legal insights
BY bode owoyele
Protecting students from school employee predatory behavior
ecently, reports of sexual misconduct, harassment and assault committed by powerful and influential players in show business, the corporate world and government have become rampant. Such reports from schools nationwide have become alarming, especially as they occur more and more between teachers and other school personnel and underage students. During this school year alone, there have been reports of such unlawful behavior in California, Oregon, Montana, Michigan, Wisconsin and Texas.
In an article published in the Washington Post on January 20, 2015, Terry Abbott, a former chief of staff to the U.S. Secretary of Education and now chairman of a communications firm which tracked news reports of sexual misconduct by educators for more than a year, confirmed this troubling trend. Abbott’s firm ascribed the increase in occurrences to the almost-universal access students have to social media, text messaging and other private and unsupervised modes of communication. School boards and administrators must be vigilant to keep students safe from the reprehensible and criminal behavior of a few bad apples among the teaching corps and other employees to which the students are entrusted. Reasons abound as to why a school board should take steps to protect students from these perpetrators, and the following are just a few.
Why school boards should act
Firstly, as the governing body for the school district, the school board’s foremost responsibility is to educate its students. That responsibility presupposes the provision of an academic program that teaches students the skills, knowledge and abilities to succeed in higher education and/or employment, which can only be achieved within a learning environment where students feel safe physically, socially and emotionally. An asymmetric sexual relationship between an adult in a position of authority — such as a teacher, coach or counselor — and an underage student is an open gateway to confusion and emotional abuse for the student and could adversely affect the student’s learning.
Secondly, any report of unlawful teacher–student relationship generates moral outrage in the school community and casts a pall on the school itself. The negative publicity and the erosion of the community’s trust in school staff create distractions for students and staff and undermine the district’s ability to achieve its educational mission.
Additionally, one of the oversight responsibilities of the school board is to be a good steward of the district’s resources. When an unlawful relationship like this is uncovered, the district’s limited resources are unnecessarily taxed. Typically, investigating an incident involves a significant amount of time as students, school staff and administrators are called to give testimonies, thereby taking away from time available for educational activities or for the achievement of the district’s educational purpose. Such investigations also involve legal costs which must be paid out of limited district resources.
What school boards can do
In an effort to prevent these scandalous occurrences, school boards should consider a number of actions, including the following:
- Training. Educating the school community about the issue and how to address it will help. The school board must be willing to provide its staff with training that includes how to recognize suspicious behavior and the process for reporting it, as well as the role of technologies such as electronic messaging systems in fostering these unwelcome relationships. Such trainings could be anchored to the sexual harassment training for supervisors, which is required of districts that have 50 or more employees, pursuant to Government Code section 12950.1. Though this requirement applies only to some districts, CSBA recommends that all school districts, regardless of the size of their workforce, train all of their employees, and that school boards — as elected officials with the authority to hire, transfer, suspend and discipline employees — receive the training. With this training, school board members could get up to speed on new laws and/or measures that could be beneficial to them in carrying out their responsibilities.
- Hiring and supervision policies, practices and processes. Establishing a hiring process with a robust background screening component is key to minimizing, if not eliminating, the possibility of hiring would-be child abusers. In addition, the adoption of a policy that provides direction for the supervision of employees, especially employees who have substantial interactions with students, would be helpful in limiting the opportunities for the occurrence of abuse or other inappropriate behavior. If the district allows employees to use social media to interact with students, it may need to establish reasonable restrictions that would be effective in protecting children, such as requiring an employee who is sending an electronic communication to a student to copy the message to the student’s parents. Districts must check to ensure proper and effective supervision of their employees, as failure to do so could result in legal liability for the district. In C.A. v. William S. Hart Union High School District (2012), the California Supreme Court ruled that, because a student is compelled by law to attend school and be subjected to the comprehensive control exercised by school employees, a school district could be held liable for a student who was abused, if it negligently hired a known child abuser and then allowed the person to interact closely with students without proper supervision.
- Information and notification. If vulnerable students are to be protected from inappropriate behavior, they and their parents must know when inappropriate conduct is happening so that they can report it. This was the rationale for the enactment of Assembly Bill 500 (Ch. 580, Statutes of 2017) which added new Education Code section 44050, effective Jan. 1, 2018. According to the new law, any school district that has adopted an employee code of conduct that includes a section that addresses employees’ interactions with students must post that section on its website. In addition, effective July 1, 2018, that district must also provide a written copy of the section to parents. Though this provision only applies to some districts by the letter of the law, CSBA recommends that all districts comply with the requirement.
Though no one measure will completely prevent unlawful sexual behavior by school employees, school boards must continue to find ways to effectively deter such behavior if they are to succeed in protecting their students from harm. CSBA has updated related sample policies and continues to work with districts and others to address issues of student safety and security.