July 21, 2017

Student Safety: Screening and Background Checks for School Volunteers

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.

Title IX and Sexual Violence at Colleges and Universities

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

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

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

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

 

Title IX Policies Are Only Effective if Implemented

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

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

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

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

 

Title IX Compliance Checklist for Colleges, Universities and Public Schools

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

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

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

 

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

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

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

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

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

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

Campus Sexual Assault and Harassment Lawsuits: Title IX Standards and Questions of Liability

Campus Sexual Violence

When students are sexually assaulted or harassed, they are deprived of equal and free access to an education.

In 2011, the U.S. Department of Education Office for Civil Rights (OCR) issued a “Dear Colleague” letter to college and university administrators about implementation of Title IX of the Education Amendments of 1972 in regards to campus sexual assault cases. Title IX prohibits discrimination on the basis of sex in education programs or activities in schools that receive federal funding. The letter explains that schools are required to develop and distribute policies regarding sexual harassment, designate a Title IX coordinator to oversee the school’s duties, train staff and students in sexual harassment and violence issues, and establish an investigation procedure and an adjudication process. The letter did not articulate specific procedural safeguards, rules for the examination of evidence, or guidelines for the conduct of adjudication or hearing processes for cases of campus sexual violence.

This lack of specificity allowed colleges and universities to develop and implement their own procedures, which vary widely from campus to campus. As a result, some schools have implemented procedures that, however well intended, may ultimately be judged as arbitrary and capricious — opening the gate for lawsuits from either an alleged victim who may feel that he or she was not adequately heard or from an accused individual who feels unjustly punished. In the end, determination of the believability of the alleged victim and the punishment of the accused is in the hands of school officials.

Title IX Standards and Campus Sexual Assault Liability

Campus sexual assault and violence in higher education institutions is a pressing civil rights issue. When students are sexually assaulted or harassed, they are deprived of equal and free access to an education. It is also a matter of law; sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.

A report of student-on-student sexual harassment on campus is not enough to demonstrate a Title IX violation. The school’s actions in response to a complaint are key to a school’s liability. Federal courts have held that there is no violation of civil rights laws if harassment occurs, as long as the school investigates an allegation in good faith. Disputes often rest on this question. In a recent article, I discussed Title IX as it applies to elementary and secondary schools. In this article, I reinforce that Title IX is also applicable to colleges and universities that accept federal funding, and that its misapplication can result in a lawsuit against the school.

Critical Elements of a Title IX Lawsuit Applied to Campus Sexual Assault Cases

A Title IX lawsuit  will focus on the college’s handling of sexual misconduct, complaints, investigations, and training of staff. As an example, in J.K. v. Arizona Board of Regents, a federal court in 2008 rejected Arizona State University’s argument that it was not responsible under Title IX when a campus athlete raped a student, even though ASU had previously expelled the athlete for severe sexual harassment of multiple other women on campus. Under the settlement, ASU awarded the plaintiff $850,000 and agreed to appoint a student safety coordinator to review and reform policies for reporting and investigating incidents of sexual harassment and assault. In a 2006 case, Simpson v. University of Colorado, a federal court found that there was sufficient evidence to suggest that the university acted with deliberate indifference toward two students who were sexually assaulted by student football players and recruits. In settling the case, the university agreed to hire a new counselor for the Office of Victim’s Assistance, appoint an independent Title IX advisor, and pay $2.5 million in damages.

Implementation of Professional Standards

A July 12 New York Times article, “Reporting Rape, and Wishing She Hadn’t: How One College Handled a Sexual Assault Complaint,” illustrates what can go wrong when schools fail to adhere to professional standards, don’t train staff, or in appropriately investigate a complaint.

Professional standards include implementation of federal and state statutes, regulations and advisories, and institutional policies, as well as explicit and implicit contracts and the reasonable administrator standard (whether a reasonable administrator agree that the college or university had a duty to act in a certain way under the circumstance). College policies must adequately reflect these standards. School officials’ conduct must be consistent with good policy.

The question of whether a college or university met the professional standard of care is determined by answering the question: “Did the school, through its administration and/or other employees, act appropriately and reasonably under the circumstance?”

The question of appropriateness is answered by reviewing the professional standards and comparing them against the school’s actions. As an example, the federal standard (34 CFR §106.8[b]) requires a college or university to adopt and publish grievance procedures providing for prompt and equitable resolution of complaints. Did the school adopt and publish a grievance procedure? Did it provide for prompt and equitable resolution of a complaint?

The question of reasonableness is answered by analyzing the facts as gleaned through a review of such documents as the grievance report, police reports, transcripts of the disciplinary hearing, and training documents. Did the school act promptly once it knew or had reason to believe that a student was sexually harassed or assaulted? Did the school provide an equitable resolution to the complaint of campus sexual assault? Was the process of investigation thorough and fair to all parties? Was the disciplinary hearing impartial, unbiased, and evenhanded?

Inadequate Due Process in Cases of Campus Sexual Violence

In the Times article, reporter Walt Bogdanich described the plight of an 18-year-old freshman on the campus of Hobart and William Smith Colleges in central New York. In describing the process followed by the school, Bogdanich demonstrated — and I agree — that the school was ill prepared to evaluate an allegation of a campus sexual assault. I also agree with the reporter’s assertion that this case illustrates how school disciplinary panels are “a world unto themselves, operating in secret with scant accountability and limited protections for the accuser or the accused.”

In this case, three football players were accused of sexually assaulting the freshman at a party. Later the same night, a friend found the student in another location on campus, arriving to see one of the athletes raping her. No one, including the victim and the student who observed the assault, initially reported the behavior. Because the school had no actual knowledge of this behavior, it had no duty to act at that time.

The Title IX standard is that if a school knows or reasonably should know about student-on-student harassment or abuse, the school must take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.*  Shortly after this incident, the student reported events to campus security. Security completed a report, and the college disciplinary committee convened to determine the believability of the victim, witnesses, and alleged assailant and to dole out discipline.

The college investigated the campus sexual assault report, held a hearing, and cleared those allegedly responsible in a space of 12 days. Even though one might praise the school for acting swiftly, a closer look must be given to the process of the review and training of those making the decision.

The “Dear Colleague” letter mentioned previously clearly sets the standard: The school’s inquiry must in all cases be prompt, thorough, and impartial. The three elements — prompt, thorough, and impartial — should be executed in the context of the professional standard of care. In this case, the investigation was prompt. But I would argue it was not thorough and impartial.

A three-member panel convened behind closed doors to adjudicate the student’s complaint. According to the Times, the panelists “acted as prosecutor, judge, and jury, questioning students and rendering judgment.”

There is no evidence in the record, the Times reported, that those sitting on the panel were trained in sexual harassment and abuse issues. The victim’s attorney scoffed at the “absurdity” of the questions asked during the review by one panelist, who asked the witness whether he had seen the accused student’s penis in the victim’s vagina or if he had just seen them having sex. Any reasonable school employee who is appropriately trained to participate in such a panel would agree that this question demonstrates lack of training — implying a breach of the professional standard of care.

Members are supposed to be trained for this type of assignment. Indeed, OCR states that training for administrators, teachers, staff, and students can help to ensure that they understand what types of conduct constitute sexual harassment or violence, identify warning signals that may need attention, and know how to respond.

According to OCR, all persons involved in implementing grievance procedures, including investigators and adjudicators, must have training or experience in handling complaints of sexual harassment and violence as well as knowledge of the school’s grievance procedures. In sexual violence cases, the fact finder and decision maker also should have commensurate training or knowledge about sexual violence. For instance, if an investigation or hearing involves forensic evidence, that evidence should be reviewed by a trained forensic examiner.

Summary

If a college has appropriate policies, adequately distributes those policies, appropriately trains its staff to investigate complaints of campus sexual assault or harassment, and conducts an unbiased hearing, then there is little an alleged victim can present if he or she disagrees with the decision of the disciplinary panel. If, on the other hand, the facts demonstrate that policies were nonexistent, not representative of the professional standard of care, or not adequately distributed to staff and students, or that those sitting on the panel were inadequately trained and the hearing was conducted contrary to the professional standard of care, then the victim or the perpetrator might present a convincing argument for appealing a panel’s decision.

In this case, the school may have failed to meet the professional standard of care. If it happened at this school, it is likely happening at colleges and universities around the country. That failure can leave schools liable for incidents involving campus sexual assault and harassment, and can result in expensive lawsuits and settlements.

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*This is the standard for administrative enforcement of Title IX and in court cases where plaintiffs are seeking injunctive relief.  The standard in private lawsuits for monetary damages is actual knowledge and deliberate indifference. See Davis v. Monroe Cnty. Bd. Of Ed., 526 U.S. 629, 648 (1999).