February 23, 2018

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

school sexual abuseStandard of care is a general expression of what constitutes care in professions such as medicine, nursing, education, or child care administration. In schools and other agencies responsible for the care and supervision of children, the professional standard of care is the ethical or legal responsibility of a professional to exercise the level of care, diligence, and skill that other professionals in the same discipline would apply in the same or similar circumstances. This, coupled with statutory requirements and case law, defines the care that an educational professional is responsible for providing to children which includes protection from child sexual abuse.

In the field of education administration and supervision, as in most professions, the standard of care changes over time. The standard regarding what constitutes sexual harassment and child sexual abuse has evolved over decades. At times, our firm is asked to review a case that took place a couple of decades ago or even longer. When addressing the question of whether a school or other child-related agency met the professional standard of care, we must determine what the accepted standard and practice was at that time of the alleged child sexual abuse or other harmful incident.

 

Evolution of the Standard of Care Regarding Sexual Harassment and Child Sexual Abuse

The current standard of care requires that a public or private school has clear policies prohibiting sexual harassment, that such a policy identifies a trained person to be notified with a complaint, and that it outlines and documents the investigative process and the results of the investigation. Before Title IX became law in 1972 and the Office of Civil Rights published declarative information to school administrators, standards of care varied. If an incident of sexual harassment or abuse occurred in 1968, the standards articulated in Title IX were not applicable as a matter of law. However, ethical and other community standards, as well as local board of education and agency policies and practices, may constitute the standard by which the behavior of professionals at that time can be judged.

The earliest standards defining the rights of children were reflected in the Declaration of the Rights of the Child, adopted by the United Nations General Assembly in 1959. This policy statement stressed 10 principles affirming the right of children to receive special protection, to be given opportunities and facilities that enable them to develop in a healthy and normal manner, to receive an education, and to be protected against neglect, cruelty, and exploitation, including child sexual abuse. This general edict became more specific as individual countries began to develop legislation regarding the care and protection of children and as case law began to define neglect, cruelty, and exploitation — including sexual exploitation and child sexual abuse.

Over the past 20 years, our society has become more aware of the problem of children being sexually harassed and abused by adults representing religious and educational organizations. Cases such as Franklin v. Gwinnett County Public Schools in 1992 and Davis v. Monroe County Board of Education in 1996 defined sexual harassment and identified how a school’s complacency created an abusive environment depriving a student of educational benefits.  The Supreme Court ruled in the Franklin matter that monetary damages could be awarded to individual victims of sexual harassment under Title IX and a school district could be held financially liable for a coach’s predatory behavior toward a student athlete.  In the Davis matter, the Supreme Court decision helped to clarify the definition of sexual harassment of one student toward another and further clarified the professional standard required of schools. The court held that a private Title IX damages action may lie against a school board in cases of student-on-student harassment — but only when the school has actual knowledge of sexual harassment that is so severe, pervasive, and objectively offensive that it effectively deprives the student of access to education and was deliberately indifferent to this activity.

Another Supreme Court case that further established the professional standard of care was Gebser v. Lago Vista Independent School District, a case that addressed the issue of teachers who engage in sexual relationships with students. In this case, the Supreme Court determined that school districts are not liable under Title IX for teacher–student sexual harassment unless a responsible employee actually knew of the abuse and had the power to end it but failed to do so. These cases, along with standards from the Office of Civil Rights of the Department of Education in the form of “Dear Colleague” letters, contributed to the evolution of standards.

Though educational institutions, including K-12 schools and university level institutions, became subject to Title IX regulations in 1972, it was not until Franklin, Gebser and Davis were decided in 1992, 1998 and 1999, respectively, that the Supreme Court would define how schools can be held accountable under Title IX for sexual harassment. For allegations that occurred within the intervening quarter century, it can be challenging to identify and define the professional standard of care. However, there are other statutes, such as state child abuse-and-neglect laws and board of education policies written within that time span, that can help to identify the professional standard of care. For example, California enacted its first child-abuse reporting law in 1963. Before then, there was no legislation that defined the professional standard of care, such as mandatory reporting of suspected child abuse and neglect.  At that time, mandated reporters were subject to liability for making reports of abuse that turned out to be unfounded, and this thwarted reporting until the law was revised in 1980, when failure to report child abuse was criminalized and mandated reporters were given immunity for making reports. The California example has become the standard around the country. This is an example of how important it is to be aware of the prevailing professional standard when addressing the circumstances of a situation. Before the change in the California law, if a teacher had suspicion that a child was being abused, that person may not have reported it out of fear of reprisal. It doesn’t make that right, but when looking at the failure to act on the part of a teacher, one must take into consideration the laws and standards at the time that often set the moral compass.

A prohibition of inappropriate sexual behavior was not mentioned decades ago in documents of the National School Boards Association, the American Association of School Administrators, or other recognized standard-setting organizations. Without a specific standard against which to compare what the administration of a school or agency did or failed to do, a plaintiff may have a more difficult time proving a breach of the standard. On the other hand, when there is statute, regulation, or policy identified within a specific timeframe and the allegation of abuse falls within an era in which these standards were acceptable in the field, then as an expert witness I am able to use those as benchmarks. When standards are in place, the plaintiff will have a better likelihood of successfully arguing that the standard was breached.

 

Case examples: Determining Standard of Care in Past Child Sexual Abuse or Harassment

When an attorney engages our firm to render an expert opinion about whether a school or other child supervisory agency in the United States or Canada may be liable for an alleged incident in the past, the complexities inherent in changing standards — such as the example of California law — require us to research and identify the standard of care at a specific time or period to render an opinion as to whether the school or agency met that standard.

For example, one of our case reviews involved alleged ongoing sexual harassment and child sexual abuse by a teacher between 1982 and 1989. A former elementary school student alleged that his teacher sexually abused him over that period while providing tutoring services at the student’s home. My review of the professional standard of care at that time revealed that there was no standard, statute or regulation, or board of education policy that required the school to develop a policy regarding sexual harassment of students by employees or to provide training to employees regarding sexual harassment. Additionally, there was no board of education policy requiring the school to develop standards regarding the provision of tutoring. During this timeframe, the professional standard of care did not compel the school to monitor outside teacher–student relationships, including tutoring relationships that parents arranged for and approved. In comparing today’s standard with that in the 1980s, one finds that because of the development of laws such as Title IX and the understanding that children are targeted by some teachers who sexually harass and abuse them, the standard of care is very different. Nowadays, the professional standard of care requires that schools provide employees with training on detection and prevention of sexual harassment, child sexual abuse and behaviors and ethical boundaries that cross the line of a typical teacher–student relationship. The opinion reached, following a review of testimony and documents, was that the school did not breach the professional standard of care at the time because none clearly existed.

Another case illustrates the challenges that exist when attempting to identify the professional standard of care over a period of time that might extend decades. This case was based on an allegation of physical, emotional, and sexual abuse of students with disabilities in a residential school. The timeframe of the allegations of abuse spanned from 1951 through 2012. The state Department of Education was responsible for the supervision of educational programs in this publicly supported and funded school. It was also in charge of inspection, the improvement of instruction, and the protection of disabled students. As part of the review of this case to render an opinion as to whether the government, the Department of Education, and the school collectively and independently met the applicable standard of professional care within this timeframe, we began by reviewing legislation from the early 1900s that placed the education of disabled students, including the plaintiffs in the lawsuit, under the authority of the government. The claims in this case, specific to the school, spanned six decades, during which time standards of care changed from decade to decade. The challenge of this review was to identify each standard on a timeline from 1950s for each decade through the present and determine whether the involved entities met the standard for the protection of students with disabilities who were under the control, care, and supervision of the government.

In some cases, including this one, basic parental standards are considered when no other standards exist. This is done under the theory of in loco parentis and the school’s basic responsibility to protect students and act as any reasonable parent would, based on the circumstances and known information. For example, if the dorm supervisors in 1950s were aware that male students were entering rooms of female students at night and female students complained of inappropriate behavior or sexual conduct, the school had a responsibility to ensure that students are appropriately supervised to prevent such situations, as any reasonable parent at that time would do.

When reviewing such cases, to render an opinion as to whether a school or agency acted appropriately and reasonably and met the professional standard of care, we first determine what the accepted standard was during the relevant period of the allegation of child sexual abuse or other harmful incident. Next, we consider the standards as defined by the school or agency, based on the existing policies and procedures at that time. By applying the education, training, and professional experience of an education administrator to the review of the issues of a case and the relevant standards at the time, an opinion is rendered as to whether the school or agency met the professional standard of care within the field of education administration and supervision.

Title IX and Sexual Violence at Colleges and Universities

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

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

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

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

 

Title IX Policies Are Only Effective if Implemented

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

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

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

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

 

Title IX Compliance Checklist for Colleges, Universities and Public Schools

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

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

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

 

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

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

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

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

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

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

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

Campus Sexual Violence

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

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

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

Title IX Standards and Campus Sexual Assault Liability

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

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

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

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

Implementation of Professional Standards

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

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

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

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

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

Inadequate Due Process in Cases of Campus Sexual Violence

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

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

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

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

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

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

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

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

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

Summary

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

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

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