here is an expectation that come Jan. 1, 2020, AB 218 (Gonzalez, D-San Diego) — which expands the statute of limitations for filing claims of childhood sexual assault — will result in the filing of many civil actions against school districts and county offices of education. Local educational agencies (LEAs) should prepare themselves to receive childhood sexual assault claims from the past, as well as going forward.
This new law not only allows for a much greater expansion of the statute of limitations resulting in claims that may be filed decades later, it also requires LEAs to take reasonable steps or implement reasonable safeguards to avoid acts of childhood sexual assault when district employees are on notice or had reason to know of such a risk.
AB 218 extends the statute of limitations for filing claims of childhood sexual assault to 40 years of age, or up to five years after discovery, whichever is later. If the victim of childhood sexual assault proves that the assault was the result of a cover-up, the victim may recover treble damages: triple the amount of the actual/compensatory damages. A “cover-up” is defined as a “concerted effort to hide evidence relating to childhood sexual assault.” Childhood sexual assault means any act committed against a plaintiff that occurred when the plaintiff was under the age of 18 and that would have been prohibited by a category of crimes defined by the California Penal Code, such as child molestation, sodomy or forcible sexual penetration.
The law also allows for actions to be commenced on or after a person’s 40th birthday if the LEA “knew or had reason to know, or was otherwise on notice, of any misconduct that created a risk of childhood sexual assault by an employee or volunteer, or if the school district or county superintendent failed to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault.” Additionally, the law also opens up a three-year window for victims of any age to sue on previously expired claims that have not been “litigated to finality,” a phrase that is not defined and may include previously settled cases.
AB 218 applies to LEAs and is retroactive. Because damage awards typical in these types of cases are so high, this law could have devastating financial implications for school districts and county offices of education. Damage awards resulting from jury verdicts and settlements in school district cases have ranged from $8 million to $25.3 million in 2017–18 for claims of sexual abuse. CSBA opposed AB 218, indicating support for victims of sexual misconduct, but wanting to include preventative safeguards for future incidents of sexual misconduct as well as ensuring the measure of compensation for criminal behavior does not imperil its members’ ability to educate students.
Evaluating the risk of liability for LEAs necessarily requires an understanding of the pitfalls in which liability could reside.
As a general rule, individuals owe no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, if a special relationship exists between the defendant and the victim that gives the victim a right to protection. For three decades, California courts have recognized that a special relationship is formed between a school district and its students so as to impose an affirmative duty on the district to take all reasonable steps to protect its students.
This affirmative duty to protect students guarantees the right of all students to a safe, welcoming school environment fit for learning. The special relationship between a school district and a student flows from mandatory attendance, where government officials are directly in charge of children and their environments, including where they study, eat and play. Thus, individual school employees have a heightened responsibility for each child in their care, above the responsibility of the public in general.
Because of the heightened responsibilities of each school employee, school districts may be held liable for a range of foreseeable torts caused by them, including willful and malicious torts, as well as negligence, but not unforeseeable criminal acts, such as sexual molestation. The California Supreme Court ruled “the connection between the authority conferred on teachers to carry out their instructional duties and the abuse of that authority to indulge in personal, sexual misconduct is simply too attenuated to deem a sexual assault as falling within the range of risks allocable to a teacher’s employer.” The court held that the school district should not have to bear the cost of such conduct that was so far removed from the perpetrator’s employment.
While a school employee’s conduct in molesting a student will not be imputed to the school district simply by virtue of employment, if individual district employees responsible for hiring and/or supervising the employee knew or should have known of a reasonably foreseeable risk of harm to students under the employee’s care, the supervisors owed a duty to protect the students from such harm, and thus, liability attaches to the school district or county office of education.
School districts and county offices of education should review their policies and protocols to ensure that school administrators are prepared to implement reasonable safeguards or take reasonable steps when a risk of childhood sexual assault arises. School districts and county offices of education should consult with their legal counsel immediately if they have any concerns of past, present or future childhood sexual assault behavior.
CSBA model board policies also provide suggestions for initial steps toward implementing reasonable safeguards to avoid the risk of childhood sexual assault, such as CSBA’s new GAMUT Model Board Policy (BP) 4219.24. In July of this year, CSBA released new BP 4219.24 – Maintaining Appropriate Adult-Student Interactions. This board policy states that all employees should maintain the highest professional and ethical standards in their interactions with students and provides examples of inappropriate conduct.
School districts and county offices of education should also review other board policies and board bylaws having any application to childhood sexual assault behavior, such as their Child Abuse Prevention and Reporting BP and Administrative Regulation (AR), BP/AR 5141.4 – Recruitment and Selection, BP/AR 4111, 4211 and 4311 and Complaint policies, BP/AR 4144, 4244 and 4344, to ensure these policies are current and implemented appropriately and consistently.