December 15, 2017

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

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    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.

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      Private School Sexual Abuse and Harassment: Professional Standard of Care

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        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.

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

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            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.

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              Title IX: What Constitutes Actual Notice of Sexual Harassment or Sexual Violence in a School Setting?

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                Title IXUnder Title IX, for a school to be held liable for denying an educational opportunity to a student who was sexually harassed or abused, the court must be convinced that the school had actual notice of prohibited behavior and that it acted deliberately indifferent to it. Often, it is a challenge to define what “actual notice” is and whether the school had such notice. If the school has no information on which to act to end harassment or abuse, it cannot be determined to be indifferent. In some of the cases we have worked on, however, there has been some level of notice that, if investigated, would have confirmed that harassment or abuse was taking place. Such notice could be a teacher hearing a rumor about a sexual relationship between another teacher and a student, a staff member watching a student speak in a sexually inappropriate way to another student, or the school receiving notice that that an off-campus sexual violence event is creating retaliation at school. Examples such as these may constitute actual notice, depending on the circumstances.

                If actual notice is established, the next question to answer is whether the school acted with deliberate indifference to the notice or complaint. The school’s response is key when an education expert witness renders an opinion. This is not the same standard as reasonableness or negligence, as defined in the legal context. This is a professional standard-of-care issue that can be addressed by a qualified expert witness in education administration and supervision. A qualified expert can render an opinion as to whether a school’s response, or lack of response, to a report of sexual harassment was reasonable in light of known circumstances.

                 

                What Constitutes Actual Notice Under Title IX?

                The question of what constitutes actual notice has not been settled, and federal courts have used various methods to define it. The Court of Appeals for the Third Circuit approved a jury instruction that states “an educational institution has actual knowledge/notice if it knows the underlying facts, indicating sufficiently substantial danger to students and was therefore aware of the danger.” In this case, the threshold for actual knowledge may be knowing some facts about a relationship that can be interpreted as substantially dangerous.

                In James Hill v. Madison County School Board, the Court of Appeals for the Eleventh Circuit held that the U.S. District Court for the Northern District of Alabama applied an inappropriately heightened actual notice requirement that, if adopted, would absolve schools of the responsibility to respond to known sexual harassment in all but the narrowest of circumstances. The district court defined actual notice as knowledge of harassment that is already so severe it denies the victim an educational opportunity. However, the Court of Appeals noted that schools are required to respond to known harassment before it reaches that level of severity. If the school responds to this knowledge with deliberate indifference, and this deliberate indifference results in harassment severe enough to deprive the victim of an educational opportunity, then actual knowledge has been demonstrated. Based on this, schools must respond before an episode escalates and deprives the student of an educational opportunity. This may include the idea that schools should respond to rumors of inappropriate relationships between teachers and students rather than treating them as students trying to cause trouble. As mandated reporters in most states, schools are required to report any suspicions of an inappropriate teacher–student sexual relationship and allow authorities to conduct an investigation. There are no penalties for making reports that are later unsubstantiated.

                 

                School Investigation Requirements Under Title IX

                In N.R. Doe v. St. Francis School District, the Seventh Circuit Court of Appeals held that actual notice must be actual knowledge of misconduct, not just actual knowledge of the risk of misconduct. Here, a teacher exchanged suggestive text messages and kisses with one of her students. The boy’s mother discovered some of the texts and transferred her son to a private school. The teacher was fired, prosecuted, and pled guilty to fourth-degree sexual assault. The child later sued the school district under Title IX. In the complaint, the student alleged that reports of both an inappropriate relationship between the teacher and the teacher’s reciprocation of the student’s crush were sufficient to put the school district on notice of misconduct. The court, however, found that these facts did not satisfy the requirement of actual knowledge. Rather, it found, the school district only had knowledge that would cause a reasonable person to investigate further. Notice, it ruled, must be actual knowledge of misconduct — not just knowledge of a risk of misconduct.

                In a typical school setting, information such as this should be concerning enough to cause a reasonable school administrator to investigate further. If the school administration had acted to investigate, it is possible that it would have obtained knowledge of a sexual assault. To protect students from harm and the school from costly litigation, it is always prudent to investigate information or rumors about potential misconduct.

                These examples demonstrate how the courts are shaping the concept of actual notice of sexual harassment or abuse in schools. Each case must be reviewed in its own context and through a reasonable school administrator standard. Should the school have investigated when the principal was told that a teacher and student were holding hands in the hallway? How did the administration implement the school’s policies when a parent complained that her son’s teacher seemed to be spending too much time with him after school? Did the school adequately investigate a report from a 14-year-old that an older student keeps following her into the girls’ bathroom? Any of these scenarios can be determined to be sexual harassment and can reasonably lead to sexual abuse. As an expert witness in education administration and supervision, my advice to schools is to err on the side of caution, assume that it is possible that there may be a Title IX violation, and conduct a thorough investigation according to the policies and procedures of the school district and the requirements of Title IX.

                In Davis v. Monroe County Board of Education, the Eleventh Circuit Court of Appeals did not require that a school have a policy outlining the way actual notice is received or describe the form this notice should take. This has been the subject of countless lawsuits filed in federal courts under Title IX. Determining whether actual notice was provided not always easy to assess. This is particularly the case when students or parents do not know who should be told or when teachers fail to share reports from students or parents with the administration. An education expert witness must consider the specifics of a case, the context in which the alleged notice may have taken place, the understanding on the part of any individuals who received notice, and the overall context of the school environment when rendering an expert opinion as to whether a school received actual notice and if it responded reasonably to it.

                 

                Deliberate Indifference and Professional Standard of Care

                In some of the cases our firm has handled, it has become apparent that although sexual harassment or abuse may have occurred at the school or during a school-sponsored activity, the school had no actual notice of it. Without actual notice, there can be no deliberate indifference. On the other hand, in some cases it can be easily determined that there was at least some level of notice that sexual harassment may be taking place. Reporting a rumor about a sexual relationship between a teacher and a student, under the totality of the circumstances, constitutes actual notice.

                In its March 13, 1997 guidance, the Office for Civil Rights stated:

                “Title IX does not make a school responsible for the actions of the harassing student, but rather for its own discrimination in failing to take immediate and appropriate steps to remedy the hostile environment once a school official knows about it. If a student is sexually harassed by a fellow student, and a school official knows about it, but does not stop it, the school is permitting an atmosphere of sexual discrimination to permeate the educational program. The school is liable for its own action, of lack of action, in response to this discrimination.”

                When we review Title IX matters, our experts are asked to determine whether a school acted reasonably within the professional standard of care. The focus of our review is on how the school administration and/or other employees responded to complaints of sexual harassment or abuse. Although we carefully review the documents describing allegations of harassment and/or abuse and review the student record and staff personnel file, this information is less relevant than how the school responded to the report or a reasonable suspicion of inappropriate behavior.

                For example, if a student reports to her teacher that a classmate is continuously talking to her in a sexual manner and the teacher simply responds, “Ignore him and he’ll stop,” this might appear to be an inadequate response under the circumstances. If this occurs numerous times and the student now doesn’t want to come to school because she feels uncomfortable around her peer, then a hostile school environment has likely developed. Often, it is often argued that because the student did not report the behavior to a school administrator or another person in authority who could have intervened to end the harassment, the school is not liable. However, the question is: Did the school (the teacher) act with deliberate indifference to the complaint(s) of the student, and was this a reasonable cause for harassment to continue, thus leading to a hostile learning environment?

                We review school policies regarding sexual harassment, how it can be reported, and the expected response of the school. Next, we chart what issues of harassment were allegedly or actually reported to the institution and the school’s response. Finally, we render an expert opinion as to whether, in light of these facts, the school, through its administration and/or other employees, knew of the harassment and/or abuse but failed to respond. Did the school act deliberately indifferent to the safety of the student? If it knew of harassment or abuse and did in fact respond, then we consider whether the response was appropriate and reasonable under the circumstances and meant to end the harassment. A school may not be liable for damages unless its deliberate indifference subjects students to harassment or continued harassment.

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                  School District Liability: Duty of Care Owed to Students, Visitors, Volunteers, Trespassers and Local Agencies

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                    Whenever children are involved in events on school premises, there is always the possibility of school district liability for incidents that happen on school grounds or at school-sponsored events. This foreseeability gives rise to a duty to take reasonable steps to prevent a child from being harmed. Public school districts may find themselves liable for injury — not only for those suffered by their own students, but also for those incurred by children who are invited onto school grounds, who attend separate programs on school grounds, and even those who are considered trespassers.

                    School-sponsored events, such as an after-school club, a school dance, or a daycare program run by the school board, are clearly extensions of the school. With these types of programs, the school’s safety and supervisory policies apply. If a person is hurt or is sexually assaulted during a school-sponsored or operated event, it is generally clear that school district liability will attach if there is a finding of negligence.

                    A school district’s liability for injuries to children on its grounds is far less clear, however, when an outside organization is involved or when an injured party was not authorized to be on campus. Schools sometimes rent or give space to organizations like the Boy Scouts, a community basketball organization, or a private dance school to provide services to the general public, students at the school, or both. Very often, outside organizations cooperate with the school to provide before- and after-school services for the school’s own students, but these programs are not directly operated by the school. Typically, schools have policies that spell out an approval process for the use of their space. However, based on some of the cases for which we have been engaged, these policies do not always go far enough — thus leaving school districts open to liability if a child involved in an activity that is run by an outside organization is injured on school grounds.

                     

                    School District Liability When an Outside Agency or Organization is Involved

                    For example, one of our cases involved a school that allowed a community athletic association to use its gym. The board of education approved the application and even noted that the organization had liability insurance. One of the volunteers with the athletic association led a participant, who was also a student at the school, to the restroom — where the volunteer sexually assaulted the student. When we reviewed the facts to render an opinion as to whether this school acted within the professional standard of care, it became evident that the athletic association never trained its volunteers in the prevention, detection, and reporting of suspected child abuse. It did not have a plan for supervising its volunteers, nor did it check their backgrounds before allowing them to have contact with the children in their program.

                    One of the questions that arose in this case was: Did the school have a responsibility to ensure that the other organization had policies in place to reasonably protect the school’s own students from harm?

                    School district liability and duty of the school to the plaintiff depends upon the relationship between the plaintiff and the school, the relationship between the plaintiff and the other organization, and the relationship between the school and the other organization. Often, these relationships are complicated, and it is necessary to determine which agency had responsibility for the plaintiff’s safety at the time of the incident.

                    Consider the following examples:

                    • A school allows one of its teachers to use the music room after school to provide private lessons. The teacher systematically lures a student into an inappropriate relationship and is accused of sexually abusing him in the school.
                    • A person on the school’s grounds when not authorized suffers an injury. Even though this person would be considered a trespasser, the school may be liable under certain circumstances.
                    • The parent of an athlete from an opposing wrestling team falls from the bleachers in the high school gym. Which school — if either — had responsibility for his safety?

                    In any of these scenarios, the school may become a defendant in a lawsuit and argue that it had no responsibility for the safety of the plaintiff.

                    One of our cases involved an allegation that two students sexually abused a high school girl under the bleachers during a football game. All three students were at the football field to watch the game and were allowed to be there. The plaintiff student had an implied invitation to enter the premises (the football field), and she entered for the purpose of which the invitation was extended (to watch the game). In a situation like this — all parties at a school-sponsored event were authorized to be there — the plaintiff’s attorney would need to show that the school had a duty to the student to take affirmative action to protect her from an unreasonable risk of harm.

                    While the school is not a guarantor of the student’s safety, it must take an affirmative action in anticipation of foreseeable injury in order to minimize school district liability. The plaintiff must show that the school knew, or should have known, that the dark area under the bleachers amounted to a defective condition, that the risk to the student could be foreseen, and that because of the school’s negligence in not correcting this condition (not illuminating the area), a student could be assaulted in that location. The defendant’s attorney, on the other hand, must show that this area of the bleachers did not constitute a defective condition, that the information known by the school would not give rise to the foreseeability of the plaintiff being sexually assaulted in that location, and that intervening variables served as proximate cause of her injury. An education administration and supervision expert witness would determine whether the school maintained its property in a reasonably safe condition and whether it reasonably supervised its property during the game.

                     

                    Questions That Help to Determine School District Liability and Duty

                    When attorneys engage our firm’s services to render an opinion as to whether the school bore responsibility in specific circumstances, we review the duty owed to the plaintiff and whether the school acted reasonably, appropriately, and within the professional standard of care. Often, this analysis begins with a determination of whether the plaintiff was authorized to be on the premises (for instance, a student attending class); was invited to be on the premises (for instance, a member of a visiting football team playing a game against the home team); was a licensee by virtue of an agreement with another entity (for instance, an enrollee in a dance school); or whether the person was trespassing. With each of these classifications, a different approach is applied to the analysis of which entity was responsible for protecting the plaintiff from harm and what that responsibility involved.

                    When developing an opinion in such cases, our expert witness will apply his education, training, and professional experience to answer several questions: Who was the responsible agency? What policies did the agency have in place to protect individuals from harm? Did the agency apply its policies? What training was provided to the staff that was responsible for supervising children, and was the training reasonable? Did the agency meet other required standards, such as those required by licensing agencies? Did the agency vet and supervise individuals who were responsible for the safety of children?
                    In examining these questions, it can be determined whether the school had a duty to the plaintiff and whether that duty was breached resulting in school district liability.

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

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                        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.

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                          Student Safety: Screening and Background Checks for School Volunteers

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                            student safetySchools, after-school programs, summer camps, sunday schools, daycares and other agencies that supervise children are responsible for student safety of children in their care. Failing to apply the same attention to ensuring that non-licensed individuals, such as volunteers, meet the same standards as teachers and other paid staff can place students — and ultimately a school, district, or other agency — at risk. When the history of a volunteer or chaperone on an overnight school trip includes something that would raise a red flag but the school is unaware of it, school officials are not able to make an informed decision about whether or not that person should be allowed to interact with children.

                            The risks of not adequately screening individuals who have direct contact with children have been apparent in cases for which Education Management Consulting, LLC, has been engaged to review and provide expert witness services. Many such cases involve harm, injury, negligent supervision and even sexual abuse of children by volunteers. At times, our reviews of school policies, personnel records, and testimony have determined that failure to conduct a reasonably appropriate background check and screening was the proximate cause of harm to children.

                            In one such case, the school argued that there was no state requirement for a district to apply the same level of scrutiny to volunteers as when it hires teachers. The school had conducted a standard criminal background check, but unlike the standard it applied to teachers, the school did not conduct interviews with supervisors at past volunteer posts. The volunteer was allowed to participate in a classroom on a regular basis. Over time, he developed an inappropriate sexual relationship with one of the students. A case review discovered that he had served as a volunteer in another school district, where he was told not to come back because the administration was uncomfortable about his interactions with students. The volunteer had listed the prior school and his supervisor on his volunteer application, but the new school did not contact the prior school for a reference. Had the school done so, it likely would not have compromised their student safety and would have heard about the previous school’s concerns and rejected his volunteer application.

                             

                            State Requirements for Volunteer Screenings and Background Checks

                            Background checks and screenings of teachers are required in every state, and school districts have developed procedures to provide reasonable assurance that only teachers of high moral quality come in contact with children. When a background check reveals that a candidate was convicted of domestic violence or another crime against a person, the school may be prohibited from hiring that person.

                            Conducting background checks on prospective teachers as a student safety measure has been established in the field of education administration for decades. However, it wasn’t until 2000 that states began to pass laws addressing background checks on volunteers, and to this day, a patchwork of legal requirements exists. New Mexico, for instance, mandates background checks on all school volunteers, while New Jersey “allows” but does not require boards of education to conduct criminal record checks on volunteers. Volunteers in Florida schools are screened only for criminal histories logged in the state of Florida but not in other states. When state law is less strict for volunteers than it is for teachers, schools are free to adopt their own policies that are more stringent.

                            National guidelines developed by the American Academy of Pediatrics and the National Association of School Nurses encourage schools to conduct criminal background checks on all volunteers. To help schools implement this guideline, Texas Education Code allows a school district to obtain from any law enforcement or criminal justice agency all criminal records that relate to a person who serves as or has applied to be a school volunteer. In Pennsylvania, schools must check volunteer applicants’ backgrounds through the state Department of Human Services and Pennsylvania State Police, and are also required to obtain a federal criminal history. Seattle Public Schools screen all volunteers who work directly with students through the Washington Access to Criminal History background check system — the same process used for teachers and other licensed staff — and conducts reference checks. Volunteers are allowed to begin service before the screening process is completed, provided there is proper supervision. The volunteer’s continued involvement with the school depends on the results of the check.

                             

                            Student Safety in Specialized Programs and Placements

                            While schools have a responsibility to protect student safety on campus, on school-sponsored trips, and at school activities, are they also responsible for the protection of students who attend programs at a school that is not under its direct control, such as a special education or vocational school? Should the school that assigns students to such programs assure that the employees and volunteers at the receiving school meet certain screening standards? If a school allows a private after-school program to operate in its gym, should it assure that volunteers in that program meet the same standard as if they volunteered in the school?

                            These are among the many questions in cases for which we have been engaged. Every case is uniquely different, and an analysis leading to an expert opinion can be very complex. In each case, however, the ultimate standard of professional care is that the school, through its administration, has a responsibility to act appropriately and reasonably to protect the health, safety, and well-being of its children. It is reasonable for the home school to expect that an external program or service will effectively screen employees and volunteers who come in contact with its students.

                            Examining one of our cases involving a child with a disability will help to illustrate. A high school student was placed in a class for students with cognitive and physical disabilities. As she got older, it was necessary for the school to deliver vocational training services through a separate agency. School personnel, the student’s parents, and others involved in this decision understood that the student demonstrated inappropriate, sexually oriented behavior toward peers and needed careful supervision wherever she was educated. This also required that those working with her at the school, including teachers and volunteers, were appropriately screened. Knowing of her propensity for this type of behavior should have caused her school to consider whether those she would come in contact with at the new placement would allow or encourage this behavior. Shortly after the student was placed at this program, and in my opinion because she was not adequately supervised, an adult volunteer engaged in inappropriate sexual behavior with her. As part of the overall review of the case, the personnel file of the volunteer was examined and it revealed that he was not screened by the vocational program administration — in my opinion, a failure of the home school to meet the professional standard of care. Teachers at the program needed to be licensed, which required a criminal background check. Volunteers, however, were allowed to work in the program without a background check. It would have been reasonable for the school sending its student to the vocational program to inquire about the program’s policy regarding background checks for volunteers and then determine whether the student would reasonably be protected from harm.

                             

                            Student Safety and Standard of Professional Care

                            When reviewing cases similar to those discussed above, we consider state law and school district policy as the standard, and then consider the overall responsibility of a school to protect its students. This is the overriding standard of professional care. If an adult staff member or volunteer who was not adequately screened should sexually assault a student, then an argument may be made that the proximate cause of the child’s injury was failure on the part of the school to fully investigate the person’s background in order to reasonably assure the protection of students. On the other hand, if the school followed state law and its own policy, applying the same standard to approving volunteers as it did for teachers and other staff, and yet an inappropriate relationship developed because of other circumstances, then it can be argued that the screening process was appropriate.

                            Does everyone in a school or other agency who has contact with children have to be screened? And what is an appropriate and reasonable level of screening? The distinction that should be made is whether a person is a visitor to a program or a volunteer who has a defined regular role in it. Parents have the right to visit their child’s school and to observe their child in class. They can have lunch with their child and attend classroom and school events. In this context, the parent is a visitor, and complete background checks are not required. When a parent or other person takes on a regular role in the classroom or supervises on an overnight class trip, more scrutiny is required. Providing assistance in these ways shifts the person’s classification from visitor to volunteer. If the person is in the school on a regular basis and others expect to see the person frequently, then he or she is considered a volunteer, and the school must make an informed determination as to whether or not to allow the person to interact with students.

                            Schools are held to strict requirements when hiring licensed school personnel. Applying the same standard to the screening of volunteers is one way to protect children from harm and keep them safe.

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                              Recreational and Summer Camp Activity Injury Liability

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                                Activity Injury LiabilityProtection of the health, safety, and well-being of children who participate in recreational activities at a summer camp, summer school program, or community and private recreation centers should be the standard operating procedure of all those who provide these services. The standard of care owed to children who participate in organized or sponsored recreational activities such as sports, dance, swimming, rock climbing and variety of other activities at a camp or other agency must be consistent with professional standards in the field. Ingraining standardized practices and responsible planning and supervision into the work habits of all employees will help to protect the employees and the agency from activity injury liability and costly litigation.

                                Many of the cases for which Education Management Consulting, LLC, provides consultation and expert witness services involve claims of negligence initiated by parents against a camp, school, or other activity center for injuries sustained while participating in sports or other physical activities. Criteria associated with the appropriate and reasonable care of children involved in recreational activities are generally of a higher degree than what would ordinarily be expected of the average person who cares for children outside of this context.

                                 

                                Reducing Risks of  Activity Injury Liability

                                In a 2013 article, “School and Summer Camp Liability,” I wrote that “meticulous planning will keep children safer and could help a camp or other agency avoid liability if they are sued for the injury of a child.” Camp administrators should instruct their staff to consider all the possible dangers that might cause injury to a child, then make a list of those dangers and how each can be avoided. The article concluded with a list of 10 elements elements that Education Management Consulting, LLC, considers when reviewing a case, including a camp’s risk management procedures. Having standards, certifications, policies, training, and adequate supervision in place is extremely important for minimizing risk for summer camps or other agencies that offer recreational activities that are generally accepted to be inherently more dangerous, such as boating, rock climbing, horseback riding, swimming, or water skiing.

                                At a minimum, recreational activity providers should [MD1] adhere to, and train staff in, the requirements of the authority that provides a license to operate and of the standards of the appropriate oversight organization. As an example of an oversight agency, the American Camping Association (ACA) publishes standards for ACA accreditation. These standards also serve to educate camp directors and personnel about practices and procedures that are generally followed within the camp industry. Although camps can choose to not be accredited, the ACA standards reflect the standard of professional care to which camps, certified or not, should adhere.

                                Individuals hired by camps to perform specialized functions, such as lifeguards or water safety instructors, powerboat operators, and horseback riding instructors, may also need to be certified or licensed. Certification or licensure implies that the person has received the requisite training. And yet, there is always room for the camp to provide additional training specific to the population being served or any unique activities. For instance, the Americans with Disabilities Act prohibits camps from refusing admission to children with disabilities. This presents challenges that can be met with adequate training. Where there are children with disabilities, specialized training that extends beyond certification instruction is necessary so that staff know how to handle special circumstances, such as a child with a behavioral problem.

                                When a camp makes safety training its first priority, there is less chance that an accident will occur, though if a child does become injured, there is less chance the sponsor will be held liable. The methodical and systematized practice of safety education until all employees instinctively perform their functions with safety uppermost in mind will help to keep children safe.

                                Reasonably appropriate action under specific circumstances — grounded in the professional standard of care and the camp or other agency’s own policies — will protect the camp or agency from liability if a child is injured. The camp or agency must have policies that specify standards for staff hiring and supervision and for site- and equipment-safety monitoring. An organization’s policies should be reflective of standards in the field of child supervision, as well as those gained from laws, regulations, and standards of the applicable oversight agency, such as the ACA. If a claim is filed against the camp, these policies will be reviewed and a determination made as to whether the camp or its staff met standards in the field and its own standards. If a camp lacks policies that adequately reflect standards of an oversight agency — or if it has good policies but does not follow them — an expert witness may determine these deficiencies to be the proximate cause of a child’s death or injury.

                                 

                                Specialized Training and Supervision 

                                As mentioned above, the ACA is one of the oversight agencies that provides accreditation to operate a camp. If the camp provides a watersport program with swimming, according to the ACA, it must have an appropriately certified lifeguard for each swimming activity. Further, camps must have written documentation that every lifeguard has demonstrated skill in rescue-and-emergency procedures specific to the activity. If the camp administration doesn’t check the lifeguard’s certification to ensure that it’s up to date and a child drowns while that person was charged with the child’s safety, the camp may be held liable for the death because of negligent hiring.

                                Even if the lifeguard has appropriate, up-to-date certification, it is the responsibility of the camp to adequately supervise the lifeguard. Certification doesn’t guarantee that the lifeguard won’t be easily distracted from closely watching the children in the pool. A person responsible for supervising the lifeguard should observe the person on a regular schedule, informally and formally, to be reasonably sure that he or she is adequately performing the job duties that will protect children. If a child drowns and a parent sues the camp, witnesses might testify that the lifeguard on duty at the time regularly left the lifeguard station, engaged in lengthy conversations with people standing next to him, or generally did not pay close attention to the children in the pool. If this is the case, it is likely the camp will be found liable for negligent supervision of the lifeguard. On the other hand, if the camp administration is able to show that it conducted regular observations of that person and that at no time did the lifeguard demonstrate inattention to his duties, the camp may be able to show it was not negligent in supervising the lifeguard. In this case, the claim of negligent supervision will likely fail.

                                Where a camp uses motorized boats for any activity, the boat drivers must be trained on state laws, rules of the water, safe loading and unloading of passengers, mechanical failure, and refueling. On-the-water training also is required, according to the National Association of State Boating Law Administrators (NASBLA). Anyone who operates a power boat at a camp must have the appropriate state-required license. The license assures that its holder has been trained. If an accident occurs involving a motorized boat that causes injury to a camper, and the driver of the boat does not meet state requirements of having a license and appropriate training, this will become one of the elements of negligence that might entitle a plaintiff to damages.

                                In a case reviewed by Education Management Consulting, LLC, a camper was seriously injured when he was pushed from an inflatable pontoon boat being towed behind a motorized boat. Upon review of the deposition testimony, police reports, and other documents, it was learned that the driver of the powerboat was not state-licensed and, therefore, should not have been operating the boat. The camp did not adequately train the driver about camper safety. Additionally, the inflatable boat was carrying too many passengers, according to the manufacturer’s warning, and there was no adult on the pontoon boat to supervise the campers. Testimony of the camp staff revealed that they were not trained in boat safety and they did not know how to supervise campers who engaged in horseplay on the inflatable boat. Together, these elements led to the expert opinion that the camp breached the standard of care.

                                 

                                Components of Child Personal Injury Cases

                                Those responsible for the safety of children in every setting — school extra curricular activities, daycare programs, summer camps and other recreational after school activities — have a responsibility to prevent children from being exposed to unreasonable risk. Thus, teachers, coaches, and camp counselors who are charged with instructing shop, physical, or other high-risk activities must provide the children with the best possible instruction, along with appropriate and safe supplies, materials, and equipment suitable to the age of the child while following manufacturer warnings guidelines and precautions. Some of the components we address when reviewing child-injury cases is whether the child received appropriate and reasonable instruction; whether the equipment was inspected, safe, and appropriate for the age of the child; and whether the level of risk associated with the activity given the experience of the children was acceptable.

                                An important element to be considered is whether an injury or death could have occurred or been prevented if the person in charge of the child had performed supervisory duties properly. In other words, did the person act appropriate and reasonably under the particular circumstances? If improper conduct or failure to appropriately supervise can be shown, then proximate cause is usually associated. If the person in charge of a group of young campers was told that the children can never be left unsupervised, and that person deliberately leaves the group alone for any period of time, an injury can occur. This injury may be directly related to the failure of the staff person to adhere to the standard set by the camp.

                                For example, in a case for which Education Management Consulting, LLC, was engaged, a public school was operating a summer camp and the counselors were instructed that no child was to enter the school building unattended. The claim in this lawsuit was that a child entered the school bathroom unsupervised and was sexually assaulted by an older student. Upon review of the testimony, the camp’s policy, and the factors that led to the children being in the building, it was my opinion that the camp breached its own policy with regard to students entering the building and that the counselor failed to adequately supervise the children in his charge. This lack of appropriate supervision though implementation of established policy was the proximate cause of injury to the camper.

                                Courts have consistently held that camp counselors and persons supervising children in schools or other agencies have several responsibilities for those who are placed in their care. The first responsibility is to provide adequate supervision. The second is to provide appropriate instruction, and the third concerns proper maintenance of buildings, grounds, and equipment so that accidents can be avoided. These are parts of the degree of care necessary to avert unnecessary risk. To avoid injury to children, those in charge at a camp must know the safety rules and practice them diligently — throughout the day, day after day — to protect children from injury and the camp from costly litigation.

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                                  Title IX and Sexual Violence at Colleges and Universities

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                                    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.

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                                      In Loco Parentis: Duty of Educators and Professionals in Residential Programs for Children

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                                        Educator DutySome of our most vulnerable children are relegated to a life away from parents, family, and their school to live where other adults take the place of their parents and are responsible for their custody or care – legally defined as in loco parentis. This occurs when children are placed in residential centers for the treatment of mental illness, schools for the deaf and blind, or similar facilities for children who require extensive medical care and management.

                                        In my September 2015 article, I discussed parental and professional standards of care when considering supervision of children in residential placements. The reasonable and prudent parent uses judgment in making decisions about their children’s care. Parents usually make decisions carefully, weighing the benefits and potential risks to come to a sensible decision that is in the best interest of the child. When professionals care for children, they have a duty to meet the same standard, but they also have a higher duty to meet the standards of a reasonably prudent professional. Professionals such as teachers, program administrators, psychologists, counselors, doctors, and nurses have the legal responsibility to exercise the level of care, diligence, and skill prescribed in the code of practice of their profession, the legal requirements of the government, and in the policies of the residential program.

                                        When a child has a condition or disability that is not common and when the child’s disability cannot adequately be addressed in the local school, community, or at home, placement at a specialized facility to meet these needs may be required. These placements provide educational, medical, and residential programs. Staff who supervise children where they live act in place of parents. These adults are expected to protect the child from dangers and prevent the child from engaging in harmful or irresponsible behaviors. This responsibility fulfills the reasonably prudent parent standard of care. In addition, the care of these children extends beyond the simple need to house them, and meeting the professional duty extends in tandem with their needs and disabilities.

                                         

                                        Duty Under In Loco Parentis

                                        In a residential facility, in loco parentis refers to how a supervisor or caregiver who directly oversees the actions of a child deals with the child’s conduct. This is the same as when a parent sets boundaries for his or her child, then instructs, guides, or disciplines the child. In a residential setting, the person who is standing in place of the parent holds authority over the child, acting in loco parentis.  Elements of in loco parentis define the duty that educators and caregivers owe to their students.  This includes principles of negligence and the duty to anticipate foreseeable dangers and take reasonable steps to protect students from those dangers.

                                        When an adult acting in loco parentis steps over the line with regard to the role of a reasonably prudent parent, the residential facility may be liable for the adult’s actions. As an example, a caregiver’s use of undue force that would fall under the definition of assault and battery may be cause for liability if the child is injured. If a child assaults and injures another child during a moment of inadequate supervision, this also may also be a cause for liability. The Ohio Supreme Court has stated that although a teacher may stand in loco parentis with regard to enforcement of authority, the teacher does not stand in loco parentis with regard to one’s negligent acts and thus is not accorded the same tort immunity given parents (Baird v. Hosmer, 46 Ohio St. 2d 273, 75 Ohio Ops. 2d 323, 347 N.E. 2d 553 (1976)). In the same way, while a person in charge of a child in a residence is considered acting in loco parentis, that person is not safe under tort immunity if he or she failed to act as a reasonably prudent parent.

                                         

                                        Professional Standard of Care

                                        A residential program becomes that child’s world. All his or her needs must be met, including shelter, food, medical care, counseling, and recreation, just as if the child was living at home and attending school. In this all-inclusive setting, there are people trained as professionals — teachers, counselors, psychologists, and supervisors — who have total responsibility for the health, safety, and well-being of the child. These programs must have adequate plans for meeting the needs of the children in their care, and these plans should be shared across disciplines and departments.

                                        For example, if a student has demonstrated behavioral problems while on a school trip, that information should be provided to the adults who are in charge in the residence and are acting in loco parentis. This process is similar to a schoolteacher informing a parent at home about a child’s behavior. The intent is to work together with the parents in the child’s interest. When this system is nonexistent or breaks down in a residential setting, resulting in student injury, the program may be open to liability. If a teacher observes a student running away during a class trip but fails to share that information with those in charge of the residence, the agency might be liable if the child wanders off and is injured. The agency had knowledge of the student’s behavior, failed to report it to those in charge of the residence and, overall, failed to enact a cross-departmental plan to protect the child.

                                        To protect children from harm and the agency from liability, it is important to conduct the required evaluations and assessments, have as much information about a student as possible, seek additional information when warranted, assess and evaluate behaviors and symptoms, share that information with key staff in residential, school, and health departments, and develop comprehensive plans that account for safety and supervision. All professionals involved, including residential staff, should pay attention to a child’s new behaviors, manifestations of challenges, and conditions that are part of their disability or diagnosis, and use that information as part of a coordinated approach for meeting the standard of care for the child in their custody.

                                        For example, I was engaged as the education administration and supervision expert witness in a case involving a child who had been receiving extensive counseling through a residential program’s health department. His tendency toward violent behavior and information about triggers for such behavior were not shared with other adults in the program, nor was this information used to develop a safety plan. Treating professionals did not assess and evaluate the student’s key signs of mental health deterioration, despite many instances that should have caused them to provide additional care. Eventually, the student suffered a mental breakdown, broke into an administrative office, grabbed scissors, and escaped the building. Police who arrived on the scene shot the student when he did not respond to their demands to put the scissors down. Mentally, he was not aware of what was going on and did not understand the police’s instructions.

                                        My review and analysis of this case led me to conclude that the program had sufficient information about the student’s emotional and behavioral issues but failed to address those manifesting behaviors, and on the day of the incident, staff was unable to communicate effectively with him to de-escalate the behaviors. Before being shot, the student was confronted by a teacher who did not have complete information about the student’s behavioral issues or how to deal with them. The teacher’s actions escalated the behavior, placed other students and school staff in harm’s way, and ended in student being shot. If the program had an overall safety plan for this student that included staff training in how to deal with him, it is less likely that he would have been shot. It was my opinion that the program, through its administration and other staff, breached the standard of professional care when it failed to address the student’s mental health issues, failing also to inform and train all staff about the student’s problems and how to protect the student and others from harm.

                                         

                                        Training and Oversight are Essential to Avoid Residential Program Liability

                                        Numerous case reviews by Education Management Consulting, LLC, have concluded that a residential facility or agency had access to policies and provincial, state, or federal rules, but those policies were not implemented nor was staff adequately trained to use them. In some of these cases, the result was that children were injured, sexually abused, or physically assaulted by other students. Prevention, detection, and reporting of child abuse, knowing how to administer appropriate restraints without injuring a child who acts out, and understanding the requirements for continuous supervision of children are just a few of the areas that require training and oversight. If an injured plaintiff can demonstrate that the facility had in-house policies or that government policies were available but it failed to train staff in those policies and supervise their work, then the program may not be able to avoid liability.

                                        Frequently, when I review a case as an expert witness, I find that the facility had adequate policies, the supervision of children and staff-to-child ratios were good, and the discipline code and rules for children were well thought out and reasonable, but there was a breach in the system. In one such case, for example, a child in a residential school sexually assaulted another in the bathroom. On paper, the policies and supervision procedures looked good. The missing link was that staff responsible for supervising children had knowledge that the predator had done this before, yet made no attempt to provide additional supervision when this particular child was alone with another.

                                        Policies are only as good as the training and monitoring of staff responsible for implementing them. In this case, the facility had knowledge of one resident’s sexually aggressive behavior, but failed to take any reasonable steps to prevent her from harming another child. They failed to provide her with any counseling or heightened supervision, and in fact one of her first offenses was not reported to outside authorities for investigation. In essence, she was allowed to continue her inappropriate behavior. If the facility provided her with appropriate follow-up counseling, reported the first incident to the authorities, and stepped up its supervision of her, it would have been, in my opinion, less likely that this incident would have occurred. 

                                        The American Academy of Child and Adolescent Psychiatry provides guidelines for residential treatment programs in its 2010 publication, Principles of Care for Treatment of Children and Adolescents with Mental Illnesses in Residential Treatment Centers. The Academy offers an approach for professionals about the provision of services and some important training and educational standards, such as hiring staff with appropriate credentials and experience.  There are other similar publications, training programs and professionals available to assist residential care centers with training and keeping up with the standards in the field.

                                         

                                        Summary

                                        On December 3, 2014, the Chicago Tribune reported that thousands of children in residential treatment centers in Illinois are assaulted, sexually abused, and run away. The residential centers promise round-the-clock supervision and therapy to children who are wards of the state and who have histories of abuse and neglect, as well as to other disadvantaged youths with mental health and behavioral problems. The Tribune reported that patient-on-patient sexual assault is commonplace at some facilities, and vulnerable children are terrorized by older ones. Some are preyed on sexually by adults paid to care for them. In the three years ending with 2013, Illinois residential facilities reported 428 alleged cases of sexual assault or abuse of children in their care to the state Department of Children and Family Services. The state and program administrators said they are underfunded and overwhelmed by too many children, many of whom don’t belong at the facility. In a legal assessment of whether a program, its administration, or staff acted appropriately and reasonably in a specific circumstance, however, these are no excuses.

                                        Adults in schools, camps, daycare centers, and residential programs have a duty to protect children from harm. But when children are placed away from home, out of sight of parents in residential programs, it isn’t unusual for them to be subjected to harm.  Unfortunately abuse and mistreatment typically comes to light after years of poor management, lack of training, lack of government oversight, and staff incompetency. In so many institutions and residential programs, children are often forgotten — out of the sight of the public and their parents. Some programs began in the 1800’s when social capabilities and awareness, along with frustration and lack of resources, forced them into existence. We are just realizing now that so much mistreatment and abuse has taken place but kept quiet and children were hurt.

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