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.

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

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.

Title IX and Sexual Abuse in K – 12 Schools

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

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

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

 

Appropriate and Immediate Response Is Critical

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

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

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

 

Supreme Court cases defining Title IX liability Following Sexual Abuse

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

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

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

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

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

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

 

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

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

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

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

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

 

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

Assessment of Liability: Child Abuse and Injury in Residential Care

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

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

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

Reasonable and prudent parent standard

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

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

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

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

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

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

Standard of care for residential and boarding schools

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

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

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

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

Expert role in assessing standards of care

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

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

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

Real case examples

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

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

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

Mandatory Child Abuse Reporting and School Liability

Lost and aloneWhen child abuse is alleged to have taken place in a school, daycare facility, preschool program, summer camp, or other entity responsible for the supervision and safety of children, there is always the possibility that the entity may be liable if negligence can be established. Schools and other entities with a duty to protect children often become embroiled in lawsuits alleging that breach of this duty was a proximate cause of a child’s injuries. Though laws vary, states adopt a broad definition of child abuse, including physical and emotional abuse, neglect and abandonment, incest, sexual molestation, and sexual exploitation. Typically, a child abuse report must be made to a designated state agency responsible for child protective services when a person, in his or her official capacity, suspects or has reason to believe that a child has been abused or neglected, or knows that a child has been subjected to conditions that could reasonably be expected to result in harm.

Mandatory Child Abuse Reporting

For example, if a parent takes a child to the emergency room after the child comes home from a day care center with an injury, the treating physician may make a child abuse report based on a reasonable suspicion that abuse occurred at the center. The child protective agency will conduct an investigation to determine whether the report can be substantiated. If it is substantiated, the parent may file a civil lawsuit against the daycare center for claims that might include negligent supervision of children; negligent hiring, training and supervision of staff; breach of professional standards of care; breach of the day care center’s own standard; and any other claims that may have been a proximate cause of the injury.

All U.S. states and territories have laws identifying individuals who are required to report suspected child abuse. Social workers, doctors, teachers, school principals, and other professionals who frequently work with children are usually identified as mandated reporters. Mandates aside, any person with reasonable cause to believe that a child was abused can make a report — and a handful of states, such as New Jersey and Wyoming, requires anyone who knows of or suspects abuse to make a report. State laws anticipate that schools and other entities will have developed internal systems for processing child abuse reports and complying with state statutes. The law may also require the school or entity to provide its employees with written information explaining reporting requirements and to provide training in their execution.

Lack of Child Abuse Reporting Training and Procedures

During the course of an investigation into alleged child abuse, it is not uncommon to learn that staff at a daycare center or school had knowledge of, or had observed behavior indicative of, child abuse or neglect but failed report it to the appropriate agency. Failure to report often results from lack of training about mandatory child abuse reporting laws and detection of child abuse and neglect. This can leave a school or other entity involving children liable for a child’s physical and emotional injuries. Thus, for the protection of children, it is extremely important that all employees are trained in the prevention, detection, and proper reporting of child abuse. Many schools and daycare centers bring in outside companies and professionals to provide training.

Schools often lose a civil lawsuit when a plaintiff’s attorney can demonstrate that staff was not aware of their responsibility to report suspicion of child abuse. Consider this example: An elementary school librarian watched as a child with a disability who exhibited behavior problems was aggressively dragged out of the library by her special education teacher and forcefully slammed onto a chair in the hallway. Concerned, the librarian reported the teacher’s behavior to the principal. “Oh that’s happening again?” the principal responded. Neither the librarian nor the principal subsequently reported the incident to the proper authorities, even though the principal had prior reports of this teacher mistreating students. The teacher’s behavior continued for several months until a parent went to the police and filed a complaint.

In this case, if the plaintiff’s attorney can demonstrate that the teacher’s behavior would lead a reasonable professional to report such behavior — yet the lack of such a report allowed the behavior to continue, ultimately resulting in harm to a child — then he or she will be in a strong position to settle in favor of the child. If, on the other hand, the defendant’s attorney can demonstrate that the school had appropriate policies and procedures; adequately trained its staff in the prevention, detection, and reporting of child abuse; disciplined the teacher appropriately when an incident occurred; and took other measures to protect students, including the plaintiff, the school will have a better chance of defense.

At schools and other entities responsible for the supervision and safety of children, staff may learn of abuse in two ways. They may see abuse or have direct knowledge of it. Alternatively, they become aware of the possibility of abuse through rumors, innuendo, or secondhand reports. A pattern of poorly explained bruises and other injuries may raise reasonable suspicion of abuse on the basis of conversations with the child or his or her parents, family, or friends.

To protect children and to allay fears of legal reprisals, people who report child abuse are granted civil and criminal immunity. In some states, immunity is absolute, meaning there is no liability, even for maliciously and knowingly submitting a false report. In other states, immunity is granted only for reports made in good faith. Good faith will be presumed if the reporter acted in the discharge of his duties and within the scope of his employment, and if the report did not result from willful misconduct or gross negligence.

Even with the protection of immunity, administrators and teachers often hesitate to make child abuse reports. Failure to make a report is a misdemeanor that exposes the educator to the possibility of criminal prosecution. There is also the possibility of civil liability if harm done to a child might otherwise have been prevented by reporting prior behavior. It is, therefore, a legal imperative that teachers, counselors, and others responsible for the safety and welfare of children file a report whenever they have reasonable cause to suspect child abuse.

Carrying Out the Duty to Protect Students from Child Abuse

Schools and other agencies have a duty to protect children in their care from harm. This includes abuse inflicted or created by its own staff and by fellow students. Although laws vary from one state to another, definitions of abuse often are based on the federal Child Abuse Prevention and Treatment Act (CAPTA) of 1974. CAPTA identifies child abuse and neglect as “the physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child … by a person who is responsible for the child’s welfare.”

While acts by a staff member that result in student injury generally fit into the category of negligence, a teacher or an administrator as a state actor can generate a state-created danger. As opposed to negligence, state-created danger is generally applied under Section 1983 of Chapter 42 of the United States Code. School officials can be held responsible when they knew of impending danger, were recklessly indifferent to it, and thus knowingly created a dangerous environment that led to an otherwise preventable injury. Section 1983 has been used to seek monetary damages for violations of what courts refer to as bodily integrity, which is protected by the 14th Amendment, which prohibits “unjustified intrusions on personal security.” Most such cases involve either sexual molestation or excessive corporal punishment.

At the state level, case law has established a school’s responsibility for protecting students against the actions of other students, in addition to the actions of staff members. In Frugis v. Bracigliano (177 N.J. 250 [2003]), the New Jersey Supreme Court ruled that “[a] board of education must take reasonable measures to assure that the teachers and administrators who stand as surrogate parents during the day are educating, not endangering, and protecting, not exploiting, vulnerable children.” Four years later, the same court, in L.W. ex rel. L.G. v. Toms River Regional Schools Board of Education (189 N.J. 381 ([2007]) expanded “reasonable measures” to include protection from student-on-student harassment. This case involved a youth whom classmates taunted with homosexual epithets. The majority opinion stated that “although Frugis involved the need to protect children from adults, its rationale also applied to the present circumstances.”

Schools often establish procedures requiring teachers and other employees to report suspected abuse to the principal or school social worker. When a statute requires a teacher to make a prompt report of suspected abuse to state authorities or law enforcement, the teacher is not relieved of this obligation simply because he or she has followed internal reporting procedures. Some state laws do excuse a teacher from state-mandated reporting if someone else either has done so or will report the incident of suspected abuse. In these situations, teachers should always follow up to ensure the report was made to the appropriate agency.

Assessing whether a school or other entity acted reasonably, appropriately, and within the professional standard of care in a given circumstance requires comparing the standard (state law requirements and the school’s own policies and procedures) against school officials’ behavior. Their actual behavior, or response to an issue of abuse, is established by reviewing the facts as identified through reports and testimony. For example, if a school requires that all staff receive copies of the state statute and the school’s own policy governing the prevention, identification, and reporting of suspected abuse, the plaintiff’s attorney may argue that the school either failed to have the policies required by law or, at best, had these policies in place but failed to implement them effectively, constituting proximate cause of injury to a child. The defendant’s attorney, on the other hand, will argue that the school or entity met the professional standard of care by having appropriate and reasonable policies and procedures but that an intervening element, such as an employee’s willful disregard for this standard, was a variable leading to the injury.

Should the School Have Known of Child Abuse?

To what extent must a school or other entity responsible for care of a child have knowledge of a reason to take action before it can be held liable? A Kansas case is illustrative of this point. In Canaday v. Midway Denton U.S.D. No. 433 (218 P.3d 446 Kan. Ct. App. [2009]). a student alleged abuse by a coach whose predisposition to sexual misconduct was known by the school. The school countered that that coach’s conduct was unforeseeable. Prior to the allegation, the superintendent received two reports from other students who claimed that the coach inappropriately touched them. A prior investigation did not reveal evidence to support a claim of misconduct at that time, though the court concluded that the investigation provided grounds for the case to survive summary judgment and that a jury should determine whether the school should have foreseen the teacher’s conduct.

In another example, a federal court in Pennsylvania determined that school officials must take prompt legal action if they know or suspect that a teacher or other staff member is abusing a child. In Kimberly F. v. Northeastern Educ. Intermediate Unit 19 (2007 U.S. Dist. LEXIS 35778 [M.D. Pa. 2007]), a parent of a child with autism sued on numerous federal and state grounds, alleging that the teacher hit, grabbed, stepped on, verbally abused, and physically restrained their child. The suit also claimed that two assistants had notified supervisors, but the supervisors purportedly failed to investigate or report the teacher’s alleged conduct to child welfare authorities. The parent claimed that the supervisors instead accused the assistants of “breaking a silent code” and transferred them to another district. The court wrote that it was reasonable to infer that the supervisors “were on notice about [the teacher’s] alleged abusive acts and knew or should have known that their nonfeasance would allow the abuses to continue.” The court disallowed the supervisors from asserting qualified immunity as a defense.

Summary

Some things a school or other entity should consider to protect the safety of children in their care and to safeguard themselves from liability:

  • Train staff to identify indicators of abuse and about their duty to report
  • Develop and rigorously enforce a clear policy on each employee’s role in protecting children and responsibility for reporting abuse
  • Employ screening methods and follow state background check laws to keep abusers from having contact with children through the hiring process, and carefully check employment references
  • Educate children in how to recognize abuse and how to respond when they are abused

Together, state law and internal policy constitute the professional standard of care for a given school or other entity entrusted with the care and safety of children. The question of whether the entity acted reasonably and appropriately and within the professional standard of care with regard to the protection of children is addressed through the context of both. There are common elements in state child abuse statutes. The laws require certain professionals with “reasonable cause to believe” or “reason to believe” that a child has been abused or neglected to report suspected abuse. Actual knowledge of abuse is not necessary. Once abuse is suspected, the report must be made immediately to designated child protection agency, department of welfare, or law enforcement unit, depending on the specifics of the law.

School teachers and administrators and staff at daycare centers, camps, and other entities are often the first line of defense against abuse of children. Lawsuits against schools and other entities often focus on inadequate policies, lack of appropriate training, poor investigative procedures, failure to report to the a child protective agency, and deliberate indifference to what officials knew or should have known. When any of these elements can be demonstrated, the institution may have difficulty defending its actions. On the other hand, if the school or other entity takes some important steps to protect children — and abuse nonetheless occurs — the defendant may be able to present a cogent argument that it met the professional standard of care and that failures to report or follow procedures were not a proximate cause of injury.

What the Sandusky Sentence Means for Schools and Parents

Sad little girl

Schools have a duty to keep children safe!

Former Penn State Assistant Football Coach Jerry Sandusky was sentenced this week to 30 to 60 years in prison. The sentence essentially guaranteed that the 68-year-old Sandusky would die in prison.

 

Sandusky, the jury determined, had abused 10 boys — all of them from disadvantaged homes. Sandusky used his connections to the Penn State football program, as well as his own charity for disadvantaged youth, the Second Mile, to identify potential victims, get close to them, and then sexually violate them.

 

Judge John Cleland said that Sandusky’s ability to deceive those who trusted him and who thought so highly of him made his acts “heinous.”

 

Education Management Consulting, LLC, is engaged to provide consultation and expert witness testimony in numerous cases involving the sexual harassment and abuse of young people. Many of the cases we handle have two elements similar to the Sandusky case:

 

Sandusky worked as a coach for a school. More than just a few of our cases have involved inappropriate relationships between coaches and students.

 

The boys Sandusky abused were from disadvantaged homes. In many of the cases we have handled, the teacher or coach established “clubs” and “help” groups for students who didn’t have the advantage of parents who could send them to swimming lessons or take them to the movies.

 

Together, these two elements — being a coach, counselor or teacher, or someone in any position that places an adult close to children who appreciate any attention they receive because they don’t get it at home — are a potential recipe for child abuse. This isn’t always the case, of course, but such a situation compels all parties to pay attention.

 

Whose responsibility?

 

What is the school’s liability when a plaintiff sues a school district for negligent supervision or negligent hiring?

 

In reviewing and analyzing the facts of each case, often I have found that that the school, through its staff, knew that inappropriate behavior was taking place between a staff member and a student. If the school failed to act upon this knowledge to head off or end sexual harassment or assault, my expert opinion might be that the school did not meet the professional standard of care — and that this breach may have provided an opportunity for the staff member to develop and nurture an inappropriate relationship with a student.

 

On the other hand, often I have determined that the school, through its employees, had no actual knowledge or reasonable cause to believe that the staff member was sexually harassing or abusing any student, including the plaintiff. My opinion, then, would be that the school met the professional standard of care under the circumstances, and there was information that would have caused a reasonable school administrator or other school employee to supervise the staff member or student any differently.

 

When a teacher is convicted of sexual assaulting a student at her school and the school had no reason to supervise them any differently, then the issue of supervision often rests with the parents. In many cases I work on, the teacher and student develop a relationship outside of school without school officials knowing it. In one such case, a teacher who tutored a student in the student’s home took the student on weekend trips and frequently hung around the student’s home. All this was under the assumed supervision of the parent; the school had no information that any of this was taking place.

 

Years later, the former student sued the school. The lawsuit alleged that the school should have known that the teacher was spending an inordinate amount of time with students, including the plaintiff, outside of school; that the teacher was tutoring the student at home; and that the teacher was taking the student on weekend trips. The plaintiff argued that the school should have known that these were signs that a teacher was a pedophile and that the school ignored its duty to protect the student — ultimately resulting in alleged sexual abuse. My opinion was that because the school had no knowledge of the events — nor did it have an obligation to know — the burden of responsibility to supervise the relationship between the teacher and student fell on the parent, and that the parent’s lack of supervision may have contributed to the alleged abuse.

 

Be proactive

 

Whether a child is under the supervision of the school, either during the school day or on school-sponsored events, or a child is under the supervision of a parent at other times, the important thing is that the adult “in charge” should keep a watchful eye to protect children from harm.

 

Perhaps the parents of the children from disadvantaged homes were not able to supervise their children when Sandusky went on trips. Perhaps, because Sandusky was a trusted coach, the parents felt so comfortable with him that they let their guard down and placed their children in his care — with disastrous results.

 

Schools: Take steps to protect students from harm and to minimize the school’s liability. Develop policies and train staff and students about sexual harassment and abuse. Make sure that both staff and students know how to report anything they think may be questionable.

 

Parents: Be vigilant. If a teacher contacts you about taking your child on a trip or volunteering to tutor your child, call the school. Let the school know about it and to ask if the school has a policy to deal with this. Just because a person is a coach, counselor, or teacher, don’t expect that the school will oversee that person when he or she is with your child. That’s your job as a parent.