April 23, 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.

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.


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.

School Liability and High School Hazing

High School Hazing

Schools can be liable for high school hazing

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

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

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


High School Hazing is Harassment and Schools Can Be Liable

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

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


Hazing Leads to Hostile School Environment

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

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

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

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


Hazing and Title IX

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

Title IX: School Sexual Harassment and Child Abuse Liability

bigstock-Child-abuse-24665465Wherever there are public and private schools and organizations that provide activities for children, there are stories about school sexual harassment and abuse. In West Virginia, a fifth-grade teacher started a “sex club” with some of her students. She brought them to her home to “teach” them, by demonstration, about sex. In a Vermont school for deaf children, the night supervisor made several visits to a student’s room to engage the girl in sex. In a Florida private preschool program, two 5-year-olds were alone in a playground slide tunnel and one was accused of sexually molesting the other. In a New Jersey school, a student was raped in the stairwell while classes were in session. A Philadelphia jury convicted a priest and teacher in January for the rape of a 10-year-old altar boy, in a case that also resulted in a monsignor’s incarceration for assigning known pedophile priests to unsuspecting parishes.

Although these cases may seem extreme, they are real. Unfortunately, they are not isolated incidents. For the majority of children, sexual harassment and abuse is an everyday part of life. The American Association of University Women Educational Foundation’s survey on sexual harassment found that 4 of every 5 students — boys and girls — in grades 8 through 11 had experienced some form of sexual harassment at school. According to the report, this harassment ranges from rumors being spread about students to children being touched in a sexual way.

Title IX

Any school or organization that accepts federal funds has a vested interest in preventing sexual harassment. Gwinnett v. Franklin[1] seized the attention of attorneys representing schools and other organizations and those representing children alleging sexual harassment or abuse. In this 1992 case, the U.S. Supreme Court unanimously held that monetary damages can be awarded for sexual harassment complaints brought under Title IX of the Education Amendments of 1972.[2]

Title IX prohibits discrimination on the basis of sex in education programs and activities. Under the law, such discrimination can include sexual harassment, abuse, or violence, ranging from sexual coercion and battery up to sexual assault and rape. Compliance with title IX s a requirement for any public and private elementary, secondary school, school district, or college or university that receives federal funds.

What attorneys need to know

If you are a defense or plaintiff attorney in a case involving sexual harassment or abuse, you need to assess the strength of your case. The following information should help you do this in cases against schools and other agencies that accept federal funding.

A school or other agency has a duty to respond promptly to allegations of Title IX violations. If the school or agency has actual knowledge about sexual harassment, abuse, or violence that creates a hostile environment — or if it reasonably should know about it — then the law requires the school to put an immediate end to the behavior, take steps to prevent its recurrence, and address its effects on students and faculty. The same is true even if a child or parent chooses not to pursue legal action against the school; if the school is aware of a potential Title IX violation, it is obligated to address it. A criminal investigation into allegations of sexual abuse or harassment does not release the school from this responsibility.

A school must have procedures in place intended to prevent sexual harassment or violence. Under the law, each school is required to publish a policy barring sex discrimination in its education programs and activities. The policy must be widely distributed and available on demand. The policy also should lay out a path for dispute resolution, directing Title IX inquiries to the school’s Title IX coordinator or to the federal Department of Education’s Office of Civil Rights.

Every school must have a Title IX coordinator who is responsible for compliance with Title IX. The coordinator oversees the investigation of allegations of sexual abuse or harassment and is responsible for addressing any patterns or systemic problems that arise during the review of such complaints. Schools are required to notify students and employees who the Title IX coordinator is and how to contact this individual.

If any of the above elements are missing — or if the school failed to implement its duty to respond swiftly and effectively to a complaint — a strong case exists for the plaintiff. A simple example would be if a student told a school administrator he felt uncomfortable when a teacher rubbed his shoulders and the administrator listened but didn’t investigate the complaint and the behavior continued.

If these elements were in place at the time of the alleged harassment or abuse, and if it can be demonstrated that the school followed through immediately when a complaint was filed, then there is a strong case for the defendant.

Burden of proof in Title IX cases

If you are either an attorney considering a lawsuit against a school or an attorney responding to a lawsuit, the concept of burden of proof should be examined. The burden of proof applies to whether the school violated Title IX by behaving inappropriately — not whether students or staff engaged in sexual harassment. Students cannot violate Title IX; only schools can be sued under Title IX. Moreover, students are not agents of the school, so their actions don’t represent the actions of the school.

The mere existence of student harassment is not enough to demonstrate liability. The school’s actions in response to a complaint is key. As an example, if a student tells an administrator that a teacher fondled him, the administrator has a duty to investigate and take appropriate action. If it can be shown that there was such a report but the school administration failed to act reasonably and appropriately and the harassment continued or worsened, the school may be culpable. Title IX does not make a school responsible for students’ actions, but rather for its own actions once the school has notice of alleged sexual harassment. Inaction may constitute discrimination in violation of Title IX.

Because a school or institution itself, not the harasser, may be culpable of discrimination, federal courts have held that there is no violation of civil rights laws if harassment occurs, as long as the school or institution investigates an allegation in good faith. This is true even if the school or institution ultimately refuses to discipline a harasser on the basis of a reasonable belief that the accused is innocent.

In cases such as these, the presence of an expert witness is often critical to a determination of liability. The expert witness reviews the case and renders an opinion as to whether a school or organization acted appropriately and reasonably under the circumstances, and whether there was a breach of professional standard of care that was a proximate cause for the sexual harassment or abuse.


The unfortunate reality is that children are sexually harassed and abused by other students and staff in schools and other organizations that have a responsibility to protect them from such harm. The fact that this occurs, however, does not make an entity liable for this behavior unless it knows about it (or has reason to know) and turns a blind eye to it. The question to ask in such cases is: Did the school or agency act reasonably under the circumstances of what was known or should have been known?

[1] Franklin v. Gwinnet Co. Public Schools, 112 S.Ct. 1028 (1992).

[2] 20 U.S.C. Sec. 1681.

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.

Education Expert on Verdicts of Jerry Sandusky and Philadelphia Monsignor William Lynn

I have no doubt that schools around the country are anxiously reviewing their student sexual harassment policies before school starts again after the summer. Two recent major verdicts — one that found Jerry Sandusky, the football coach at Penn State University, guilty of 45 counts of sexual abuse, and another that found Philadelphia Archdiocese Monsignor William Lynn guilty of failure to protect children from a sexual predator — have raised issues about the moral and legal responsibility to report child sexual abuse in an effort to protect kids. Of course, I don’t believe anyone would doubt the moral imperative and legal duty to protect kids from predators. Or am I wrong?

In both these cases, there was knowledge or convincing evidence that a man or men (one, a trusted coach; others, trusted priests) responsible for the safety of children physically and sexually abused them.

In the Sandusky situation, Penn State football coach Joe Paterno didn’t report the travesty to law enforcement when an assistant coach came to him and said he saw Sandusky having sex with a player in the shower. We now know that the administration of Penn State had knowledge of Sandusky’s crime but didn’t report it. The administration decided to deal with Sandusky directly and thought the abuse would stop. It didn’t, and many boys continued to be harmed.

Lynn knew that priests had sexually abused boys but didn’t report it. Again, a person in authority who had the power to stop the abuse faltered and, perhaps in an effort to protect an institution, chose to risk that young men would be sexually abused and scarred for life. Where is the moral imperative there? Protecting an institution instead of a person — what have we come to? Why do people think it’s OK to turn a blind eye and ignore such incidents of abuse? I really don’t know, and I can’t figure that one out.

When institutions are confronted with evidence of wrongdoing, they tend to circle the wagons. The reputation of the institution becomes more important than finding the truth or helping the victims. We’ve seen this phenomenon in educational, religious, not-for-profit, for-profit, and government organizations too often.

What can schools learn from these verdicts? And what should they do to protect kids?

Be watchful and speak up

Everybody in the school community — teachers, custodians, cafeteria cashiers, school bus drivers, principals — is responsible for the safety of all the students. The school has a duty to protect its students from harm, including the harm of sexual abuse. Staffs must be alert to any reasonable suspicion or actual observation of any sexual abuse taking place. If the custodian observes the physical education teacher kissing and fondling a student outside the door of the athletic office, does that person have a duty and professional responsibility to report what he observed?

Yes! That must be reported to the appropriate child protective agency in the state and law enforcement.

Many schools are under the false assumption that if something is observed or suspected that the administrator should know about it first and then the administrator will make a decision about the information. That’s exactly what went wrong in the Sandusky and Lynn cases. The administrations knew what was taking place, but both made a decision to protect the institution rather than the kids. According to testimony, people who had suspicions about Sandusky said nothing, didn’t follow up, or convinced themselves that what they were seeing was harmless.

A 1998 investigation into Sandusky’s behavior generated no charges. According to testimony, a janitor told his colleagues in 2000 that he’d just seen Sandusky assault a boy in a shower. A few months later, an assistant coach, Mike McQueary, saw another shower attack. Despite all this, Sandusky continued to have access to children for years. Last November, he was finally arrested. The prosecution described him as a serial predator.

Know whom to report to

If a staff member sees or suspects that an inappropriate relationship has taken place between a teacher and student, the staff member needs to know how to report it and to whom. This is where policy and procedure are most important. The policy needs to be specific about how teachers and others in a school should respond to what they see.

Without a clear and adequately communicated policy, some staff members might say, “Oh well, I saw something but I didn’t know what to do.” A good policy is only as good as the understanding of the staff.

Create a culture of protection

Even if a policy against sexual abuse isn’t perfect, the most important thing is to create a culture in which kids are always protected. Nothing should go unreported to the appropriate administrator or law enforcement. Sweeping the dirt under the rug only causes the problem to fester and, as we saw from the Sandusky and Lynn verdicts, harms more than just the victims. We now know that many people and important institutions failed to keep Sandusky from preying on boys, despite direct eyewitness evidence that he was a pedophile.

Development of a school culture that doesn’t tolerate abuse of kids, sexual, verbal or physical, is paramount. Schools need to train their staffs continually about laws regarding the reporting of child abuse and neglect, and about everyone’s responsibility to be watchful and to care enough to act when a child’s safety is at risk.

Hopefully, these verdicts are another wake-up call to schools that they need to be serious about protecting kids. Schools should start the new year by reviewing these cases with their staffs and communicating firm expectations: All kids are to be protected, and any suspicion of harm to a student must be followed up by reporting to a designated person. The message must be, “Stop hurting kids. You can all help by being watchful.”