2011-08-16 02:08:05 by admin
Child Abuse is a major problem in the United States. Researchers began calling attention to the issue in the 1970s, and today all 50 states have laws in place that require educators to report suspected Child Abuse or neglect to law enforcement officials or Child Protection agencies. In addition, sexual abuse of children in school settings is now recognized as a serious and recurring problem. Child victims have sued school boards under a variety of theories for sexual abuse perpetuated by teachers or other school employees. This entry looks at both kinds of abuse as related to education.
Scope and Nature
It is impossible to know how many children are victims of sexual or physical abuse, because definitions of abuse vary somewhat from state to state, a large number of incidents go unreported, and not all reported cases are investigated or substantiated. According to the National Child Abuse and Neglect Data System (NCANDS), child protective service agencies and other social service agencies received approximately 3 million referrals of Child Abuse or neglect in 2004. These agencies confirmed that 872,000 of these referrals involved victims of actual abuse or neglect. NCANDS data indicated that almost four out of five perpetrators were parents.
Medical experts agree that many who are sexually abused as children experience serious health consequences that can last a lifetime. Long-term injuries include anxiety, depression, impaired cognitive functions, suicidal ideations, low self-esteem, and posttraumatic stress disorder. In her book Trauma and Recovery, psychiatrist Judith Herman wrote that children who are abused by caregivers sometimes develop destructive attachments to their abusers that prevent them from reporting the abuse. In fact, when questioned about possible abuse, victims may lie to protect their abusers. In school settings, this phenomenon makes it difficult for educational authorities to investigate their suspicions of Child Abuse.
Child Abuse Reporting
California enacted the first Child Abuse reporting law in 1967. In 1974, Congress passed the Child Abuse Prevention and Treatment Act (CAPTA), establishing the National Center on Child Abuse and Neglect while providing financial incentives for states to develop programs to identify and prevent Child Abuse and neglect. Partly due to CAPTA, all states now have laws in place requiring certain individuals to report suspected Child Abuse or neglect.
Even though Child Abuse reporting laws differ from state to state, all of them protect child-abuse reporters from civil liability for making reports in good faith. All states provide civil or criminal penalties for persons who are mandated to report Child Abuse and neglect but knowingly fail to do so. Persons who are mandated reporters under these laws include health care workers, educators, and mental health professionals. In most states, Child Abuse reporting requirements take precedence over various legally recognized privileges of confidential communications. Accordingly, school counselors may be required to report suspected Child Abuse or neglect that they learn about in otherwise privileged conversations with clients. In every state, teachers, principals, and other school board professional employees are required to report suspicions of Child Abuse and neglect that they come across in the course of their professional duties.
In spite of the Child Abuse reporting laws and the legal penalties in place for failing to report, researchers have documented that mandated reporters—including teachers—do not report all the Child Abuse that they suspect. Teachers are more likely to report their suspicions of physical abuse rather than sexual abuse, perhaps because the indications of physical abuse are more readily apparent than the signs of sexual abuse. Motives for failing to report are varied and include concern about disrupting relationships with the families of children, lack of faith in investigative agencies, fear of litigation, and pressure from peers and supervisors not to report.
In most states, laws direct reporters to contact their Child Protection agencies if the abuse takes place in homes. Abuse by persons outside of homes is generally reported to law enforcement authorities. Most states have laws protecting the confidentiality of Child Abuse reports.
School District Liability for Sexual Abuse
It is now universally recognized that sexual predators may be school employees who use their positions to get access to children for purposes of sexual abuse. Estimates of the prevalence of sexual abuse in schools vary widely. In a report commissioned by the U.S. Department of Education, Charol Shakeshaft noted that teachers whose job description includes time with individual students, such as music teachers and coaches, are more likely to sexually abuse students than other teachers.
Increasingly, the student victims of schoolemployed sexual predators are suing school boards and their supervisory employees. Until the 1990s, almost all of these suits were brought in state courts with victims alleging negligent hiring or negligent supervision of the abusive employee. Sometimes plaintiffs sued under agency principles, charging school boards with vicarious liability for the conduct of their employees. In many states, boards enjoy statutory Immunity from these suits. In some jurisdictions, courts have ruled that boards cannot be vicariously liable for sexual misconduct of their employees with children, because such acts are outside the scope of the employee’s employment.
Due to the difficulty of prevailing in state courts under common-law negligence theories, some plaintiffs have elected to sue school systems in federal court, alleging constitutional violations based on the sexual misconduct of school employees. At least two federal circuit courts recognized a constitutional cause of action against school boards in these situations. In Stoneking v. Bradford Area School District (1989), the Third Circuit ruled that students have a constitutional right to be free from sexual molestation by teachers. Here a female high school student alleged that she was the victim of sexual abuse by the school’s band director over a period of several years. In addition, the student claimed that school administrators knew about the band director’s conduct yet failed to act. The Third Circuit reasoned that the student’s allegations, if true, were actionable as a violation of her constitutional rights.
In 1994, in Doe v. Taylor Independent School District, the Fifth Circuit reached a similar outcome. At issue was the allegation that a school principal acted with deliberate indifference to numerous indications that a teacher was sexually involved with a 14- year-old female student. The court reasoned that the student had a well-established constitutional right to bodily integrity and that sexual molestation by a teacher is a violation of that right. The court concluded that the principal could be personally liable if it were found that he had acted with deliberate indifference to his subordinate’s violation of the student’s constitutional rights.
Title IX of the Education Amendments of 1972 prohibits sex discrimination in educational institutions that receive federal funds. Based on judicial interpretations of the law, it is now well established that sexual abuse of a student by a public school employee is a violation of Title IX. In Franklin v. Gwinnett County Public Schools (1992), the U.S. Supreme Court ruled that a victim of sexual harassment could sue a school board for money damages. Not surprisingly, litigation in this area has increased in its wake. In Gebser v. Lago Vista Independent School District (1998), the Court clarified the standard for assessing Title IX liability against school boards when their employees sexually molest children. Boards are not liable for such acts, the Supreme Court decided, unless school officials with supervisory authority have actual knowledge of the abuse and respond with deliberate indifference.
Many states now require school boards to conduct criminal background checks of job applicants in order to identify convicted Child Abusers who seek school employment. Some states require school officials to notify their state teacher-licensing agencies of any Child Abuse allegations that are made against teachers.
Educators are becoming increasingly aware of the “mobile molester,” school employees who resign their positions under allegations of Child Abuse and later obtain employment in other districts. Often, school officials aid these mobile molesters by writing good letters of recommendation on the condition that the accused employees resign from their positions. In Randi W. v. Muroc Joint Unified School District (1997), the Supreme Court of California ruled that a student victim of a vice principal’s sexual abuse could sue the perpetrator’s previous school board employer for negligent representation and Fraud based on allegations that officials wrote positive letters of recommendation on his behalf while knowing that he was dangerous to children.
Claims against school boards arising from the sexual abuse of children by school employees are on the increase. Yet, school systems often escape liability, because plaintiffs find it difficult to prove that school authorities knew that employees were molesting children. For this reason, courts are often reluctant to render educational officials and boards liable for the aberrant behavior of sexual deviants who happen to be school employees.
- Fossey, R. (1993). Law, trauma, and sexual abuse: Why can’t children protect themselves? West’s Education Law Reporter, 91, 443–454.
- Fossey, R., & DeMitchell, T. A. (1997). “Let the master answer”: Holding schools vicariously liable when employees sexually abuse children. Journal of Law and Education, 25, 575–599.
- Herman, J. (1992). Trauma and recovery. New York: Basic Books.
- Horner, J. (1995). A student’s right to protection from violence and sexual abuse in the school environment. South Texas Law Review, 36, 45–57.
- Pence, D. M., & Wilson, C. A. (1994). Reporting and investigating child sexual abuse. The Future of Children, 4(2), 70–83.
- Shakeshaft, C. (2004). Educator sexual misconduct: A synthesis of existing literature. Washington, DC: U.S. Department of Education.
- Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101 et seq.; 42 U.S.C. §§ 5116 et seq.
- Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir. 1994).
- Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).
- Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998).
- Randi W. v. Muroc Joint Unified School District, 929 P.2d 582 (Cal. 1997).
- Stoneking v. Bradford Area School District, 882 F.2d 720 (3d Cir. 1989), cert. denied, 493 U.S. 1044 (1990).
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