July 22, 2017

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.

Child Injury and Daycare Negligence: Liability Expert’s Analysis

Daycare Negligence Expert

Daycare accidents and injuries are preventable with proper supervision, regular inspections and adequate training.

Millions of children participate in programs operated by daycare centers, nursery schools, and camps across the United States and Canada. The most important aspect of childcare is the safety and supervision of children. When a teacher, recreation leader, camp counselor, or other supervisor is engaged in activities involving young children, there is a duty to protect the child from physical harm, sexual abuse, and other forms of personal injury. A breach of duty to protect the health, safety, and welfare of a child that leads to injury may result in daycare negligence lawsuits.

As an example, just before naptime a 4-year-old in a nursery school found a small button-shaped battery. Before dozing off on the cot, the child put the battery in his nose. A few days later, his mother noticed a discharge from his nose and thought he had a cold. After the boy complained of facial pain, she took him to a doctor. The battery was discovered lodged in his nose, leaking toxic chemicals. The battery caused serious burns and injuries, requiring extensive medical care.

Child Supervision and Daycare Negligence

Parents who leave children in the care of professionals trust them to make the decisions necessary to protect their children. This is reasonable, and every parent expects their children to be as healthy when they pick them up at the end of the day as when they left them there in the morning. Daycare programs, nursery schools, and camps, then, must exercise the highest degree of protection with children under their supervision. This includes taking adequate precautions to prevent all reasonable dangers; failure to do so can leave these programs liable for injuries to children in their care — and thousands of dollars in settlement or litigation costs.

These programs, however, are not “insurers of children’s safety.” The law requires those in charge to follow a standard of care that is appropriate for the age of the children under supervision and the particular circumstances. This duty does not require individual supervision of each child at all times. If a child sustains a serious injury while under the care of a daycare, nursery school, or camp provider, courts typically apply a duty/risk analysis to determine whether the provider met the applicable standard of care. This analysis takes into consideration the age of the child and the activity in which an injury was sustained, and then considers the program’s duty of supervision against the risk of injury. The standard of care forms the basis of reasonable actions for maintaining the health, safety, and welfare of children engaged in a specific activity.

While states and courts vary on examples of reasonable dangers in daycare centers, nurseries, and camps, the general rule is: Identify risks associated with operating a program and supervising children, and correct for those risks. This includes the risk that toys may become unsafe with use or neglect. Staff should also check for such dangers as electrical hazards, sharp objects, and unprotected holes in the playground surface. It is important to note that reasonable dangers are those that the staff can control. A facility inspection will reveal many of these potential dangers. In addition to physical risks, staff supervision should be a consideration. Does the facility provide the required ratio of appropriately trained supervisors to children? Compliance with this standard can reduce the potential for liability and claims of negligent supervision of students and staff.

In addition, the question of whether injury to a child was foreseeable is often addressed in litigation and argued by plaintiff and defendant attorneys in such cases. For example, if the director of a daycare center conducts a safety inspection and discovers the slide on the playground is not securely fastened to the ground, causing it to sway when children use it, is foreseeable by any reasonable person that a child could be injured when playing on it. Once the program director knows of a hazard, that person has a duty to correct the hazard and to guard the children from injury until it is corrected. In this example, a daycare administrator knew of the defect and reported it to the maintenance department but failed to warn of the danger by restricting children from using the slide and did not follow up to ensure that the maintenance department repaired the slide in a timely manner. The following week, when three children climbed the steps of the slide, it fell over, seriously injuring one child. This injury was foreseeable and the daycare center could not defend its inaction, which was judged to be a proximate cause of injury to the child.

Courts are less likely to hold daycare centers, nursery schools, and camps liable for injuries resulting from normal childhood play. For example, if a nursery school maintains the correct level of supervision and two children are running while engaged in play typical for their age, collide, and one is injured, the facility is unlikely to be held liable. This is considered typical child play that presents possible physical injury, a normal part of childhood interaction.

A child finding a loose battery on the floor of a nursery school and inserting it in his nose is not typical child play. When a facility provides equipment and supplies, including electronic books and toys, the agency has a duty to reasonably assure that children will use these items in a way that does not present a risk of harm. Program administrators have a duty to check consumer warnings and recalls on equipment. Following manufacturer recommendations and training staff on appropriate use of equipment is insurance against misuse that might cause injury to a child. A facility can reasonably protect a child from harm by regularly inspecting its equipment and placing any unsafe item out of commission. In this case, there was no inspection of the battery-operated electronic books, even though a staff member was aware that the battery compartments were compromised on several books. Lack of attention to this detail cost the daycare center substantial litigation costs and a large settlement.

Daycare Accidents and Negligent Supervision and Training of Staff

Other types of accidents can be prevented and daycare negligence claims avoided with proper staff training and with appropriately developed and implemented policies and procedures. For example, children in an afterschool daycare program in a school cafeteria were running when one ran into a 300-pound, fold-up cafeteria table left in the middle of the room. The table fell over, crushing the head of another student. In this situation, the person in charge failed to make even a cursory assessment of any dangerous conditions present. Any reasonable person would agree that injury is foreseeable if there is a non-stationary fold-up table in the middle of a room where children are running. This example illustrates the importance of staff training, policies, and procedures and regular inspections for hazards to ensure children’s safety. The procedure of the school custodian was clearly outlined in her job description: After lunch, fold up the tables, move them to the wall, and secure them in their proper location. The school had an adequate policy and the procedure was written.

Questions remained, however: Was the custodian adequately trained? Also, was the person appropriately supervised to ensure that she was meeting the requirements of her job description? The custodian saw or should have seen the table in the middle of the room. She should have moved it and secured it to the wall but didn’t. Additionally, the teacher saw the table in the play area but did not warn the students — and even encouraged them to play around an obviously dangerous item that was not supposed to be there. The custodian and the teacher both saw the table but deliberately ignored the foreseeability of student injury.

Sometimes, accidents and child injury are unavoidable even when daycare centers, summer camps, and schools follow all of the rules. For example, a child in a summer preschool program was accidentally struck in the eye with a stick, causing serious permanent injury, despite the presence of an appropriate number of counselors who were trained and carefully supervising the children. Because this center acted reasonably and appropriately with regard to staff hiring, training, and child supervision, it had a strong defense against liability.

Beyond accidents and environmental hazards, claims against a staff member of sexual or physical abuse or neglect, student-on-student sexual abuse, and even wrongful death are not always the fault of the program. A strong defense can be made when the agency practices appropriate supervisory techniques, develops and implements good policies and procedures, trains and supervises staff, and follows up on any foreseeable hazards and safety concerns. These steps include regular background checks for employees and volunteers, making sure that facilities are properly secured so that children can’t leave the premises, child–staff ratios, keeping up with state licensing requirements, training staff on how to report child abuse and neglect, and inviting outside agencies and professionals to conduct trainings and safety-and-risk assessments. Various online resources can provide daycare and camp administrators in the United States with additional information on local, state or national standards and guidance on health and safety requirements. The Canadian Child Care Federation also provides numerous guidelines and resources for childcare providers.

Conclusion

The standard for daycare centers, nursery schools, and camps is higher than one would expect of parents who supervise children at home or at a playground, and courts have continuously upheld supervision and safety as the primary intent of such facilities. The standard of care is measured by the judgment, knowledge, experience, perception of risk, and skill that a person in a professional capacity would have, and this standard must be comparable to best professional practices. Did the nursery school administration in the battery example take reasonable precautions to prevent injury? Did the administration of the day camp take reasonable precautions so that a child would not be injured with a stick? Although it is reasonable for parents to demand a safe environment for their children while at a nursery school, daycare center, or camp, courts recognize that it is impossible for caretakers to prevent every possible injury. On the other hand, those responsible for the safety of children must demonstrate that they acted appropriately, reasonably, and within the professional standard of care if they are to avoid liability and costly lawsuits.

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.

____________________________________________________

*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).

Sexual Abuse Expert on the Boy Scout ‘Perversion List’: What Schools and Parents Can Learn

Boy Scout Sexual Abuse

Authorities justified shielding scoutmasters and others accused of molesting children as “necessary to protect the good name and good works of scouting.”

As an education expert witness who has testified on numerous of sexual abuse cases in schools, I was not shocked by the Associated Press report of the 14,000-page Boy Scout “perversion list” released on October 18 by the Oregon Supreme Court. The AP reported that authorities justified shielding scoutmasters and others accused of molesting children as “necessary to protect the good name and good works of scouting.” Their attitude allowed sexual predators to go free, the AP reported, while victims suffered in silence.

In some of the cases I have worked on, I’ve seen that school officials sometimes turn a blind eye to situations that might lead to teachers and students developing inappropriate sexual relationships. And when a discovery comes to light, it’s not unusual for schools to act in the same way as the Boy Scouts of America did — to protect the good name of the school. We’ve seen this demonstrated at Penn State, where the administration acted behind closed doors to cover up known abuse of kids.

In about 30 percent of the Boy Scout cases, police were not notified about reports of abuse that came from victims themselves or parents. Frankly, I am surprised that this figure is so low. Every state has passed a law requiring reporting of suspicion of child abuse since the federal Child Abuse Prevention and Treatment Act was enacted in 1974. But the Boy Scouts didn’t implement mandatory reporting until 2010. And even so, too many suspicions went unreported because the Boy Scouts attempted to protect its organization — demonstrating little concern for the victims.

Rush Russell, executive director of Prevent Child Abuse New Jersey, said in a recent Star-Ledger report that child abuse is called the “silent epidemic.” Because people are uncomfortable that these things go on in their families, schools, and communities, he said, the result is a collective denial. But recent attention to sex abuse cases in schools and organizations has, in my opinion, heightened awareness of the problem in a positive way. Teachers, coaches, counselors, and scout leaders must interact with children, and it’s the responsibility of those supervising these individuals to watch for anything that would cause a person to have a reasonable concern that a child is being abused. If that person has any suspicion — or is aware of any suspicion — of inappropriate behavior, then that person must report it to the appropriate child protective agency and to local law enforcement. Sometimes this puts the supervisor in an uncomfortable position, but that is the law.

The problem is that too many adults don’t stand up for kids, would rather not get involved, may not know whom to call, or simply does not know they have a responsibility to report (although any reasonable person knows it’s wrong for an adult to abuse a child). Staying out of it keeps them safe from having to report and possibly having to give a statement or testify. For some, turning a blind eye is more comfortable than taking a chance that they might need to go further to protect kids. This attitude keeps the child in danger and might even enable the predator to continue the abuse.

In many cases for which Education Management Consulting, LLC, reviews and for which I provide expert witness testimony, I discover that there was sufficient information that could have alerted an adult to the possibility that a child was being mistreated. Some of these observations were reported to another person in a school or, occasionally, to the building administrator. This is the wrong thing to do. Why?

The law requires that a person who has reasonable suspicion that a child is being abused must report to the appropriate office of child protective services — not to the school administrator first. In some cases where I have rendered an opinion that the school breached the professional standard of care, a well-meaning but certainly ill-informed teacher who observed or had a reasonable suspicion of abuse reported it to a counselor, an assistant principal, or the building principal, who in turn exercised a judgment as to whether to take the concern further. When a matter as serious as an allegation of sex abuse stops along the chain of command, it is very dangerous. It opens the school to charges of negligence or even deliberate indifference to the rights and safety of students. This is never good for the school or the student who is being abused.

Grooming process

We hear a lot about the “grooming process” of kids by adults they trust. As I told the Star-Ledger’s Mark Di Ionno, when kids are isolated, the secret activity starts. The coach who says, “I’ll give a student a ride to the game” may be a red flag for an inappropriate relationship if the child is emotionally needy and responds to the attention. Some of our cases have involved coaches who have won the affection and trust of a parent, visited the home for dinner, tutored the student, and then asked, “Is it okay to take Phil to the soccer game tonight?” And the parent thinks, “I know this is a coach and I trust her. What do I have to worry about?”

Trust me: Parents may have something to at least be aware of — if not worried about — when a relationship progresses to this point. Most parents have the best interests of their child in mind, but they also, sometimes blindly, trust the adult. Think carefully. Why does this adult want to take your child someplace? Why is the adult spending so much time with your child and no others? Does this adult have a “normal” relationship with other adults?

Take the case of a student who was missing from class on numerous occasions. In this case, for which I was the expert witness, the school did not have a rule prohibiting students and staff from being alone together. This student was leaving the classroom under a false pretense to meet a teacher and engage in sexual activity in a closet of the school auditorium. The classroom teacher had a duty to know where this student was at all times, but she unreasonably accepted the student’s explanation that the predator teacher needed her to help him with a project. The classroom teacher never talked with the other teacher after school to ask if the girl’s reason for missing class was truthful, nor did she call the teacher on the classroom phone. No one went to see where the student was, and no one checked the predator-teacher’s schedule. The behaviors of the student, classroom teacher, and the predator-teacher allowed the circumstances for sexual abuse to occur.

Can we always see what might happen or prevent an inappropriate relationship? No. But all of us — teachers, coaches, administrators, and parents — must be aware that these things can and do happen on a scale that might not be realized.

In another case I reviewed, the school administrator knew that a student left her assigned class to spend time alone and unsupervised in the classroom of another teacher during that teacher’s non-teaching time. The principal was concerned that the teacher was having students in her room at inappropriate times, and even met with her to address the issue. Still, it didn’t occur to the principal to follow through by supervising the students or the teacher, even after reprimanding the teacher for her behavior. That misstep allowed the behavior to continue.

Three months later, it was discovered that the teacher and the student were engaging in sexual behavior in the classroom. The girl’s parents sued the predator-teacher and the school for negligent supervision that, in their claim, led to their daughter being sexually abused. My analysis of this case led me to the opinion that the school breached the professional standard of care by failing to appropriately supervise the student and the teacher.

Advice for schools and agencies

Schools and agencies that supervise children and that are supposed to supervise adults who interact with children need to be diligent in their observations of relationships between children and adults. They need to be persistent in teaching children about boundaries between them and the adults they interact with — the teacher, coach, counselor, or scoutmaster. Tell kids what inappropriate behavior is. Tell them whom they should tell when something inappropriate occurs. Don’t take for granted that children know where boundaries rest. They need to be told.

Similarly, don’t take it for granted that adults know how to respond when a child initiates a relationship that might lead to inappropriate sexual behavior. They need to be told how to react to a child who is too forward and wants to tell her teacher all about her problems with her father. Set the standard and know how to respond.

Advice for parents

Does this mean that a parent should never allow his son to be with a trusted adult? No, but parents should ask questions and not simply accept that there’s no harm in a teacher asking if she can take a child to the night soccer game. Be aware of any situations between your child and a tutor at your home or a coach who comes over in the evening to talk with your child. Does any of this make you uncomfortable? Follow your instincts.

Teach your child the difference between appropriate and inappropriate behavior with adults. They need to be told. Don’t assume they know what unacceptable behavior is and whom they should tell. Create a level of trust where your child can tell you about anything that makes him feel uncomfortable.

Too many of our kids are physically and emotionally abused by the adults they and their parents trust. We all need to be educated and reminded about these things. Hopefully, by doing so, we will all help in some way to keep our kids safe.  If you are in need of assistance or advice from a sexual abuse expert please call Education Management Consulting at 609-397-8989.  We offer assistance to parents, schools and attorneys involved in sexual harassment/abuse litigation who are in need of expert witness services.