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Standards of Care

-School Related Sexual Harassment and Abuse Cases-

Sexual harassment is not a new phenomenon. Sadly, however, within the last decade, it has become a household term. School administrators have been on notice regarding sexual harassment since the 1950's. The topics of professionalism, propriety, and protecting oneself against sexually related incidents have been items of discussion and concern for the past 40 years on the part of all school employees. Prudent school administrators are constantly aware of situations that could become awkward and have a responsibility to alert school staff to those potentially damaging circumstances.

The universally accepted standard of care known for years in education circles is for staff members to avoid situations that have sexual implications, to avoid being alone with a student in a confined area without an adult witness, and to report any and all observed abusive behavior to local Human Services officials (a requirement of the law in most states).

The California Commission on Teacher Credentialling recently acknowledged that for the past five years 25 to 30 teachers have been convicted every year of sexual offenses involving minors. Obviously, this number only acknowledges convictions, which are difficult, at best, to obtain. Add to that the number of incidents that go unreported and multiply those numbers times 50 states, and it becomes vividly clear that molestation of students by school employees is neither unusual nor uncommon. On the other hand, fortunately, the percentage of teachers who molest students remains small.

A number of problems surround sexual molestation by teachers. Because such acts are not expected, when they are reported, school officials often are in a state of shock and disbelief. The accused employee often initially denies the charges. Sexual molesters also tend to be multiple offenders. Another problem associated with harassment is the failure of the abused to report abuse to an adult at school or to discuss it with their own family. Some students simply drop the class or avoid the instructor and never reveal the reason.

Criminal action certainly can be taken against a school employee who is involved in the sexual harassment of a student or other employee, no matter what level of abuse occurs. On the other hand, it is more difficult to determine whether the school district should be held responsible and liable for the sexually abusive conduct of one of its employees. The nature of the harassment and the position the employee holds in the school district are both important considerations. A greater level of responsibility and liability occurs on the part of the school system if the employee has broad supervisory responsibility over other employees. Even greater school system responsibility exists where supervisory personnel knew or should have known about the abusive conduct and failed to take immediate corrective action.

Since students and school district employees can recover monetary damages from school districts under provisions of Title IX of the Educational Amendments of 1972, plaintiffs need to ask many pertinent questions and obtain copies of all related school policies and personnel files when persuing sexual harassment cases. Sample questions might include the following:

• Does the school system have in place a sexual harassment policy? Request a copy.
• Is sexual harassment addressed in the Student or Staff Handbook? Request copies.
• Does the school system have a student and staff grievance policy or procedure? Request a copy.
• Does the school system inform students or staff wishing to file a complaint about the proper way to file and whether an opportunity exists to by-pass the person causing the problem?
• Did the school system inform students and staff that it does not tolerate sexual harassment?
• Did the school system take steps to educate and train students and staff regarding behaviors and incidents that could be construed as sexual harassment?
• Does the school system promptly investigate and document every complaint of sexual harassment?
• If an investigation was conducted, did the school system take prompt, thorough, and appropriate action throughout the investigation?
• Did the school system monitor implementation and effectiveness of any actions taken, and did it provide support for the victim(s)?
• Did the school system maintain total confidentiality during the investigation process?
• Prior to the report of this incident of sexual abuse, were there other previous reports or allegations of abuse on the part of this person or any other person on the staff?
• Are there school officials who were informed or knew about this person's alleged acts of sexual harassment prior to this incident being officially documented?
• Was this incident reported to law enforcement personnel? Request a copy of their report.
• If the accused person is an employee, request a copy of his or her personnel file--a public record.
• If the accused person is an employee, performance evaluations often are maintained at the building level as well as in the employee's personnel file. Request all copies.
• Did anyone witness the alleged acts of harassment? Record names of witnesses.
• Request information regarding all incidents of sexual harassment, of all types and degrees, that took place at the school during the term of the accused person's employment.
• Were there other reports of sexual harassment on the part of other staff members during the past two years?
• Who was the direct supervisor of the accused at the time the alleged harassment occurred?
• Are there other persons who will step forward indicating they, too, were abused, or who witnessed abuse by the accused?
• If the abuse is alleged to have happened off school premises, was the accused acting as an employee of the school at the time of the incident?
• Did the school system's Director of Personnel or EEOC Officer investigate the case in conjunction with the school system's legal counsel? Request a copy of the report.
• Was the incident reported to local Human Services officials (a requirement of the law in most states) to be investigated? Request a copy of the report.

These are but a few of the questions that need to be asked when representing a client who is the victim of sexual abuse. SchoolMatch® consultants will work with you to be sure to cover every aspect of the case related to school responsibility, administration, policy, and procedures.