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District not liable under Title IX for former teacher?s sexual misconduct subsequent to employment by another district

District not liable under Title IX for former teacher?s sexual misconduct subsequent to employment by another district
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Doe-2 v. McLean County Unity Sch. Dist. No. 5, ___F.3d___, 2010 WL 199625 (7th Cir. Jan. 22, 2010), is an important case. The Seventh Circuit held that a school district was not liable under Title IX for a former teacher teacher?s sexual abuse of a student that occurred after the teacher was employed by another school district. The appeals court also rejected the student?s state tort law claims for willful and wanton misconduct and violation of Illinois Abused and Neglected Child Reporting Act (ANCRA).

After receiving several complaints from parents and students regarding a teacher having engaged in inappropriate touching of female students and other sexually suggestive conduct and comments, district officials entered into a severance agreement with the teacher that ended his employment with the district.

The agreement included providing the teacher with a positive letter of recommendation. In August 2005, another school hired the teacher to teach elementary school. The prior district filled out a verification of teaching experience form and returned it to the new school district and indicated that the teacher had completed three years of service as a teacher. While teaching the new school district, the teacher sexually abused several of his female students using methods similar to those he employed while teaching in his prior school. The teacher was eventually arrested and pleaded guilty to aggravated criminal sexual abuse of several students.

The plaintiff, who was identified as Doe-2, was one of the students at the new school who was abused by the teacher in question. The Title IX claim against the prior school alleged that the district?s concealment of the sexual abuse amounted to deliberate indifference to the safety of students. In addition, plaintiff claimed that the prior school acted with willful and wanton disregard for her safety by concealing the sexual harassment. The district court dismissed all of plaintiff's claims.

The Seventh Circuit affirmed the lower court?s decision. Addressing the Title IX claim, the appeals court pointed out that in order for a plaintiff to establish that a school district has acted with deliberate indifference, she must show that the district had ?actual knowledge? of the sexual harassment and that the district exercised ?substantial control over both the harasser and the context in which the known harassment occurs.?

It emphasized that the control element is ?essential for Title IX liability because a school district cannot be liable for its indifference to harassment that it lacks the authority to prevent.? It found that prior school lacked such control over the teacher's harassment of Doe-2 in another school district.

It also noted that the Eighth Circuit addressed a similar Title IX claim in Shrum ex rel. Kelly v. Kluck, 249 F.3d 773 (8th Cir. 2001), concluding that the ?school district lacked the necessary control over the teacher?s abuse in the new district to incur Title IX liability. The Seventh Circuit rejected Doe-2?s theory that the prior school district had control at the point it entered into the severance agreement and chose to conceal the suspected abuse by allowing the teacher to quietly resign, thereby demonstrating deliberate indifference to the risk.

Turning to the state tort law claims, the Seventh Circuit pointed out that, under its precedent, a violation does not give rise to a private tort action unless the violation also breaches a common duty of care owed to the plaintiff. The court found that no such duty existed.

Query whether this decision is correct. Law review commentary would be welcome.

Mitchell H. Rubinstein

NYPPL Comments:

Sometimes the employer will agree not to reveal the reasons underlying its demanding an individual's resignation to potential employers. The employer?s ability to agree that the reasons leading to the demand for the individual's resignation shall remain ?confidential? has been tempered, however, in situations involving child abuse in an educational setting in New York State.

In response to the so-called ?silent resignation? in cases involving ?child abuse in an educational setting? by a school employee or volunteer, the New York State Legislature has declared that making an agreement ?to maintain confidentiality? in resignation situations where allegations of child abuse have been leveled against an individual is against the public policy of this State.

Education Law Section 1133 bars a school administrator or superintendent from agreeing to withhold the fact that an allegation of child abuse in an educational setting was involved in the separation of the employee or volunteer in return for the individual?s resignation or agreement to a suspension from his or her position.

A violation of Section 1133 is a Class E felony and, in addition, ?shall also be punishable by a civil penalty not to exceed $20,000.?

Providing false information concerning a former employee to a potential employer was a critical factor in Jerner v Allstate Insurance Co., 13th Cir Ct, FL 93-09472 [unpublished].

In Jerner providing an untrue statement of the reason why an individual left employment resulted in exposing the former employer to legal liability.

A Florida State Circuit Court judge ruled that Allstate Insurance Company could be sued because instead of warning a prospective employer of a former worker, Paul Calden, that he "might be dangerous," it falsified the reason for Calden's separation from Allstate.

Although Allstate's policy was not to give former employees "references," Calden presented a letter signed by an Allstate regional vice-president indicating that he had left Allstate's employ "because restructuring had eliminated his position" when he applied for a job with Firemen's Fund Insurance.

However, Calden's Allstate supervisor, John Deufel, said in a deposition that the real reason for his seeking to get rid of Calden was that "I was already reasonably sure that I had a total lunatic on my hands." Deufel said that Calden claimed that he was from another planet, carried a gun to work, talked about killing an individual with whom he had argued and had a list of names of co-workers at Allstate with the word "blood" written next to their name.

Firemen's Fund eventually fired Calden for absenteeism. A few months later Calden returned to Firemen's offices and shot five people. Three individuals died and two suffered serious wounds as a result of Calden?s actions.

The Circuit Court decided that the survivors and the families of the victims could sue Allstate for punitive damages. The case was settled before trial.

Full post as published by New York Public Personnel Law on March 12, 2010 (boomark / email).