At the 2017 PRIMA Annual Conference, a panel discussed issues pertaining to sexual misconduct and bullying in schools. The panel included:
- Beth Capek – Vice President, Claims Client Manager, Munich Reinsurance America
- Lance Hammond – Director Risk Management Department, Clear Risk Solutions
- Catalina Sugayan – Partner, Sedgwick LLP
Sexual misconduct cases can result in significant liability for school districts. Two recent cases highlighted were a $3 million jury award in Florida in August 2016 and a California case in March 2017 that settled for $8.25 million. These awards highlight the importance of schools training their staff to recognize potential sexual abuse situations so that they can be prevented.
School districts can also be found liable for sexual misconduct that happens off school grounds when the plaintiff can show that the school district should have known there was a potential problem and did not take action. The panel highlighted a case where the student was being molested away from the school property. Another teacher had confronted the molester a few days before the incident, but did not report it to management at the school.
Sexual misconduct is not just limited to staff and student interactions. A school district can be found liable for the actions of students against other students if they do not take appropriate actions to prevent harm. The speaker highlighted a case where girls were groped on the bus, but the driver took no action. All this was captured on the bus’ surveillance cameras. The school district used to have monitors on the buses, but replaced them with cameras for cost reasons. While a bus monitor can be proactive and prevent a situation, cameras can only document activity.
According to the U.S. Department of Education, bullying is an unwanted, aggressive behavior among school-aged children that involves a real or perceived power imbalance. The behavior is repeated, or has the potential to be repeated, over time. Bullying includes actions such as making threats, spreading rumors, and actual physical assaults. There is no federal statute that directly addresses bullying, but there are multiple statutes that could apply to this situation. 49 states have created specific anti-bullying statutes (all states excluding Montana).
There are significant differences between traditional bullying and cyber bullying. Cyber bullying allows the person to be anonymous and it can happen anywhere. It can have a very widespread reach and can be very difficult to remove. Instead of being verbal and physical, it often involves media such as pictures or video.
According to a recent survey, over 70% of high school students reported being cyber bullied in the last year. Regarding frequency, 19% reported once-to-twice a month, 5% reported weekly and 3% reported daily. The most common reason for the bullying is appearance and body image.
Stopbullying.gov is a federal government-managed website to help educate people on issues with bullying.
Legal Liability for Sexual Misconduct and Bullying
Elements of negligence include a duty and proximate cause. Tort immunity defenses may exist and many states have limits on liability against certain public entity employers. Many state laws prohibit suits directly against employees of educational institutions. Instead, the suit must be brought against the institution. Often the institution is required to defend the individual if they are sued individually. Tort immunity for municipalities can also limit punitive damages. It is important to know the laws in your state.
If the plaintiff files a cause of action under federal statutes, the state tort immunity statutes do not apply. People often file suits in both state and federal courts to get around the caps. Title IX is a common basis for suits against educational institutions. This allows for suit under federal law if the defendant can prove deliberate indifference to sexual harassment and that the facility receives federal funds. Plaintiffs can also allege federal civil rights violations to get around state liability caps.
Some of the more noteworthy Title IX cases have been filed against universities for action taking place by their student athletes. Often the allegations are that the lack of supervision of athletes off-site when they should have known there was inappropriate behavior taking place. However, they are seeing an increasing number of cases filed stating the university mishandled investigation of sexual misconduct investigations. In April 2015, there were 106 colleges and universities under investigation due to concerns the schools may have violated Title IX in the mishandling of sexual misconduct allegations.
- Serious health issues can result whether or not there is physical abuse. Non-physical bullying can cause mental health issues, which ultimately leads to physical problems.
- Districts must not ignore their enhanced duty of care. Fair or not, schools are held accountable for children on their watch. This can extend to before and after actual school hours and off the school property.
- Good communication is critical. Build those bridges with parents and guardians early.
- Hazing is alive and well and needs to be addressed.
- Local attitudes can make it hard to uncover problems and change things.
- Proper supervision is critical. This cannot be delegated except under very specific circumstances.
- Even silly claims need to be investigated. Beauty and fear/distrust is in the eye of the beholder.
- Documenting response/investigation is important.
Risk Management Challenges
- Emotional issues make it difficult to satisfy all involved.
- Complex issues create a fertile ground for claims.
- It is difficult to reach everyone with training. In particular, with volunteers and substitute teachers.
- Community attitudes can make it difficult to combat harassment.
- Difficult to control campus encounters.
- Bullies are often adept at concealing their actions.
- We are working with children. The brain is not fully mature until age 25, so they do not have a full comprehension of right and wrong.
Mitigating Against Exposures
- Policies and procedures must be developed and followed. An unenforceable policy is worse than no policy at all.
- Have clear policy statements about what is prohibited, what action much take place after a complaints, etc.
- Make sure to have legal review done to make sure policies comply with state, federal and local laws.
- Provide for confidential, anonymous reporting.
- Investigate upon receipt of complaint.
- Investigators should be trained, may be independent.
- Duty of fairness to protect the interests of the accused and the accuser. A big trend in litigation right now is an accused who was vindicated later filing suit because their reputation has been smeared.
- Taking action based on freedom of expression can lead to litigation. This can be a fine line.
- Make sure investigation is complete, but cooperate with law enforcement.
- Report the outcomes of the investigation.
- Impose the discipline, dismissal or corrective action.
- Conduct background checks on ALL employees and volunteers.
- Train, train, train. Make sure to update your training program as your policies or laws change.
- Make sure your training covers people who do not speak English.