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Legal Brief                                                         Page 10

 

Superintendent Accountability

for Employees’ Abuse 

 

BY MICHELE HANDZEL

legalbrief_Handzel

Select and supervise your employees carefully or face the consequences of their actions. Two universities have learned this lesson the hard way in recent months because of accusations of sexual misdeeds committed by prominent athletic coaches. Superintendents should be paying attention.

Last fall, a superintendent in a small-town district in upstate New York was indicted by a grand jury, charged with a misdemeanor criminal charge and placed on administrative leave by the board of education for allegedly not doing enough to protect several young girls in his district from an elementary school art teacher.

The indictment came about after the teacher was arrested on charges of touching the genitalia, backs and legs of elementary school girls. More than a dozen elementary school girls from grades one through six came forward during an investigation by local police into the alleged sexual abuse by the 37-year-old teacher. Members of the community told the news media they had heard the art teacher had been doing this for years, so they were not surprised the superintendent was indicted for his alleged failure to address the child sexual abuse allegations.

The teacher was allowed to continue his classroom duties for 10 months after the first report of abuse. He was removed only upon his arrest. Where was the superintendent in all of this?

Employer Liability
Presumably, the superintendent conducted an investigation into the matter, which could have involved outside counsel — but was that enough? Obviously not for the body of jurors and not for the parents of the young girls who have since commenced a federal lawsuit against the superintendent, alleging he knew and/or condoned the sexual abuse because he did not sufficiently act to prevent it.

Respondeat superior is the legal theory that states the employer is liable for the actions of the employee if the employee was acting within the scope of his or her employment, making the employer liable for actions, despite having no fault whatsoever.

Superintendents have a duty to protect the health, safety and welfare of students enrolled in the school district and must take appropriate actions within a reasonable amount of time after learning of allegations of sexual impropriety or an alleged misconduct by a staff member. Failure to investigate such allegations can result in criminal charges, loss of certification, loss of community support and loss of a job/career.

Diligent Documentation
What can you do to be pro-active? Begin by keeping up to date on all staff criminal histories and arrest records, which, depending on state legislation, may be reported directly to school districts. If there is reasonable suspicion that a teacher is abusing a student, regardless of whether the accused teacher or administrator is a friend or longtime colleague, make a report to the appropriate authorities, including the state education department and the local police.

Be sure to document your efforts to make a detailed investigation and report the alleged abuse. Train your teachers and administrators to recognize and report child abuse. Making a good faith effort to prevent, report and investigate allegations of child abuse may provide you with immunity to civil liability and a defense to criminal charges.

It is not clear if the indicted superintendent, who has worked in the district for approximately five years, will be allowed to come back to work or whether the criminal misdemeanor charges will stand in a court of law. He may be cleared by the county court (though the parents are suing him in federal court), and his board of education may refrain from judging him, but what will the court of public opinion in his district do?

The situation has made one thing quite clear to those in the profession — superintendents must be pro-active in the fight to prevent sexual misconduct or face the possibility of being charged and convicted of a crime they did not commit.

Michele Handzel is a school attorney with Capital Region BOCES in Albany, N.Y., and former counsel to the New York State Council of School Superintendents. E-mail: mhandzel@gw.neric.org

 

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