Supervise, Investigate, Train

Supervise, Investigate, Train, Child Sexual Abuse

By Mary Jo McGrath, Attorney at Law
Founder, McGrath Systems, Inc.

School administrator liability for sexual abuse by employees is a rapidly developing area of the law. In recent cases, administrators have been held personally liable. Courts and administrative agencies are trying different standards for conduct as the debate continues. Until the law is settled, educators and their lawyers will have to deal with a degree of uncertainty about their legal duties to students for sexual misconduct by school employees.

STATE LAW LIABILITY
Under the legal doctrine of respondeat superior, a public or private school is responsible for unlawful acts of its employees that occur in the “course and scope of employment” but not for actions of employees taken for their own purposes. Sexual abuse of students has generally been held to be outside the “course and scope” of employment, even when committed on school grounds or while engaged in school-related activities.
However, administrators may be legally responsible for their own action or inaction in these cases. The courts generally find that negligent administration is within the “course and scope” of administrators’ employment, and hold both the school district and the administrator liable.

State courts often award money damages in cases involving various administrators’ duties, such as:

A. Failure to Supervise. An administrator owes a legal duty to the students to provide adequate supervision of school employees. This includes appropriate observation, investigation, correction of improper conduct, adequate documentation and discipline. The administrator who supervises negligently risks liability both personally and for the school district.

B. Failure to Investigate. Failure to investigate or a perfunctory or inadequate investigation of rumors, reports or complaints of sexual misconduct or of suspicious conduct by a school employee may constitute negligence by an administrator.

C. Failure to Train. Supervisors have a duty to adopt and enforce appropriate policies and to train teachers, guidance counselors, school nurses, and administrators to respond adequately to signs, reports and complaints of sexual misconduct in order to protect students.

D. Failure to Hire Carefully. Failure to use reasonable care in hiring practices, including inquiry and investigation of previous employment may be negligent administration if it allows someone with a history of molesting, abuse or sex offenses to harm students.

E. Failure to Warn Others. In many states, legislation requires that school administrators report various types of conduct to state credentialing authorities. “Truth in recommendations” is also required by law in a few states, such as California and Florida. Failure to comply with these requirements in your state may be considered negligence.

F. Failure to Report Child Sexual Abuse. State law often requires that school officials report evidence of child abuse to child welfare officials or to law enforcement. Failure to report may result in legal liability.

FEDERAL CONSTITUTIONAL VIOLATIONS
The Civil Rights Act of 1871 (42 U.S.C. § 1983) holds a person acting on behalf of a public school district liable for violation of any “rights, privileges or immunities” secured by the federal constitution or laws. The courts have held that a student has a federal constitutional right to bodily integrity and that school administrators owe a duty to students to prevent sexual abuse by school employees.
In a recent case, the United States Court of Appeals held that a principal could be personally liable when he ignored a series of rumors and reports about a teacher who was having sexual intercourse with a student. The court said that supervisors are liable for “deliberate indifference” to constitutional violations by subordinates. (Doe v. Taylor Independent School District.) According to the court a supervisory school employee can be held personally liable for a subordinate’s violation of a student’s constitutional right to bodily integrity in physical sexual abuse cases if:

  1. The administrator learned of facts or a pattern of inappropriate sexual behavior by a subordinate pointing plainly toward the conclusion that the subordinate was abusing the student; and
  2. The administrator demonstrated “deliberate indifference” toward the constitutional rights of the student by failing to take action that was obviously necessary to prevent or stop the abuse; and
  3. The failure caused a constitutional injury to the student.

Sexual abuse of students may also violate federal or state laws prohibiting discrimination on the basis of sex. The United States Supreme Court recently decided that money damages may be recovered under Title IX of the Education Amendments of 1972, which prohibit sex discrimination in educational institutions that receive federal funding. Administrators and their districts may also be liable under similar state laws.

We believe that the best policy for school districts is to treat sexual abuse as a serious matter entitled to high priority. Prompt, thorough investigation followed by appropriate, effective remedial action is your best protection.

(Editor’s Note: This is a reprint of an article that appears in the October, 1994 issue of AASA’s School Administrator. The issue focuses on sexual abuse allegations against school employees and includes another article by Mary Jo “The Psychodynamics of School Sexual Abuse Investigations: an Attorney’s Inside Look”. To order a copy of the issue call, AASA’S Member/ Customer Information Center at (703) 875-0748.)

FALL 1994

“Editors’ note: This article is general in nature and is not intended to replace professional, legal advice.”

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