a policy identifies a trained person to be notified with a complaint, and that it outlines and documents the investigative process and the results of the investigation. Before Title IX became law in 1972 and the Office of Civil Rights published declarative information to school administrators, standards of care varied. If an incident of sexual harassment or abuse occurred in 1968, the standards articulated in Title IX were not applicable as a matter of law. However, ethical and other community standards, as well as local board of education and agency policies and practices, may constitute the standard by which the behavior of professionals at that time can be judged.

The earliest standards defining the rights of children were reflected in the Declaration of the Rights of the Child, adopted by the United Nations General Assembly in 1959. This policy statement stressed 10 principles affirming the right of children to receive special protection, to be given opportunities and facilities that enable them to develop in a healthy and normal manner, to receive an education, and to be protected against neglect, cruelty, and exploitation, including child sexual abuse. This general edict became more specific as individual countries began to develop legislation regarding the care and protection of children and as case law began to define neglect, cruelty, and exploitation — including sexual exploitation and child sexual abuse.

Over the past 20 years, our society has become more aware of the problem of children being sexually harassed and abused by adults representing religious and educational organizations. Cases such as Franklin v. Gwinnett County Public Schools in 1992 and Davis v. Monroe County Board of Education in 1996 defined sexual harassment and identified how a school’s complacency created an abusive environment depriving a student of educational benefits.  The Supreme Court ruled in the Franklin matter that monetary damages could be awarded to individual victims of sexual harassment under Title IX and a school district could be held financially liable for a coach’s predatory behavior toward a student athlete.  In the Davis matter, the Supreme Court decision helped to clarify the definition of sexual harassment of one student toward another and further clarified the professional standard required of schools. The court held that a private Title IX damages action may lie against a school board in cases of student-on-student harassment — but only when the school has actual knowledge of sexual harassment that is so severe, pervasive, and objectively offensive that it effectively deprives the student of access to education and was deliberately indifferent to this activity.

Another Supreme Court case that further established the professional standard of care was Gebser v. Lago Vista Independent School District, a case that addressed the issue of teachers who engage in sexual relationships with students. In this case, the Supreme Court determined that school districts are not liable under Title IX for teacher–student sexual harassment unless a responsible employee actually knew of the abuse and had the power to end it but failed to do so. These cases, along with standards from the Office of Civil Rights of the Department of Education in the form of “Dear Colleague” letters, contributed to the evolution of standards.

Though educational institutions, including K-12 schools and university level institutions, became subject to Title IX regulations in 1972, it was not until Franklin, Gebser and Davis were decided in 1992, 1998 and 1999, respectively, that the Supreme Court would define how schools can be held accountable under Title IX for sexual harassment. For allegations that occurred within the intervening quarter century, it can be challenging to identify and define the professional standard of care. However, there are other statutes, such as state child abuse-and-neglect laws and board of education policies written within that time span, that can help to identify the professional standard of care. For example, California enacted its first child-abuse reporting law in 1963. Before then, there was no legislation that defined the professional standard of care, such as mandatory reporting of suspected child abuse and neglect.  At that time, mandated reporters were subject to liability for making reports of abuse that turned out to be unfounded, and this thwarted reporting until the law was revised in 1980, when failure to report child abuse was criminalized and mandated reporters were given immunity for making reports. The California example has become the standard around the country. This is an example of how important it is to be aware of the prevailing professional standard when addressing the circumstances of a situation. Before the change in the California law, if a teacher had suspicion that a child was being abused, that person may not have reported it out of fear of reprisal. It doesn’t make that right, but when looking at the failure to act on the part of a teacher, one must take into consideration the laws and standards at the time that often set the moral compass.

A prohibition of inappropriate sexual behavior was not mentioned decades ago in documents of the National School Boards Association, the American Association of School Administrators, or other recognized standard-setting organizations. Without a specific standard against which to compare what the administration of a school or agency did or failed to do, a plaintiff may have a more difficult time proving a breach of the standard. On the other hand, when there is statute, regulation, or policy identified within a specific timeframe and the allegation of abuse falls within an era in which these standards were acceptable in the field, then as an expert witness I am able to use those as benchmarks. When standards are in place, the plaintiff will have a better likelihood of successfully arguing that the standard was breached.

 

Case examples: Determining Standard of Care in Past Child Sexual Abuse or Harassment

When an attorney engages our firm to render an expert opinion about whether a school or other child supervisory agency in the United States or Canada may be liable for an alleged incident in the past, the complexities inherent in changing standards — such as the example of California law — require us to research and identify the standard of care at a specific time or period to render an opinion as to whether the school or agency met that standard.

For example, one of our case reviews involved alleged ongoing sexual harassment and child sexual abuse by a teacher between 1982 and 1989. A former elementary school student alleged that his teacher sexually abused him over that period while providing tutoring services at the student’s home. My review of the professional standard of care at that time revealed that there was no standard, statute or regulation, or board of education policy that required the school to develop a policy regarding sexual harassment of students by employees or to provide training to employees regarding sexual harassment. Additionally, there was no board of education policy requiring the school to develop standards regarding the provision of tutoring. During this timeframe, the professional standard of care did not compel the school to monitor outside teacher–student relationships, including tutoring relationships that parents arranged for and approved. In comparing today’s standard with that in the 1980s, one finds that because of the development of laws such as Title IX and the understanding that children are targeted by some teachers who sexually harass and abuse them, the standard of care is very different. Nowadays, the professional standard of care requires that schools provide employees with training on detection and prevention of sexual harassment, child sexual abuse and behaviors and ethical boundaries that cross the line of a typical teacher–student relationship. The opinion reached, following a review of testimony and documents, was that the school did not breach the professional standard of care at the time because none clearly existed.

Another case illustrates the challenges that exist when attempting to identify the professional standard of care over a period of time that might extend decades. This case was based on an allegation of physical, emotional, and sexual abuse of students with disabilities in a residential school. The timeframe of the allegations of abuse spanned from 1951 through 2012. The state Department of Education was responsible for the supervision of educational programs in this publicly supported and funded school. It was also in charge of inspection, the improvement of instruction, and the protection of disabled students. As part of the review of this case to render an opinion as to whether the government, the Department of Education, and the school collectively and independently met the applicable standard of professional care within this timeframe, we began by reviewing legislation from the early 1900s that placed the education of disabled students, including the plaintiffs in the lawsuit, under the authority of the government. The claims in this case, specific to the school, spanned six decades, during which time standards of care changed from decade to decade. The challenge of this review was to identify each standard on a timeline from 1950s for each decade through the present and determine whether the involved entities met the standard for the protection of students with disabilities who were under the control, care, and supervision of the government.

In some cases, including this one, basic parental standards are considered when no other standards exist. This is done under the theory of in loco parentis and the school’s basic responsibility to protect students and act as any reasonable parent would, based on the circumstances and known information. For example, if the dorm supervisors in 1950s were aware that male students were entering rooms of female students at night and female students complained of inappropriate behavior or sexual conduct, the school had a responsibility to ensure that students are appropriately supervised to prevent such situations, as any reasonable parent at that time would do.

When reviewing such cases, to render an opinion as to whether a school or agency acted appropriately and reasonably and met the professional standard of care, we first determine what the accepted standard was during the relevant period of the allegation of child sexual abuse or other harmful incident. Next, we consider the standards as defined by the school or agency, based on the existing policies and procedures at that time. By applying the education, training, and professional experience of an education administrator to the review of the issues of a case and the relevant standards at the time, an opinion is rendered as to whether the school or agency met the professional standard of care within the field of education administration and supervision.

Private School Sexual Abuse and Harassment: Professional Standard of Care

title IX private schoolTitle IX, the law that prohibits discrimination on the basis of gender in public education programs, is also relevant in application of professional standards within the context of private school sexual abuse and harassment and their response to alleged incidents.  Every school that accepts federal funding for any program or service it provides must adhere to Title IX. Most public schools, including charter schools and specialized education service commissions, accept federal assistance and, therefore, must comply with Title IX. Compliance requirements include, among other things, the development of policies prohibiting sexual harassment and assault, prompt and thorough investigation of complaints, training of staff, and the assignment of a person who oversees implementation of the law. Whether in a public school, residential program, or private school, Title IX standards capture and represent the professional standard of care and the best way to prevent and address sexual harassment or abuse of students — which are foreseeable in any educational setting.

Most private schools do not receive federal assistance, rendering those schools exempt from Title IX requirements. However, that does not mean they do not have a professional responsibility to protect their students from sexual harassment or abuse. The evolving professional standard of care in the field of education administration and supervision is that even if a private school is legally exempt from Title IX compliance, it has a responsibility to protect students from harm, such as that which may result from sexual harassment or abuse. In schools that do not accept federal assistance, the development of policies and procedures modeled after Office of Civil Rights (OCR) “Dear Colleague” letters to public school administrators will help to protect students from harm and may shield the school from costly litigation. The most recent letter begins by stating, “The U.S. Department of Education and its Office for Civil Rights (OCR) believe that providing all students with an educational environment free from discrimination is extremely important. The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.”

 

Applying Title IX Standards to Private Schools

In any school, the overall administrative goal is to create a positive learning environment in which students can reach their academic, social, and emotional potential. A hostile learning environment, which can be created by ongoing sexual harassment and abuse, prevents students from benefiting from their education. This may present a cause of action under Title IX in public schools or under breach of contract in private schools.

The elements of Title IX are universal in any educational setting, including private schools. When a private school applies Title IX standards in policy development and implementation, a positive effect on the learning environment will follow. One way for a private school to protect itself from sexual harassment allegations is to have a policy that conforms to best practices in the field. These best practices are found in the aforementioned Dear Colleague letters, which provide Title IX guidance and discuss application of specific elements of the law. Additional information from the Department of Education, including these letters, are available at the U.S. Department of Education Reading Room.

Policies developed by a private school should clearly state that the school does not tolerate sex discrimination or harassment in any form by anyone: students; teachers; contracted employees; or other school staff. The policy must be published and disseminated to all students, parents, staff, and anyone else associated with the school or who would come in contact with students, such as bus drivers, cafeteria and custodial staff, or parent volunteers. Having such a policy, distributing it widely, training staff and others about it, and implementing it will help to protect students and the school.

In private residential schools where students spend 24 hours a day on the premises, there is more opportunity for sexual misconduct to occur. In these settings, protecting children is particularly challenging. However, with clear supervisory policies and procedures that adhere to the professional standard in the field, training of staff and children, establishment of reporting systems, and immediate investigation of complaints, private schools with residential components will have a better chance to defend a negligence lawsuit.

Private schools should identify a person in the school to oversee the prevention, identification, and remediation of sexual harassment or abuse. That person should be knowledgeable about the requirements of Title IX in public schools and the Dear Colleague letters, and should be able to apply the standard toward the development of school policy, inform the school community of its requirements, and monitor its implementation. The most recent Dear Colleague letter, issued April 4, 2011, provides guidance on the unique concerns that arise in sexual violence cases, such as a school’s independent responsibility under Title IX to investigate (apart from any separate criminal investigation by local police) and address sexual violence.

 

Addressing Sexual Harassment and Abuse in Private Schools

A student at a private school may sue for breach of contract or negligence, whether or not the school accepts federal assistance and is bound by Title IX. If the contract between the private school and parents specifically states or implies that the school will protect students from harm, adequately supervise students, or otherwise assure their protection, then a student who is sexually harassed or assaulted on campus or in the residence hall may file a lawsuit claiming breach of contract for lack of security. Additionally, a claim of negligence can be made if the school had policies and procedures meant to protect students from sexual harassment and abuse but failed to implement them.

For example, in one of the cases we reviewed, a private school had no specific policy addressing sexual harassment of students by staff. A staff member used a school vehicle to pick up a student from her residence in the early evening to engage in sexual behavior. In addition to the question of whether the staff member was appropriately supervised, the school’s marketing material and the contract between the parents and the board of trustees clearly implied that students would be supervised at all times, including after curfew. The publications from the school specifically stated that students would be in a protective and secure environment. Because the student was not appropriately supervised, she was able to leave her residence and meet the staff member for sex. As the expert witness on this case, I reached the opinion that the school breached its own standard of care and was negligent by failing to adequately supervise students. This breach of policy created a situation that otherwise would not have existed and placed this student in harm’s way.

Even in a situation where the private school does not have a policy covering sexual abuse or harassment, the prevailing professional standard of care will apply. For example, if a student tells the principal or headmaster of a private school that he or she is experiencing sexual harassment from a teacher, the professional standard is that the school administration follow through by conducting an immediate and thorough investigation.

Though the school may not have a policy mandating this course of action, as an education administration and supervision expert witness, I can attest that the information and procedures published by the Office of Civil Rights are widely accepted in the field as the standard of care. The standard will emanate from accepted good practices in the field and from information provided by the Office of Civil Rights, regardless of whether the private school has a policy prohibiting sexual harassment. Failure to follow this standard may leave a private school liable for damages in the event of a lawsuit.

Professional Standard of Care in the Field of School Administration and Student Supervision

professional standard of careParents are responsible for the protection and care of their children, and there may be legal consequences if a parent negligently fails to take reasonable steps to protect his or her child from harm. As with parents, entities and agencies charged with the care and supervision of children are responsible for the protection of their health, safety, and well-being. A partial list of such entities or programs include daycare centers, preschools, summer camps, YMCA centers, K–12 private and public schools, private schools that provide residences for students, and residential centers for adjudicated youth. When a child is placed into the care and custody of such an organization, that entity assumes control and supervision over the child comparable to parental care — and is held to even a higher professional standard of care established within the field of education.

If a child is injured and if it can be demonstrated that the entity responsible for supervision and care of the child failed to act appropriately and reasonably under a specific circumstance, it might be liable for such events as wrongful death, serious personal injury, or sexual assault. Once a child is under the care of professionals in such programs, specific legal standards and the professional standard of care become important factors in assessing whether the agency, through its administration and/or employees, met those standards and whether the breach of legal or professional standards may have contributed to harm.

 

Professional Standard of Care Defined

The professional standard of care is defined as the level and type of care that a reasonably competent and skilled professional, with a similar background and in the same setting, would have provided under the circumstances that led to the alleged injury. This is the watchfulness, attention, caution, and prudence that a reasonable person in the circumstance would exercise. If a person’s actions do not meet this standard, then his or her actions fail to meet the duty of care and, therefore, fall outside the professional standard of care.

In matters involving tort claims, the standard of care required when children are involved is for those in charge to act reasonably in view of the probability of injury to a child. The standard is not that of an insurer of safety but, rather, that reasonable precautions and responses are taken in light of the circumstances. Schools, day care centers, and camps have a responsibility to provide reasonably safe premises, considering the nature and conduct of children who will be using the facilities. However, when an agency is responsible for the safety of children, performing the standard of care expected of a prudent citizen or parent is not adequate; the standard of care in this instance is that of a reasonable and prudent professional. This means that a physical education teacher, for instance, would have to act as both an ordinary, reasonable person and as a reasonable and prudent physical education teacher. The standard of care is measured by the judgment, knowledge, experience, training, perception of risk, and skill that a person in the capacity of a professional would have. Often, the application of an expert’s education, training, and professional experience becomes the pivotal point to determine whether, in a particular circumstance, a teacher or other professional met the professional standard of care.

Failure to meet a standard in a particular field, such as education administration and supervision, is negligence, and any damages that result may be claimed in a lawsuit by the injured party. This encompasses both the legal and professional standards within a field. At times, the standard is often a subjective issue about which reasonable people can differ. Some professional standards of care in the field of education administration and supervision are clearly defined in law, such as in Title IX of the Education Amendments of 1972. Title IX requires every school district to identify a person who will act as a Title IX coordinator. If the school has not identified such a person, then it has not met the legal standard of care. In a different circumstance, there may not be a statute to define a legal standard of care but within the field, there is an acceptance of how things are typically done. For example, there may be no state regulation regarding the staff-to-student ratio when supervising students on a playground during recess. Some school districts have their own policies or rules about staffing and student supervision, but in their absence, local standards, common sense and good administrative practice prevail.

 

Failure to Apply the Professional Standard of Care Can Result in School Negligence

If a school administrator knows that a student is being harassed but doesn’t take immediate action to eliminate the harassment, prevent its recurrence, and address its effects, the administrator may be acting outside the professional standard of care. On the one hand, there is a legal standard that is articulated in Title IX — that immediate action be taken — but on the other hand, what within the professional field defines immediate? Is immediate within one hour, five hours, or three days? The answer — and what becomes the professional standard of care — depends upon the circumstances. Additionally, assessing whether the action taken was sufficient to eliminate the harassment does not fit neatly within the strict legal standard of care, but more appropriately fits in the professional standard of care. This must be determined within the specific context of an event.

For example, did a principal act within the professional standard of care when, upon being informed of sexual harassment of a student by a classmate, he waited until the next school day to address the report? This depends on the context of the situation and nuances that would be understood by an experienced education administrator. As an education administration and supervision expert witness, I utilize my education, training, and professional experience as a school administrator to review the allegation and the report, examine the circumstances from a school administrator’s point of view, and render an opinion as to what a reasonably competent and skilled professional would have done under the circumstances. Although the law may use the term “immediate” action or response, the context of the situation allows the expert witness to opine as to whether the administrator’s action or inaction met the professional standard of care.

Within the daycare industry, there are many legal standards that must be met in order for a school to obtain a state license. One example is that a specific child-to-adult ratio be maintained in the classroom and during recreational activities. However, once children are outside being supervised by the appropriate number of staff, judgements based on circumstances might need to be made: Should the child be restricted from play if he becomes overly aggressive? Should children be kept away from the grass that was just cut? Should a child be sent to the nurse because she complains of a headache? These are decisions that are made based on the professional standard of care. There may not be a defining legal standard or school policy restricting a child from playing with others. As the professional, the supervising staff member must make a decision based on the circumstances, the nature of the child, and any safety issues, such as the location. Overall, the person in charge must act as a prudent professional under the circumstance to protect the health and safety of the children in his or her charge.

 

Legal and Professional Standards of Care for Children with Disabilities

The most vulnerable children in a school are those with disabilities who, at times, may be unable to defend themselves. An important aspect of protecting children with disabilities is for a school to identify a child’s learning, emotional, and social abilities and develop an Individual Education Program (IEP) to protect the child from harm. There are legal and professional standards of care when a school is responsible for the protection of vulnerable children. The legal standard of care is that every public school district identify students who may be individuals with disabilities and who may benefit from special education and related services. Once a child has been identified as in need of specialized services, then the school, as a matter of the professional standard of care, should determine what services (such as an aide) would be needed to keep the child safe. If a student was neither identified as an individual with a disability nor provided with an IEP and then engaged in sexual behaviors with peers, it might be relevant that the district did not identify this student as one who was having social or emotional issues that negatively affected his or her education. If the student was not identified as one who could benefit from special education but should have been, there may be an argument for the district having breached the legal standard of care — that is, for not developing an IEP, a behavioral plan, and a safety plan for the student. In this example, the professional standard of care may focus on earlier behaviors noted by teachers and whether a teacher who had this knowledge sought to have the student evaluated in order to develop an IEP. Whenever the legal and professional standards of care are examined in a situation involving a student with a disability, it is important to engage the services of an expert witness with experience in the special education field.

When professionals take over for parents in schools, daycare centers, camps, and other organizations they have a responsibility to protect those children and act the way a reasonable parent would act. But this alone is not enough. They also are responsible for providing the care expected of a professional person in the field of child supervision.

Post-Election Hostile School Environment: Protecting Students from Bullying and Harassment

post election school climate

Schools, including K-12 schools, colleges, and universities, have a responsibility to protect their students from harm. Harm includes the inability to benefit fully from education as a result of being in a hostile school environment. The politically motivated rhetoric and actions seen in schools during and after the presidential campaign can create a hostile school environment for which schools can be held responsible.

Many of the attorneys who seek Education Management Consulting, LLC’s expert witness services are involved in litigation over the actions of students toward classmates. In these cases, attorneys want to know whether the school administration responded appropriately and reasonably under the circumstances. Each state has a law that requires schools’ governing bodies to develop and implement policies ensuring that students’ educational environment is free from hostility and is conducive to learning. When campaign rhetoric and the election results spark hateful harassment, intimidation, or bullying, resulting in a hostile school environment, schools must follow state law and respond according to the policies put forth by boards of education, colleges, or universities.

When a group of eighth-grade students intimidate a Latino student by saying, “You have to go back to Mexico now,” and, “You won’t be able to come back to school because there will be a wall to keep you out of our country,” the school needs to address this behavior. The student in this scenario refused to go to school after this occurred on three separate occasions. It can be argued that if the school knew or should have known about the harassment and failed to intervene to end the behavior, resulting in a hostile school environment, there may be an argument that the school breached the professional standard of care and may be liable for damages.

According to a survey by the Southern Poverty Law Center, there were almost 900 incidents of “hateful harassment” nationwide in the 10 days following the presidential election. Schools were the most common venue for these incidents, a result the center called “not surprising, given how prevalent bullying is in our nation’s schools.” The findings correlate with those of a previous study conducted by the center, which reported that the campaign’s scorching words had a “profoundly negative impact” on students. In the earlier study, more than half of teachers said they had seen an increase in harassment, intimidation, and bullying of students whose race, religion, or nationality was the target of political rhetoric resulting in a hostile school environment for all students.

This kind of behavior, when it occurs in schools, colleges, and universities, constitutes harassment (and, under certain policies, intimidation and bullying). Yet 4 out of 10 teachers who responded to the Southern Poverty Law Center’s post-election survey didn’t think their school had a real plan of action for dealing with bias and hate incidents. Some teachers interviewed by CNN said their schools could benefit from better resources and training for teachers, administrators, and staff.

No federal law directly addresses bullying in schools, however bullying in certain instances can overlap with discriminatory harassment based on protected classes. When intimidating, harassing and bullying behavior occurs, there may be a breach of federal civil rights or antidiscrimination laws or state laws against discrimination. No matter what label is used (e.g., harassment, intimidation or bullying), a school that fails to respond appropriately to harassment of students based on race, color, national origin, sex, age, disability, or religion may be violating one or more civil rights laws enforced by the Department of Education and the Department of Justice.

Determining the Professional Standard of Care in Cases Involving Harassment, Intimidation and Bullying

When Education Management Consulting, LLC reviews a case involving a hostile school environment and student harassment, our staff, after determining the issues surrounding a complaint, identifies the standard of professional care. The standard is identified in federal and state statutes, regulations, and advisories to administrators, as well as the policies of the board of education. Next, we review all testimony, reports, and other available information to identify the incident(s) that may have occurred, to whom they were reported, how the school responded, and in the opinion of our education expert witness, whether the school acted appropriately and reasonably and within the professional standard of care under the circumstance. The school may not have been informed of the harassing behavior, and in that case, would not have an obligation to supervise students any differently. If the administration, however, has knowledge of the harassing behavior, the school, through its administration and/or other employees, is responsible for supervising students differently to end the harmful behavior.

A plaintiff’s attorney will need to show that the school had policies to address harassment, that the administration had knowledge or should have had knowledge that harassment occurred, and that ignoring that information caused the harassment to continue or worsen. Additionally, the plaintiff’s attorney will need to show that the harassment was responsible for the creation of a hostile school environment to the extent that the student failed to benefit fully from his or her education.

A defendant’s attorney will need to show that the school had policies to address harassment, that staff was adequately informed and trained regarding the policies, that there was no knowledge of the alleged harassment nor should the school have known of it, and that the plaintiff did not experience a hostile learning environment and continued to benefit from their education.

School Duty Regarding Harassment, Intimidation, Bullying and School Climate

Anyone can report harassing conduct to a school official. When a school receives a complaint, it must take certain steps to investigate and resolve the situation while implementing school policies and procedures. These include:

  • Taking immediate and appropriate action to investigate or otherwise determine what happened
  • Ensuring that an inquiry is prompt, thorough, and impartial
  • Interviewing the targeted students, offending students, and witnesses, and maintaining documentation of the investigation
  • Communicating with the targeted students regarding the steps taken to end harassment
  • Checking with the targeted students to ensure that the harassment has ceased
  • Reporting any criminal conduct to the authorities
  • Implementing the school’s code of conduct and discipline for the offenders

When an investigation reveals that harassment has occurred, a school should take steps reasonably calculated to end the harassment, eliminate any hostile school environment, prevent harassment from recurring, and prevent retaliation against the targeted student(s) or complainant(s). In addition, schools should be proactive and ensure that students, parents, staff, and the community are trained and receive information on the prevention of harassment, intimidation and bullying motivated by political rhetoric and based on race, national origin, color, sex, age, disability, and religion.

Successfully Resolving Harassment Complaints to Avoid a Hostile School Environment

Appropriate responses will depend on the facts of each case. Following a complaint or observation of inappropriate harassing or intimidating behavior, school officials must conduct an “environmental scan” to determine what occurred, who was involved in what occurred, when and where it occurred, and what could have been done differently to avoid the behavior. Once an investigation is completed, the school should continue to monitor the situation, respond to harassment, and take reasonable steps when crafting remedies in order to prevent a hostile school environment. The remedies should include responses intended to minimize burdens on students who were targets of the harassment. Possible responses include:

  • Develop, revise, and publicize the school’s policy prohibiting harassment and discrimination; Grievance procedures for students to file harassment complaints; Contact information for the Title IX and Title VI coordinators
  • Implement training for staff and administration on identifying and addressing harassment
  • Implement training for students on identifying and reporting harassment
  • Provide monitors or additional adult supervision in areas where harassment occurs
  • Determine consequences and services, such as counseling, for harassers, including whether or not discipline is appropriate
  • Limit interactions between harassers and their targets
  • Provide the harassed student an additional opportunity to obtain an educational benefit that was denied (e.g., retaking a test or class)
  • Provide services to a student who was denied a benefit (e.g., academic support services, counseling)

Schools Should Be Diligent, Watchful, and Responsive to Avoid a Hostile School Environment

What motivates students or gives them the impression that they can inappropriately express their bias, anger, or feelings about a classmate can come from various sources, including what is heard through the media, what is heard in the home, and political attitudes and expressions from candidates. Freedom of expression is cherished, but where it enters the light of harassing, intimidating, or bullying behavior that insults or demeans any student or group of students or severely or pervasively causes physical or emotional harm to the student, the school has a responsibility to intervene to end the behavior. If one student tells another student of Middle Eastern national origin, “Get out of this country. You are going to be kicked out. We don’t want you here,” this likely rises to the level of prohibited harassment, intimidation, or bullying. When a school administrator, teacher, or staff member observes such behavior or receives a report of such behavior, the school must immediately apply its policy, conduct an investigation, effectively discipline the offending student(s) according to the student code of conduct, provide support services to the victim(s), and implement other programs and services to inform students of school policy and the consequences of violating it. In the wake of the election, every school should assess the climate within its own walls and develop approaches that provide learning experiences for the students and not a forum for hate.

If a school district or board of education has an appropriate policy; has effectively communicated the policy to its staff and students; provided additional staff and student training programs that cover divergent political views, tolerance, and acceptance; and, acts immediately upon a report of harassment, intimidation, and bullying related to the fallout from the election, the school will have a better chance of defending itself after an incident occurs. On the other hand, if a student brings a lawsuit against the school and can demonstrate that he or she was intimidated because of national origin and that the school was lax in the implementation of its policy, the plaintiff’s attorney will likely have a better chance to prevail.

It is likely that the post-election hostile school environment and climate will continue to embolden some students to harass and intimidate classmates based on their ethnicity, gender identity, sexual orientation, religion, or national origin. No doubt, many schools will be more active in responding to incidents. Before such behavior enters the realm of litigation, schools may be able to respond in a way that not only will protect students from the harm of a hostile school environment, but educates students about acceptance, tolerance, and community.

Title IX and Sexual Violence at Colleges and Universities

sexual violence at universitiesTitle IX of the Education Amendments of 1972 is a federal civil rights law that prohibits discrimination on the basis of sex in any education program, including in colleges and universities, if those programs or activities associated with the institution receive federal funding. Under Title IX, sex discrimination includes sexual harassment, sexual battery, sexual assault, rape and other sexual violence at school, college or university campuses. Any behavior that disrupts a student’s access to an educational opportunity or benefit constitutes a violation of Title IX. Recent media coverage has brought to light the controversy over the six-month sentence for a former Stanford University student for the rape of a student on campus. There has been outrage over the sentence, and that outrage might be justified, given schools’ responsibilities in similar cases.

The Washington Post reported on June 7, 2016, that nearly 100 colleges and universities had at least 10 reports of sexual violence and rape on their main campuses in 2014, according to federal campus safety data. Brown University and the University of Connecticut tied for the highest annual total — 43 each. In our experience as education administration and supervision and Title IX expert witnesses, many, if not most, sexual offenses against students go unreported to school officials because victims and others who might know of such violations don’t know that their school has a duty to implement Title IX. Colleges and universities are required to develop, publish, and distribute policies against sex discrimination that identify and designate a trained Title IX coordinator, respond promptly to harassment and sexual violence that create a hostile environment, prevent its recurrence and address its effects, provide immediate help for the victim, and conduct an impartial investigation to determine what occurred and take appropriate action. A hostile environment exists when a situation of a discriminatory or sexual nature creates an adverse educational setting, there exists an intimidating or offensive environment that causes a person to; be fearful or there is a setting that denies, limits or interferes with a student’s ability to participate in or benefit from a class, program or activity.

Laws governing schools’ responsibility and how they are to respond to complaints of sexual harassment and abuse are the “hard” elements that are reviewed when answering the question of whether the school acted reasonably within the standard of professional care in a particular circumstance. Schools might have all the appropriate policies in place, but if the culture of the institution doesn’t foster implementation of the standards, then it is not unreasonable to expect that students may be victimized. Victimization occurs first when they are abused, but a second time by the school when the administration fails to provide victim assistance, allows the alleged perpetrator and victim to be together on the same campus, and doesn’t conduct an investigation in a timely manner.

A Brown University spokeswoman told the Post that the university “works very hard to cultivate a culture of forthrightness so this traditionally underreported crime can be addressed and our students receive appropriate services and support.” The concern here is that sexual violence and crimes against students were “traditionally” underreported. One must consider the “tradition” of our educational institutions that encouraged underreporting of such crime. Another spokesman for the university suggested that the relatively high number of incidents at Brown, compared with other universities, is indicative of a culture of openness: “The fact that 43 incidents were reported indicates that we are building trust among our campus community members in how the university responds to reported incidents of sexual and gender-based violence.”

 

Title IX Policies Are Only Effective if Implemented

Many of the cases for which Education Management Consulting, LLC, is engaged to provide consultation and expert witness services require us to review the issues and render an opinion as to whether a high school, college, or university acted reasonably and within the standard of professional care. This is often the heart of the matter when a plaintiff claims that he or she suffered as a result of the school not implementing its own Title IX policies.

In one case, for example, a female college student was sexually assaulted by a basketball player in her dorm room and alleged that for six months following the assault, she was harassed and taunted by students whom the perpetrator told about the violation. Her lawsuit claimed that she was not informed of the college’s Title IX policy, her right to be protected, and how to report the behavior against her. A representative of the school knew of the assault, yet there was no report of it to any school official or the police. Because there was no report the school, authorities were not aware and had no reason to investigate. The school argued that because it had no actual knowledge of the violation, it had no responsibility for the continued harassment of the student.

Our review indicated that the school had very good policies, but those policies were not effectively transmitted to its students and staff. Very few students knew that there was a person on campus designated to enforce Title IX and did not know how to report violations on campus. When students do not understand their right to be protected from sex-based harassment, abuse, and  sexual violence, when school authorities fail to take seriously their duty to protect students from the harms of such behavior, and when violators are allowed to continue such behavior, our schools are letting down the very people they are meant to enrich and educate.

Colleges and universities, as well as elementary, middle, and high schools, exist — or should exist — for their students. Creating a climate in which students are able to learn and reach their academic, social, and emotional potential is — or should be — the primary goal of the school. Students can’t learn in a climate that allows or encourages offensive student behavior. Schools have a duty to be proactive in ensuring that they are free of sex discrimination, including harassment and a hostile school environment related to sexual violence.

 

Title IX Compliance Checklist for Colleges, Universities and Public Schools

Colleges and universities can argue that they are in compliance with Title IX if they can demonstrate that they:

  • Employ a Title IX coordinator who is properly trained to investigate and resolve cases and is involved in all incidents of sexual violence, harassment, and discrimination;
  • Do not act with deliberate indifference to a report of an incident and take immediate action to educate the student body and staff to prevent similar incidents from repeating;
  • Take immediate action to prevent the development of a hostile environment and eliminate the potential for retaliation and/or harassment by suspending or removing the accused while an investigation is pending;
  • Fully investigate under a Title IX coordinator and take appropriate action, even if there is a campus or community police investigation pending or taking place at the same time;
  • Do not use mediation as a tool to resolve cases of sexual harassment or sexual violence and avoid placing the burden on the victim;
  • Use the preponderance-of-evidence standard and stick to timelines for hearings and administrative action;
  • Are proactive in training faculty, staff, and students regarding sexual violence, sexual harassment and discrimination, in order to create a positive learning environment regardless of whether there is a complaint;
  • Offer and provide counseling services, regardless of whether the alleged victim wishes to file or formalize a complaint: and,
  • Widely publicize the school’s policy, provide adequate training to student body and staff, and ensure that policy is consistently implemented.

Schools are required to take immediate steps to address incidents of sexual violence and/or harassment and prevent it from affecting students further. Schools may not discourage victims who do report incidents from continuing their education. Student victims have the right to remain at school and participate in every educational opportunity available to them. It is the school’s responsibility to adequately respond to incidents and implement policies and procedures that protect student victims from further harm.

 

Off-campus Sexual Violence Incidents and Hostile School Environment Under Title IX

A hostile school environment can develop whether an incident took place on or off campus. Sexual harassment and sexual violence and abuse between students on a school-sponsored trip or at a school-sponsored event, or even outside of school between students are cause for the school to implement appropriate policies. For example, an act of sexual harassment might occur between students of the same high school at a weekend party. Initially, it may be considered that because this happened off campus, school policy and Title IX do not apply. However, if one student rapes another, and if students are aware of it and talk about it in school, this can create a hostile environment for the victim.

When a school receives such a report and fails to take action to end bullying, intimidation, or other negative behaviors against the victim, the school may be in violation of Title IX. In one case for which we were engaged, the school had knowledge that two male students sexually assaulted a female student off campus. Weeks passed and the school did not take any action to end the behavior of other students who harassed and intimidated this girl in the aftermath of the incident. It was my opinion, after reviewing the facts, that the student endured a hostile school environment created by the bullying of her classmates.

Schools must have an established procedure for handling complaints of sexual violence and harassment. When a complaint is received, the school must promptly investigate regardless of whether the complaint was reported to the police. Though a police investigation may very briefly delay the school’s investigation, schools are not allowed to wait for the conclusion of a police investigation and criminal proceedings and must conclude their own investigations in a timely manner. 2011 Office for Civil Rights Title IX guidance indicates that 60 days is an appropriate length of time to complete an investigation.

Courts have established that school districts are liable under Title IX if they fail to take effective action. Lack of an appropriate investigation, a Title IX coordinator’s lack of involvement, and lack of remedial action constitute deliberate indifference. Schools are required to use a “preponderance-of-the-evidence” standard to reach their conclusions, meaning discipline should result if it is more likely than not that discrimination, harassment, and/or violence occurred.

The federal government sets civil rights standards. If schools don’t take human rights, civil rights, and personal rights seriously and realize that they are the institutions charged with guarding these rights, then we will continue to be engaged by attorneys representing plaintiffs who claim they were not protected by their schools and by defendants who argue they were never told of any problems that make them accountable for the harassment of a student.

Student Sports Injury and School Liability

Sports Injury Liability

Nationwide, 7.6 million students participate in interscholastic athletics, according to U.S. News and World Report. Keeping them safe is critically important to avoid school liability and sports injury lawsuits. And when sports injury occurs, schools may be found responsible if they failed to take reasonable precautions and supervision of students in order to prevent sports injury. Parents send their children to school with the implicit expectation that schools will do whatever is necessary to keep them safe whether in the classroom or on the football field.

Although there is inherent risk in athletic competition, parents rightly expect that coaches will take reasonable and proactive measures to protect student athletes from harm. In the vast majority of cases, coaches do exercise prudent judgment and care. Sometimes, though, coaches are careless or deliberately indifferent, thereby jeopardizing the health and safety of the athletes under their care. Many states have very strict immunity laws protecting schools and coaches for acts of negligence. However, a careful analysis of the actions and inactions taken by coaches that caused injury to an athlete can be introduced by a plaintiff in order to overcome immunity claims by schools.  

 

Policies and Training of Coaching Staff are Key to Preventing Athletic Injury

As expert witnesses, we have encountered many cases in which students suffered physical or emotional sports injuries during their involvement in school athletics. Examples include instances of bullying, hazing, and sexual harassment on buses to and from interscholastic events while coaches were not paying attention. Other examples involve inappropriate behavior, physical assaults, fights, and initiation of younger team players while the coach was in his office with the door closed. Often, such behavior is excused as “boys being boys” or “kids being kids.”

A variety of circumstances on or off the field could potentially lead to personal injury of students. Unstructured practice time, unsafe premises, faulty athletic equipment, failure to follow established school policies, lack of policies, inappropriate and abusive behavior of coaches, and tolerance of such behavior are just a few examples.  Any of these circumstances may place students in situations where they can suffer sports injury, leaving schools liable for those injuries.

To avoid such situations, a school would be wise to begin with a two-step approach. The first is to develop policies that explicitly prohibit hazing and require that coaches, teachers, and anyone else in a supervisory capacity exercise proper care of students. Proper care involves appropriately supervising athletes, ensuring safe facilities, following state guidelines for interscholastic athletics, and directing students to appropriate medical care, if needed. The second step is to ensure that those responsible for carrying out those policies understand them and follow through on procedures for their implementation. It is prudent, for instance, for the athletic director to hold a preseason meeting with coaches before the start of fall, winter, and spring sports or any sports camps to advise coaches of their responsibilities. Parents and students should be invited to those meetings so that they also know the standard of care that coaches are expected to uphold and, if necessary, share their concerns with the athletic director.

 

School Liability for Unsafe School Premises and Defective Athletic Equipment

Because schools have a duty to provide safe facilities and grounds, they should periodically inspect locations where student activities are taking place. Failure to inspect school premises may be grounds for school liability. In one case in which our firm was engaged for expert witness services, a soccer player incurred serious injury during practice on the school athletic field. On several occasions, the coach and others reported to school officials that there were holes or deep depressions on the field, making the field uneven and potentially dangerous. The school did not fix the reported problem and, during practice, a student stepped into a deep depression, permanently injuring her ankle. In such situations, the school are negligent and often have actual knowledge of the dangerous conditions and deliberately ignores the notice, resulting in student sports injury.

In another case, during a softball game the center fielder’s face became stuck to the wooden outfield fence when she attempted to field a ball. As her face brushed up against the fence, a large sliver of wood entered her check, pinning her to the fence until someone came to dislodge her. Such personal injuries may be avoidable if playing facilities are regularly inspected. Upon inspection, unsafe conditions on athletic fields, gymnasiums, and related facilities must be promptly alleviated. Records of such inspections should be kept to ensure that inspections actually occur and to protect the district from a claim of an unsafe condition and school liability.

In certain situations, a school may not be responsible for the condition of its premises and the safety of others. In a 1984 case, (Begin v. Georgia Championship Wrestling, Inc., 172 Ga. App. 293, 322 S.E. 2d 737) a spectator at a wrestling exhibition was injured when her foot got stuck between two seams of plastic covering the gymnasium floor. The three-foot wide plastic strips had been placed around the wrestling ring by the school where the event was being held. The plaintiff sued the promoter of the event and not the school where it was held. The court clarified that, although the school was the sponsor of the event and employees placed the covering on the floor, the plaintiff was an invitee of Georgia Championship Wrestling, Inc., the promoter. The promoter was the occupier of the premises and, as such, is charged with the duty of keeping the premises safe for invitees even though the activity was held in the school gymnasium. An occupier of premises is under duty to inspect the premises to discover possible dangerous conditions  of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. (Prosser, Law of Torts (4th ed.) 393, 61)  

 

Coaches Should Exercise Reasonable Standard of Care to Prevent Student Sports Injury

To protect athletes, coaches should be proactive and consider everything they can do to prevent foreseeable athletic injuries. Participants in interscholastic athletics are students first and athletes second. As such, coaches are in the position of providing, at a minimum, “parental control” and must exercise judgment that a “reasonably prudent adult” would take to ensure the safety of students. That means for example, creating practice and game conditions that are safe, such as pitting athletes of equal (rather than unequal) ability against each other and modeling sportsmanship and ethical behavior.

Sometimes, coaches may be inclined to push athletes into a game situation for the sake of a win. Instead, coaches should have the attitude that the safety of student athletes is more important than wins. They should follow guidelines prescribed by their State Athletic Association regarding concussions or drink breaks, for instance. All reports of injuries should be taken seriously and medical attention provided, even if only precautionary. Many high schools today have athletic trainers available at practices, but some have trainers only at games or not at all.

The same attitude of injury prevention applies to physical education classes. Physical education teachers should routinely monitor and ensure the safety of physical education facilities and equipment. They should take all claims of injuries seriously and have students examined by the school nurse if they claim to be hurt. In our experience, many tragic injuries — and even death — have resulted from dismissing a student’s initial complaint as inconsequential.

Coaches should supervise athletes at all times — while they are in the locker room before and after practice, waiting to be picked up after practice, and any time they are on school grounds. Students are far less likely to do something inappropriate if they are properly supervised and if they know that certain behaviors are not tolerated. When coaches fail to supervise and a student is injured, the school may be held liable.

 

Schools Should Continually Monitor Athletics to Minimize Sports Injury

Finally, school administrators should ensure that coaches and physical education teachers conscientiously carry out their responsibilities. When everyone does their part, the school may avoid liability claims and costly litigation. But absence of claims is not the goal; ensuring the health and safety of student athletes is the goal. If safe conditions are in place, if coaches and physical education teachers supervise students appropriately, and if they respond to injuries quickly, then the likelihood of student athletes becoming injured will be greatly decreased — and students, parents, and the school will all benefit.

Title IX and Sexual Abuse in K – 12 Schools

Hostile School EnviromentAs difficult as it might be to accept and understand, abuse of children is occurring at an alarming rate in our nation’s schools, daycare centers, camps, and other institutions. Even with state laws that require child abuse reporting and institutional policies that address sexual abuse prevention, identification, and reporting, abuse is not going away. More civil lawsuits are filed with each passing year, and schools and other organizations are not always appropriately responding to this epidemic.

At a school or any institution responsible for protecting the safety of children, the existence of a policy isn’t enough. It is evident from my involvement in such cases that when schools have adequate policies that are living documents — supplemented by training and a culture where all reports and rumors are taken seriously —children tend to be better protected. Children are more frequently harmed in a climate where reports of sexual abuse are discouraged, rumors are not taken seriously, and staff training is lacking.

According to a 2014 federal report, U.S. schools are failing to protect students from sexual abuse, and instances of district cover-ups, lack of staff training, and incomplete teacher background checks are not uncommon. The U.S. Government Accountability Office determined that K–12 schools lack a systemic approach to preventing and reporting sexual abuse of students, despite longstanding evidence of widespread sexual abuse at the hands of educators. A previous federal report had estimated that 9.6 percent of students are sexually abused by school personnel.  A school district may be liable for damages under Title IX if it fails to take action to stop known sexual abuse and harassment.

 

Appropriate and Immediate Response Is Critical

Based on my experience as an expert witness in school and institution administration, virtually every school district in the United States and Canada is, at some point, likely to hear rumors or receive a complaint about the sexual abuse of a child by a staff member. The safety of children depends on several elements. One such element is an adequate response by the administration, including prompt and adequate investigation and taking appropriate action to protect children from harm.

The professional standard of care requires that those responsible for the safety of children respond appropriately when there is an observation, report, or rumor of inappropriate sexual behavior between an adult and a child in a school. For example, when a librarian sees a teacher kissing a student in the gym, the librarian’s observation provides clear notice that the teacher is breaching the professional code of conduct and school policy. Any reasonable staff member would also conclude that it is more likely than not that the teacher and student are engaged in an inappropriate sexual relationship. The librarian’s responsibility would be to report the observation immediately to her supervisor, usually the building principal, and to report the behavior to the state agency that investigates allegations of child abuse.

Likewise, any observation, report, or rumor that children in school may be engaged in inappropriate sexual behavior with each other warrants an immediate response to protect children from harm. In some circumstances, student-on-student sexual behavior will be considered typical depending on the age of the children. For example, two 5-year-olds may expose themselves to each other with no intention of sexual abuse. On the other hand, if a vulnerable child with a disability is sexually touched by a nondisabled child of the same age, it might be considered abuse because of the imbalance of power between the two children. This also might be true when a much older child is sexually active with a younger child. Age, in this situation, creates the imbalance of power.

 

Supreme Court cases defining Title IX liability Following Sexual Abuse

In Gebser v. Lago Vista Independent School District, (524 U.S. 274 (1998)), the U.S. Supreme Court established standards for school district liability under Title IX when a sexual relationship occurs between a teacher and a student. The court found that a school district will not be liable unless: (1) an appropriate school official has actual knowledge of discrimination; (2) the school official has authority to take corrective action to address the alleged discrimination: (3) the school official fails to adequately respond; and (4) the inadequate response amounts to deliberate indifference.

In Davis v. Monroe County Board of Education, (526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999)), the Supreme Court established that a school district may be liable for damages under Title IX if it fails to take action to stop known student-on-student harassment. In Davis, the alleged conduct of the perpetrator student was outrageous, and despite repeated complaints of sexual harassment over five months, the student was not disciplined. In fact, the victim was not even allowed to change classes to escape the harassment of her classmate. Moreover, the board of education had not instructed its personnel on how to respond to peer harassment and had not established a policy on the issue.

Actual notice. Since the Davis decision, there has been a pattern of cases granting summary judgment to school districts on the basis of insufficient evidence of actual notice. However, the issue of what constitutes sufficient notice to the school is not yet settled. For example, in Doe v. School Administration District N. 19 (66 F. Supp. 2d 57 (D. Me. 1999)), it was found that the school had sufficient notice when a substitute teacher met with the principal to report that a female teacher “might be” having a sexual relationship with at least one male student. The principal allegedly told the substitute that she could be “sued for slander for saying those things” and declined to investigate. The court believed this verbal notice was sufficient where the alleged sexual misconduct was severe and where the school community was small (the high school’s faculty numbered 15). From the substitute teacher’s report, the administrator had a duty to conduct a sufficient investigation and, likely, to file a report with the appropriate child protective service in the state as well.

Insufficient notice was found in Turner v. McQuarter (79 F. Supp. 2d 911 (N.D. Ill. 1999)) where a female basketball player claimed to have been coerced into a sexual relationship with a female coach. Because the student and coach had the same home address, the plaintiff alleged that the university’s athletic director knew of the relationship. A district court concluded that it was difficult to imagine under what circumstances the identical addresses would have come to the attention of school officials. In this case, the court determined that unless there is sufficient notice or a report that a sexual relationship was taking place and that the coach and student resided at the same address, it would have been unlikely that the school would have found out on its own.

Deliberate indifference. The adequacy of a school or institution’s response once the appropriate officials have actual notice also has been examined. For example, in Kinman v. Omaha Public School District (171 F.3d 607 (8th Cir. 1999)), the Eighth Circuit Court of Appeals found that prompt investigation, corrective action, and ultimate termination was a sufficient response by a school district in response to allegations of a sexual relationship between a teacher and a student. After the student graduated, the relationship resumed, and the teacher was terminated for violating the district’s policy that prohibited teachers from engaging in sexual relationships with former students within two years of graduation. The court dismissed the Title IX claim.

How various courts respond to the issue of deliberate indifference is illustrated by Flores v. Saulpaugh (115 F. Supp. 2d 319 (N.D. N.Y. 2000)). A student’s petition survived the school district’s motion for summary judgment because a fact issue existed regarding the administrator’s response to the student’s complaints. In this case, the student and her parent complained to the principal of a teacher’s suggestive behavior toward the student. The principal promised to investigate the matter but did not do so, nor did he notify the Title IX coordinator of the complaint. Harassment, according to the student, continued for about a year after the complaint. In this matter, the court found a fact issue regarding the alleged indifference of the principal’s response. The court found that the principal had actual notice, effective at the time the student and her parent made their complaint. The principal also had corrective authority over the teacher. The court ruled that failure to investigate and to notify the Title IX coordinator constituted deliberate indifference, and the continued inappropriate behavior of the teacher may have caused harm to the student.

 

Rumors and Suspicions of Child Sexual Abuse are Enough to Warrant Action

How should a school respond to rumors of an inappropriate relationship between a child in its care and a staff member? Is a rumor sufficient to be considered notice? Schools can be sidetracked by the “logistics” of the rumor mill, short-circuiting a thorough investigation of what may, in fact, be an actual abusive relationship. For example, when a school principal knows that students are talking about a sexual relationship between a teacher and a student and are saying that the teacher and student have been texting and sending pictures to one another, the school must take these rumors seriously. Taking them seriously — that is, focusing on the alleged behavior as the genesis of the rumors rather than focusing on the way students are communicating (the logistics) — is key. I have seen too many situations where rumors were considered not credible — brushed off as children bullying each other — while an inappropriate relationship went on. It is important that reports of this nature are made to the state child protective agency so that specially trained and experienced individuals can conduct a thorough investigation. School officials are not trained to make a determination as to whether an allegation of sexual misconduct is substantiated or to determine that rumors can be dismissed.

In my practice, I have reviewed and analyzed the issues in numerous civil lawsuits as to whether a school or other agency met the professional standard of care in responding to rumors of sexual abuse. One of these cases involved the Texas City Independent School District in 2004. The district was accused of a breach in the professional standard of care, resulting in the sexual abuse of a preschool child by a classroom aide. This female student, because of her gender, was discriminated against when she was sexually abused. This was cause for a federal lawsuit under Title IX.

As the expert witness, I reviewed the case material, including sworn depositions, policies of the school district, records of the student, and information about the classroom teacher and aide. I determined that the teacher was not trained in the prevention, detection, and reporting of child abuse, including sexual abuse; the aide was hired without a proper background check and was not trained; the teacher allowed the male aide to supervise “bathroom time” with this girl, who had a disability, and the teacher wasn’t there to supervise. Another instructional aide in the class admitted having observed physical evidence that caused her to believe that the child was being sexually abused, but she failed to notify anyone about it and the abuse continued.

Although there was a policy in the school that addressed sexual abuse and reporting requirements, it was not implemented. Training was insufficient or nonexistent. The aide did not know how to report her concern. She did not know that she had a duty to report her observations to state child protective services and to the school administrator. The abuse continued until another professional also became concerned, at which time the matter was reported, investigated, and the aide was arrested. It was my opinion that this breach of the professional standard of care was a proximate cause of the girl’s abuse. Adequate training and supervision, in my opinion, would have prevented abuse of this child.

 

Summary
Sexual abuse of students is tragic, and its rate of occurrence is unacceptable. Schools and other institutions have a responsibility to protect the children in its care. Beyond policies, a culture of training, supervision, and adequate follow-through on reports of abuse against students is a proactive strategy for reducing the potential for harm to children.

Assessment of Liability: Child Abuse and Injury in Residential Care

Residential School LiabilityIn my profession as an education administration and student supervision expert, I have observed that residential schools and boarding schools present a higher duty than day schools to supervise children and a greater opportunity for the school to be found liable for child abuse and injury. When children are living and learning in a program 24/7, staff must demonstrate not only a professional standard of care, but also a reasonable and prudent parent standard of care. Although related, these standards are distinct and must be appropriately and reasonably applied in a setting where staff serves as surrogate parents and others serve as teachers, counselors, and psychologists. When a child is sexually assaulted, administered unnecessary corporal punishment, or is injured or dies in a residential school, both of these standards need to be addressed.

Residential programs, particularly in large institutional settings, carry inherent risks to children, including the number of staff in positions of authority who interact with children, development of institutional norms that may be different from those in the broader community, and a tendency toward closed communication systems where information is kept within the institution. In the field of education administration and supervision, certain standards guide the care and protection of children in order to prevent child abuse and provide adequate care. These standards are greater than those of a reasonable parent or the general public to ensure that risks involved in the care and education of children are appropriately assessed and are inclusive of ways to address those risks. Within this framework, it is essential to develop appropriate policies, regulations, and procedures that ensure that standards of behavior follow applicable state and federal laws and to carry them out. At a minimum, policies, regulations, and procedures should ensure that:

  • Students know what constitutes unacceptable behavior and how to recognize it
  • Policies and procedures for reporting mistreatment and child abuse are established and made known to students, parents, and staff, and that parents can feel confident that complaints will be addressed appropriately
  • Students and parents participate in the development and review of a plan of care
  • Staff selection, supervision, and training ensures that staff has the knowledge and skills necessary to care for students and meet their needs
  • Accountability processes are in place to monitor whether students’ care needs are being met and that policies and procedures are implemented
  • Student care practices are consistent with established standards and policies
  • Students regularly participate in community activities and that community members are involved in school activities

Reasonable and prudent parent standard

California’s Welfare and Institutions Code (sections 362.04 and 362.05) defines the “reasonable and prudent parent standard” as careful and sensible parental decisions that maintain the child’s health, safety, and best interests. The goal of the reasonable and prudent parent standard is to:

  • Provide the youth with a “normal” life experience in out-of-home care
  • Empower the out-of-home caregiver to encourage youth to engage in extracurricular activities that promote child well-being
  • Allow for reasonable parenting decisions to be made by the out-of-home caregiver without waiting to obtain approval from a social worker or institution
  • Remove barriers to recruitment and retention of high-quality foster caregivers
  • Reduce the need for social workers to either give permission or obtain Juvenile Court approval for reasonable caregiving activities
  • Respect the rights of youth in out-of-home care

The U.S. Department of Health and Human Services’ Administration on Children, Youth, and Families uses a similar definition of the standard, while adding recognition of the need to “encourage the child’s emotional and developmental growth.”

While there are many definitions for what would be considered a reasonable and prudent parent standard, the general concept is that parents are often — if not daily — faced with decisions about their children’s care that involve judgment. Parents who are both reasonable and prudent will make decisions carefully, weighing the benefits and potential risks to come to a sensible decision that is in the best interest of the child.

Professionals who care for children in their custody have a duty to meet the same standard, but also have a higher duty to meet the standards of a reasonable professional. The reasonable professional standard of care includes ethical or legal responsibility to exercise the level of care, diligence, and skill prescribed in the code of practice of his or her profession.

The professional standard of care with regard to the supervision of children in both day schools and residential and boarding schools is that staff act appropriately and reasonably under the circumstance to protect children from harm, that the school develop and implement policies to implement and oversee supervision, and that the staff be appropriately hired, supervised, and trained.

Standard of care for residential and boarding schools

Both the reasonable and prudent parent standard and the professional standard of care are applicable in residential and boarding school settings.

When an institution is established by a government, or when a boarding school program is established by a private board or an individual, the government or board should assure that, at the very minimum, the reasonable and prudent parent standard is met and that adequate programs, services, and student supervision are in place to maintain and protect their health, safety, and well-being. The professional standard includes every aspect of the reasonable and prudent parent standard in addition to ensuring that an adequate infrastructure is established to operate a residential or boarding school. Infrastructure means developing and implementing policies, procedures, and regulations that address such activities as: hiring, supervision, retention and training of staff; staff discipline; development of programs and services for students according to their needs; student supervision and discipline; administration; human resource planning; development and implementation of training and investigation of complaints; and follow-up on issues that can cause foreseeable harm to students. This infrastructure enables a residential or boarding school to meet both the reasonable and prudent parent standard and the professional standard of care.

When applying the reasonable and prudent parent standard, schools and other institutions that care for and supervise children have a greater responsibility than parents. For example, a parent of a child with multiple disabilities living at home requires certain necessities, such as adequate shelter, nutrition, health care, a safe environment, a caregiver while parents are working, and other services that provide for the child’s adequate supervision and protection. Before these necessities can be provided, certain family systems that allow for such care to be provided must be in place. These systems include income for providing a home, food and clothing, and adult collaboration. Here, in addition to the systems necessary to meet the reasonable and prudent parent standard, the professional standard of care is added. This standard is defined by the level of care, diligence, and skill prescribed in the code of practice for the profession; by the person’s education, training, and professional experience; and by how other professionals in the same discipline would behave in the same or similar circumstances.

Residential and boarding school personnel act in loco parentis to educate and care for children who are not living at home. As such, these institutions should meet the reasonable and prudent parent standard and, because professionals are responsible for students in the residences, the professional standard of care applies as well. Based on my professional experience, identifying children with specific disabilities who are not able to receive adequate services at home with their parents or in their local school, and placing them in a location where professionals with specialized education and training are more able to provide necessary care and education, is the standard of care.

Expert role in assessing standards of care

As an education administration and student supervision expert witness, I am called to assess and analyze whether applicable standards of care were met in lawsuits involving injury, death, child abuse or sexual abuse of students attending residential school programs. To make that analysis, I conduct an extensive review of documents, including policies and procedures for hiring and supervision of staff and supervision of children in residential and boarding schools.

In the case of child abuse, sexual abuse, death, or serious injury, it must be determined whether the agency, through its administration and/or other employees, acted within the reasonable and prudent standard of care and within the professional standard of care. Policies and procedures must be reflective of the nature of children in general and, specifically, the nature of children attending the residential or boarding school. For example, if the facility educates and provides psychological assistance to children who are chronic sex offenders, it makes sense that the school develop and implement policies that address staff training in the prevention, identification, and reporting of sexual abuse. Such a facility would also be expected to have and enforce policies that provide a high level of line-of-sight and close supervision of children during the day and, especially, during such less-supervised times as evening and bedtime. If a child is sexually abused in a residential center that does not develop and implement appropriate policies that consider the nature of children in its care, that facility might be found negligent.

Many times, I find during a case review that the residential or boarding school failed to develop policies and supervise or appropriately train its staff — creating a situation where students with a propensity for disruptive behavior or sexual acting out are able to do so. When a student in a residential or boarding school is known to be overly interested in sexual matters or has inappropriately acted on those interests, this requires staff to consider a higher level of supervision for that student than typically provided to others in the facility. This is because there is a certain level of foreseeability that the student’s sexual acting out may place other students in danger of harm. When an agency has notice of a child’s propensities but fails to adequately inform and train staff and provide appropriate supervision, this is a breach of the professional standard of care that may place the health, safety, and well-being of children at risk. Failure to develop and implement appropriate policies and supervisory systems may be a proximate cause of harm to a child, resulting in costly litigation.

Real case examples

In many cases I have examined, schools have made claims to suggest that they are sensitive to the needs of vulnerable youth they serve, and that these children’s needs will be addressed in a way that protects their health, safety, and well-being. A boarding school in Vermont that advertised that, for more than 30 years, it had worked with boys who face dyslexia and related language-based learning challenges. Approximately 50 students from grades 6 through 12 who attend this school during the day live on campus. A residential school in New York had 12 cottages for housing “at-risk” boys between the ages of 6 and 20. Each cottage housed between 9 and 16 students. This school stated that it is staffed 24/7 with professionals experienced in helping children deal with anger, feelings of loss, and educational failure. According to the information packets of both schools, an important part of life is that the schools offer a structure that helps residents feel safe. Another boarding school for teens who are in trouble with the law or having substance abuse issues offered year-round enrollment for girls and boys ages 13-17. A military, special-needs boarding school in Canada that enrolled 125 students offered specialized programs for children in grades 6 to 12. And a sport-oriented boarding school in Canada stated that it’s important for their student-athletes to have parent-like advisors while living away from home.

The accommodations promoted by each of these schools suggest that they have the infrastructure to meet both the reasonable and prudent parent standard and the professional standard of care. In cases involving some of these facilities, however, it was my professional opinion that breaches in these standards contributed to student injury and/or constituted child abuse.

In a residential program for troubled boys, a student crawled out a window to a flat roof and attempted to jump across a gap to another roof. He fell 20 feet, resulting in serious injury. In a boarding school for girls, a staff member caught two girls kissing but didn’t investigate, interview them, or recommend counseling. A few weeks later, the aggressor raped her target. In another school, an older boy left his room, crossed the hallway, and entered the room of another student. He proceeded to sexually abuse the student while staff was to be posted in the hall to check rooms every 15 minutes. My review of this case revealed that staff was not present as they were supposed to be.
When a child is abused, injured, sexually abused, or dies under the supervision of staff at a residential or boarding school, the review is focused on two standards: the reasonable and prudent parent standard — because children in these settings are in a substitute home with substitute “parents” — and the professional standard of care required of educated and trained professionals in these settings. Although day schools must meet the professional standard of care, the reasonable and prudent parent standard is not typically applied in these settings. Children in day schools must be supervised according to the professional standard of care under the circumstance, whereas children who live at a residential or boarding school must also be supervised to the reasonable and prudent parent standard.

Public and Private School Employment Discrimination Lawsuits

School Employment Discrimination

Employment decisions in public and private schools should be based on qualifications, performance, merit, and seniority, rather than race, national origin, gender, religion, age, or disability.

Employment decisions in public and private schools should be based on qualifications, performance, merit, and seniority, rather than race, national origin, gender, religion, age, or disability. Teachers and other school personnel can sue for employment discrimination if they are wrongfully dismissed or demoted, if they were prevented from initially obtaining a job, or not appropriately accommodated for a disability or medical condition. Most employment discrimination violates either state or federal law, and legal protections are found in the 14th Amendment to the Constitution and Title VII of the Civil Rights Act of 1964. Additionally, two primary federal statutes prohibit disability discrimination in employment: the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) of 1990.

Statutes are extensive, complex, vary considerably, and can be confusing. As such, there is no simple solution to every case involving employment discrimination. But a careful review of the progression of events associated with a complaint often will bring litigation to a reasonable conclusion. In such cases as a teacher being fired or an applicant being excluded from a job interview, attorneys representing plaintiffs and schools must present a clear timeline of events leading up to a decision. Often, this task is accomplished in retrospect after a lawsuit has been filed, and any lack of documentation can make it difficult for plaintiff to argue employment discrimination or for a school to defend its decisions.

Reconstructing the file — an employee’s discrete, day-to-day personnel issues or the employment interview and process, for instance — is necessary to be able to determine whether the school, through its administration, acted appropriately, reasonably, and within the professional standard of care. Knowledge of employment law and the nuances that often exist in the school context is helpful to attorneys in representing the best interests of their clients in employment discrimination claims. Above all, however, a timeline of events and analysis of each significant entry are most important in determining whether a school met the law.

Anatomy of an Employment Discrimination Lawsuit

The importance of a timeline is illustrated in a recent case in South Carolina. Spartanburg School District Seven reportedly will pay $62,000 to settle a former teacher’s employment discrimination suit. Frances Grady claimed she faced discrimination over her disability, race, and age. Full details of the case were not disclosed publicly; however, court documents reveal the basics.

Grady, who was employed by the district for more than 30 years, was diagnosed with a condition that weakened her immune system. Grady said the school made accommodations for her, allowing her to teach smaller groups of students as an “interventionist.” In my opinion, such an accommodation would be appropriate and reasonable, and would have met the needs of the employee and the school at that time. Of course, a district’s needs may change over time, possibly necessitating a restructuring of staff. In other words, Grady’s accommodation might be viable one year but not the next. The following year, the school reassigned her to teach first grade.

This brings up a question: When did the school know of Grady’s disability? Did it make an accommodation for her by assigning her to teach as an interventionist — or did Grady disclose her disability after the school reassigned her to teach first grade?

In her employment discrimination lawsuit, Grady claimed to have told school officials that her condition prevented her from teaching first grade. Further, she said, the school told her it would no longer use interventionists, forcing her to go on leave without pay because, in her belief, the school would no longer accommodate her disability. Subsequently, Grady was not offered a teaching contract.

Later, Grady, who is white and in her 50s, learned that a younger, less-experienced African-American male was hired as an interventionist, thus prompting her claims of race and age employment discrimination.

If it could have been demonstrated that the school knew of Grady’s disability, accommodated her by assigning her to the interventionist position, then reassigned her to first grade — knowing that her disability would not allow her to be effective in that role — and finally replaced her with someone else, the school would have had difficulty justifying its position.

In its own defense, the school denied that Grady had been offered the interventionist position because of her health. The school also claimed that it was only after her reassignment to first grade that Grady submitted medical documentation about her diagnosis and requested an accommodation. The school acknowledged that Grady was not offered a teaching contract after granting her request for medical leave, but denied its action stemmed from any discriminatory or retaliatory reason.

If the school can show that it declined to offer her a contract because of a change in the school’s staffing structure — and not because of her disability — then it is likely the school would have been able to justify its position.

Title VII School Employment Discrimination Protections

Title VII prohibits entities with 15 or more employees from discriminating on the basis of race, color, religion, gender, or national origin. The statute covers hiring, promotion, and compensation practices, as well as fringe benefits and other terms and conditions of employment. Discrimination in hiring can be established by showing that the applicant is a member of a protected class, applied for and was qualified for the job, and was denied the position while the employer continued to seek applicants with the plaintiff’s qualifications.

When a public or private school posts a position for a teacher, lists the qualifications, interviews several qualified candidates but denies the position to a highly qualified individual who discussed her religious affiliation with interviewers, this individual might believe she was subjected to religious discrimination. In this example, the candidate would need to show, at a minimum, that she met the posted requirements for the positions, that other candidates were not as experienced and thus not as qualified, that the school did not offer her the position, and that it continued to interview.

In its own defense, the school would need to state a reason for its decision that does not violate Title VII. A reason for not hiring may be objective, such as the requirement that the candidate possess a graduate degree; subjective, such as an assessment of interpersonal skills; or a combination of both in determining which applicant is best qualified. If the school is unable to show a nondiscriminatory reason for its action, a decision for the plaintiff most likely would be granted. Additionally, the school should present a timeline of events from the time the position was posted (including a copy of the posting), through the interview, reference check, and finally a decision to hire another person. If the timeline reveals gaps in documentation and the school is not able to account for actions that should have been taken, this will strengthen a decision for the plaintiff.

Given the ease of presenting a nondiscriminatory reason, schools should be able to provide a satisfactory response in nearly every instance. For example, if the school hiring the teacher can show that discussions with past employers revealed that a candidate was not liked by fellow staff and often argued with them in an unprofessional way, these are valid considerations in the hiring process. How much weight this should have, however, is often argued in litigation. The school should develop a process for documenting interviews with former employers, particularly with respect to specific statements provided by an interviewee and the impressions of the person making the call.

If the school argues that nobody who interviewed the candidate knew of her religious affiliation and that it was not included on the application, then it has a good chance of showing that it acted appropriately, reasonably, and within the professional standard of care, and that it met the requirements of Title VII. On the other hand, if one of the interviewers pointedly asked the candidate about religious holidays she would be likely to take during the school year, this may be interpreted as obtaining information about the person’s religion that later factored into a hiring decision. In a situation where events during the interview might be the subject of disagreement, the jury will address the credibility of the witness.

After the school provides a rebuttal, the plaintiff then has the additional burden of proving that the school’s stated reason for not hiring is false and is but a pretext for prohibited intentional discrimination. In most instances, it is difficult to show a pretextual basis for discrimination. The plaintiff is likely to be successful only when it is clearly articulated, verbally or in writing, that the candidate was not hired because of a protected factor. This information may be found in a thorough document review during discovery. Notes made by people who interviewed the candidate might reveal bias through comments such as “too many religious holidays.”

Protection against discriminatory employment practices is not absolute. Facially discriminatory practices on the basis of religion, gender, or national origin (but not on race or color) may be permitted if they relate directly to a bona fide occupational qualification, such as a requirement that the head of a Catholic school be Catholic.

Disability Employment Discrimination

Another area that often comes forward in employment lawsuits is disability, either that of an individual applying for a position or that of a current employee. Federal disability law protects individuals who can show that they are “otherwise qualified” for a job, although reasonable accommodations may be needed at times. If a person meets the requirements for a position but uses a wheelchair, for instance, the school must consider how it can make an accommodation so that the individual can function successfully in the job.

When a person with an identified disability applies for a position at a school, the school must determine whether he or she is otherwise qualified. To be an otherwise qualified individual with a disability, the applicant must be able to perform the essential functions of the job in spite of the disability, although reasonable accommodation at times may be necessary. Consider, as an example, a school that posts a position for a high school social studies teacher. The announcement attracts the attention of a junior high school social studies teacher who has taught in the district for seven years. When it first hired her, the district assigned the teacher to a classroom on the second floor of a three-story building. Because of her disability, the teacher used a wheelchair and used an elevator to get to her classroom. The high school is in an older building with three floors but no elevator. In this situation, the school must first consider the applicant’s qualifications for the position, regardless if she uses a wheelchair. If she is otherwise qualified, then the school must consider reasonable accommodations necessary for her to function in the position.

Would it be reasonable, in this case, for the school to construct an elevator to accommodate the teacher if she were to be assigned to a classroom on the third floor? Alternatively, would it be a reasonable accommodation to move the social studies class to the first floor so she would be able to get to the classroom? Assuming she was otherwise qualified but not offered the position, the teacher would have a valid claim that she was discriminated against because of her disability and could present the position that simply moving the class to the first floor would have been a reasonable accommodation.

In defense against such a suit, the school should produce documentation that during the interview process and afterward, it considered what accommodations would be necessary for the person to be successful in the position. Suitable documentation would include a checklist of potential accommodations and/or modifications, such as moving a class to the first floor for a teacher who uses a wheelchair or constructing a handicapped-accessible bathroom on the first floor of an older building.

Conclusion

Basing employment decisions strictly on qualifications, performance, merit, and seniority, rather than race, national origin, gender, religion, age, or disability is the law. However, prospective employees or current teachers or staff can interpret employment decisions any number of ways, raising questions of equity. Sorting out what is in the best interest of the school while assuring that an individual’s rights are maintained can be confusing. Sometimes, decisions need to be made for the school, but not to the exclusion of the employment rights of the individual. It is not easy to balance the institution’s needs with its provision of an adequate education for students and the employment rights of its teachers and staff.

For both plaintiff and defendant attorneys, clearly documented timelines are essential. These are necessary for reviewing and analyzing whether a school acted within the law when making employment decisions. Documentation of candidate interviews, reference checks, and of issues leading to a decision to bypass a candidate for a job is essential for determining whether a school acted within the professional standard of care.

The important thing to remember is that treating all potential or current employees the same may not accommodate individual needs and may inadvertently result in discrimination resulting in employment discrimination lawsuits. Alternatively, treating each person differently may provide advantages to some over others. There is no simple solution for every case.

School Liability and High School Hazing

High School Hazing

Schools can be liable for high school hazing

School coaches have a duty to protect athletes from harm, including emotional or physical harm that may result from locker room hazing. High school hazing in athletics has many beginnings — the most prominent being an attitude of superiority among senior athletes and the belief that a weaker or younger athlete must be subjected to harassment to “make the grade” or to be “good enough” to be on the team. This mentality, if left unchecked and if students are allowed to participate in hazing behaviors, eventually can result in even more serious misconduct, such as sexual harassment and serious personal injury.

We often see the repercussions of hazing when it emerges from the locker room and finds its way into the courtroom. And it’s likely that courts will begin to see more hazing-related claims stemming from an alleged lack of appropriate student supervision.

Statutes and common law decisions reinforce the duty of school officials to exercise care to protect children from harm — a legally enforceable obligation for schools. Care is an element assessed when considering a complaint or defense involving negligence. Did the school, through its administration and/or other employees, act appropriately, reasonably, with care and within the professional standard under the circumstance? This duty refers to a responsibility to protect others from unreasonable risk of harm arising from inappropriate student interactions, including hazing. Exercising this duty begins with schools developing and implementing adequate policies against high school hazing, training coaches and students about those policies, promptly investigating complaints, appropriately supervising staff and students, and following through with consequences for violators. By doing this schools send a clear message to students and staff that hazing and other inappropriate behaviors are neither tolerated nor acceptable in school athletics.

 

High School Hazing is Harassment and Schools Can Be Liable

Recently in Sayreville, N.J., the superintendent ended the football season early in response to serious reports of locker room hazing at War Memorial High School that led to the arrests of seven student athletes and allegations of possible student-on-student sexual assault. In this case, a couple of legal repercussions will follow in response to the season’s cancellation. If a victim files a civil lawsuit against the school, the legal questions will likely examine whether hazing constitutes bullying (New Jersey’s Acting Commissioner of Education says it does) and whether the school appropriately trained its coaches to be aware of hazing and to take appropriate action to end it. Plaintiff’s attorneys may also argue negligent hiring, supervision and retention of the coaching staff, negligent supervision of students, and negligent infliction of emotional harm, among other claims. Defendant’s attorneys will likely argue that the school did everything properly in hiring and supervising coaches, that it developed and implemented appropriate policies, and that students were appropriately supervised during the time of the alleged incident. The answers will boil down to the school’s duty and whether it acted reasonably when training and supervising coaches and students, implementing its own policies, and complying with state law to protect student athletes and prevent a hostile environment from festering inside the locker room.

Schools’ perceived attitude toward the acceptance of hazing in athletics can result in costly litigation when student athletes suffer injuries inflicted by fellow students or even coaches. For example, in an Ohio case, a high school football player’s parents are suing over their teenager’s brain injuries, blaming his coaches for allegedly sanctioning a dangerous hazing ritual. According to the lawsuit, other students hit the victim as hard as they could, causing him to collapse later in the locker room — and no ambulance was called. The suit claims that the ritual required their son to take deliberate injury, in violation of his rights, and that the coaches acted under the government’s authority in ordering the intentional striking of the student. The suit also alleges that the school and coaches acted recklessly through complete failure to exercise any care to protect the student’s safety and were indifferent to the fact that his injury was a likely outcome of the violence directed toward him. Here, the plaintiff’s attorney will need to show that the state and school district had a policy defining the standard and that the school breached that standard, resulting in harm to the student. For its part, the school will need to demonstrate that policies and procedures were appropriate and reasonable, staff was hired and trained according to policy, if there was knowledge of the hazing, they took quick and appropriate action to end it.

 

Hazing Leads to Hostile School Environment

When the culture of  high school hazing becomes so accepted that even the athletes themselves may not recognize the need to report an injury, hazing, or harassing behaviors, the abuse is allowed to continue — undetected and untreated. This sad reality causes difficulty for the plaintiff’s attorney who wants to present a harassment claim alleging the school knew about inappropriate behaviors and acted deliberately indifferent to that behavior, resulting in harm to a student.

In a survey of American middle and high school students published in School Psychology International, 66 percent of bullying victims believed that school personnel responded poorly when they saw children being bullied. Kids who are bullied often don’t tell anyone, either because they think they won’t be believed or they fear retaliation. It’s not just targets of bullying and hazing who keep mum. Their peers do, too. Even though most students and athletes believe that hazing is wrong, witnesses rarely tell teachers and coaches, and they intervene only infrequently on the behalf of the child who is the target of the abuse. In fact, multiple studies suggest that only between 10 and 20 percent of noninvolved students provide any real help when another student is victimized. Student athletes worry that intervening will raise a bully’s wrath and make them the next target. They may also feel powerless to do anything about it; after all, they are peers — they are not the teacher or coach in charge of fellow students. So they tend to stand aside, watch the negative and often abusive behavior, feel confused about what to do, and internalize conflicting feelings and emotions. This raises the duty of school employees to educate and train students about hazing and how to report what they see, take time to observe and assess the environment, and take action whenever a situation might cause harm to a student — be it unsafe conditions on the playground or interactions among students in the locker room.

To promote a positive environment in locker rooms and to prevent high school hazing, it is important for schools to develop and implement an appropriate student code of conduct that includes athletes in the locker room and on the field. Hazing, specifically, must be prohibited, with strong consequences for violation. Teachers and coaches must be trained to take immediate and effective action to end hazing if it is reported or observed. Being able to demonstrate that the student code of conduct clearly addresses hazing and that teachers and coaches have been trained to take swift action will support a school in a lawsuit. School staff that consistently take immediate action and reinforce a positive school culture is the best deterrent to student harm — and the best defense in a lawsuit. Policies and training alone are not enough, however; if the school fails to show that it met its own standards, it will have difficulty defending itself against negligence and plaintiff’s attorney may be able to demonstrate that failure to act reinforced a culture of hazing that contributed to student harm.

As of the writing of this article the Middlesex County, N.J., prosecutor is conducting an investigation of the hazing and sexual abuse charges against the seven Sayreville football players; the school is waiting for the result before conducting its own investigation. There have been indications that parents will sue the school because it cancelled the football season, but these have yet to come forward. One player says he lost a college scholarship over the turn of events. Once the criminal part of the alleged harassment has been resolved, civil suits brought on by the victims will likely begin. Plaintiff and defendant attorneys should be prepared to address such issues as the coach’s duty to protect students, whether the school reasonably and appropriately trained its coaches to detect and act against hazing, whether the coach knew or should have known of hazing behavior, and what he or she did to end it — and whether any breach caused injury to the athlete.

 

Hazing and Title IX

Sayreville and similar high-profile incidents of high school hazing will likely bring many legal issues to the surface, including Title IX of the Education Amendments of 1972. When there are allegations or notice that locker room hazing involved sexual harassment, Title IX may be a viable avenue for a complaint and will complicate a review. Title IX imposes a duty on school officials to prevent sexual harassment in schools. According to U.S. Department of Education guidelines, sexual harassment occurs when a student experiences gender-based conduct by another student that is sufficiently severe, persistent, or pervasive that it limits a student’s ability to participate in or benefit from an educational program or activity. Sexual harassment also occurs when such activity creates a hostile or abusive educational environment. If a Title IX sexual harassment claim is attached to a claim of hazing, plaintiff and defendant attorneys will need to examine the type, frequency, and duration of the conduct; the number of individuals involved; and whether the victim suffered psychological distress — in addition to whether the school met its duty to exercise care and whether it followed its own policies and professional standards under the circumstances.