Daniel G. Kagan, trial lawyer and partner at Berman & Simmons

School Safety – How Safe are our Schools


National headlines have disrupted our trust in the sanctity and safety of our schools. We have known and, sadly, accepted for some time that the world is not always a safe place for our children. Historically, however, we could at least trust our schools to provide safe havens...

Schools are a lot less safe than they used to be, thanks to the United States Supreme Court
Summer is upon us. I have dropped my kids off at school for the last time until September. When they go back in the fall, it won’t be the same.

National headlines have disrupted our trust in the sanctity and safety of our schools. We have known and, sadly, accepted for some time that the world is not always a safe place for our children. Historically, however, we could at least trust our schools to provide safe havens to which we could send our children without fear or reservation. From 8 to 3, we trusted that our kids were safe.
That trust is no longer justified. We see news reports of shootings of school children, by school children, on school grounds, raising questions about our children’s safety from violence at school. Now, the United States Supreme Court, in its recent decision in Gebser and McCullough v. Lago Vista Independent School District, has given us reason for concern for our children’s safety from sexual abuse. So long as they turn a blind eye, schools cannot be held accountable for damages caused when school personnel sexually abuse the children entrusted to their care.  
Title IX of the Educational Amendments
In 1972 Congress enacted Title IX of the Educational Amendments to guarantee every person an education free from discrimination. In part, Title IX requires that every school receiving federal support (i.e. virtually every public school in the country) must provide its students an education free from sexual harassment, sexual predation and sexual abuse. The Supreme Court affirmed this principle six years ago, in Franklin v. Gwinnett County Public Schools, confirming that victims of Title IX violations could sue an offending school department for damages caused by the discriminatory or abusive conduct.

Title IX thus was enacted to give parents currency to hold schools accountable for the safety and well-being of their children. Title IX was to be a powerful weapon, designed to expose schools to public scrutiny, to encourage us to act affirmatively on behalf of our children, and to ensure that children could be compensated fairly for the harm caused by Title IX violations.

Last week, in a sharply divided decision, the United States Supreme Court gutted Title IX. 
In Lago Vista, Texas, 14-year-old Alida Gebser first drew the attention of a teacher, Frank Waldrup, in eighth grade. Waldrup began making sexually suggestive comments in a book discussion group in which Alida participated. Other students complained about Waldrup’s improper conduct, conduct Waldrup denied in a meeting with school administrators. By ninth grade, teacher Waldrup’s sexual advances on Alida developed into an intimate sexual relationship. Alida, out of fear of the consequences, did not report Waldrup’s predatory actions. The relationship, which included having sex during class time, ended only when they were caught engaging in sexual intercourse by a police officer. Waldrup was fired shortly after.

Alida and her parents sued the school district under Title IX. Title IX prohibits schools from sexually harassing or abusing its students. Schools act through their employees, including teachers. A school employee, Alida Gebser’s teacher, sexually abused her.
Under Title IX, the Gebsers argued that the school was liable because it either knew or should have known of Waldrup’s offensive conduct. This argument is consistent with current employment discrimination law, which holds employers liable for workplace discrimination or harassment if the employer knew or should have known of the offending conduct.

The Texas federal trial court decided that the Gebsers had no case. Even though the Gebsers proved that the sexual contact took place, that Waldrup had used his authority as a school employee to initiate and perpetuate the sexual relationship, and that there had been complaints from other students about Waldrup’s conduct, the trial court found that the Gebsers could not recover because they couldn’t prove that the school actually knew that Waldrup was having sex with his student. The Supreme Court agreed, ruling that unless the victim can prove that the school had actual knowledge of its employee’s sexually predatory actions, the victim has no case. As a result, parents of sex abuse victims face an impossible standard of proof against a school that denies knowledge.
The Court’s decision was a close one, by a 5-4 majority vote. Justice Stevens, writing for the dissent, points out the hypocrisy in the majority opinion. Waldrup’s sexual abuse of his student, writes Stevens, was made possible only by his affirmative misuse of his authority as her teacher. As a teacher, he was part of the school, his authority stemmed from his role in the school, and and he used his role to take sexual advantage of his student. To deny the student her Title IX protections because the “school” didn’t know it was happening flies in the face of logic. Congress enacted Title IX to force schools to adopt and enforce practices that protect vulnerable students. The Supreme Court’s decision encourages the opposite, eroding our children’s protection. As Justice Stevens put it, “as long as school boards can insulate themselves from knowledge about this sort of conduct, they can claim immunity from damages liability.” In other words, see no evil, pay no damages. 

The changing roles of the school
Ironically, the shield erected by the Supreme Court comes at a time when public schools have never had a greater role in developing our children. It used to be that the school day was consumed by reading, writing and arithmetic. Parenting responsibilities remained at home. Today, we rely on our public schools to raise and educate our children in ways never dreamed of thirty years ago - sex awareness, AIDS awareness, alcohol and drug awareness have become integral parts of the public school curriculum. As parents, we should have the right to expect that our children will be protected by the minimal Title IX standards, and to hold our schools accountable where their employees deliberately harm the children entrusted to their care.

The Supreme Court’s majority opinion admits that sexual harassment “unfortunately is an all too common aspect of the educational experience.” We have all read about these cases in the newspaper, even here in Maine. Last year, under Title IX, a mid-coast school district paid compensation to several elementary school boys who were the victims of sexual abuse by a school employee. Just this spring, the City of Augusta entered into a settlement agreement under Title IX to pay two former male students whose lives were devastated by an Augusta elementary school teacher who sexually preyed on boys at the school. 

While Title IX obviously did not prevent the abuse from happening, it was the threat of Title IX lawsuits that forced the school boards and administrators not to sweep the problem under the rug, to face the problem directly, and to institute safeguards to prevent reoccurrence. Parents’ ability to enforce Title IX through the courts kept school boards vigilant and our children safer. Sadly, as Justice Stevens says, the Gebser case undoes this protection, and in fact gives school boards and administrators an incentive to avoid knowing anything, to remain purposefully ignorant. Blinders avoid lawsuits.

This need not be the end of the story. Congress created Title IX 25 years ago, to afford protection to public school students from discrimination. The protections and remedies stripped judicially by the Supreme Court can be restored legislatively by Congress. No candidate can stand against safe schools, and there is no better time - and no better issue - to get the attention of our representatives. This is, after all, an election year.


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