Legal Brief                                                     Page 10


The Cautionary Wake of Penn State



The sex abuse scandal at Pennsylvania State University erupted with a fury in 2011, and an institution that had been revered, both academically and athletically, found itself transformed overnight into a synonym for indifference and cover-up of heinous acts of child sexual abuse.

No education leader wants to think about that sort of behavior occurring at his or her own institution. By looking closely at what went wrong at Penn State, we can learn from past mistakes, especially as regards the law.

Lesson 1: Remember your mandated-reporter status. School personnel are mandated child abuse reporters in every state. Failure to act on complaints, including the failure to notify proper authorities, is a crime. School district personnel should consult with legal counsel to be familiar with the specifics of their state law, but almost universally, educators are required to report even reasonable suspicions of abuse, including sexual abuse. If a sexual abuse claim is made against a staff member, a parent or guardian, or another adult in a position of responsibility over a child, it should be reported to the police or your state’s child protective agency.

On occasion, prosecutors have threatened to charge school officials with obstruction of justice for failing to report or for conducting only an internal investigation into a matter that should have been referred to the police. These internal investigations have the potential to taint child witnesses if not conducted properly and allow time for guilty parties to destroy evidence or change their stories.

Know the law, and make sure your staff knows it, as well.

Lesson 2: Take complaints seriously. According to the papers filed in court in the Penn State case, the initial complaints by an assistant football coach, allegedly made to Coach Joe Paterno in 2002, were not properly investigated and were not reported to the police. No formal investigation apparently was conducted by the university and, as a result, for almost 10 years, children continued to be victimized.

In hindsight, this first error appears almost inconceivable. No administrator who receives a report suggesting that an adult may have been engaged in inappropriate conduct with a student can turn a blind eye to the situation. Make sure your staff know what to do when someone comes forward, and instruct them to report inappropriate conduct, no matter who is involved.

Lesson 3: Train your staff. Every school district has or should have a Title IX coordinator, a sexual harassment policy and a uniform grievance policy, in addition to its mandated reporting policy. If your policies haven’t been reviewed lately, have them reviewed now.

Make sure every employee in your district knows about these resources and knows you take them seriously. Conduct regular, documented, in-service training for staff and make the policies known to students and parents. Provide access to the policies through the district website or in a published handbook.

Lesson 4: Don’t get in over your head. If you’ve got a potentially serious situation, be sure you allocate resources properly. When a beloved coach, teacher or administrator is implicated in wrongdoing, the person investigating must have enough independence and access to conduct a thorough probe. Consider using outside legal counsel or an independent attorney to conduct the investigation.

Lesson 5: Have a communication plan. When bad news hits (and it will, in some form), be prepared. Know who is going to speak for your school district and what they should say. Even in situations where you cannot comment on the specifics, you should have a message to communicate. It often helps to work with a public relations or communcations specialist in these situations.

No one wants to think about having their school district be in the position Penn State was in, but preparing for the worst will help you avoid having a bad situation become the next cautionary tale.

Nancy Krent is a law partner with Hodges, Loizzi, Eisenhammer, Rodick & Kohn in Arlington Heights, Ill. E-mail: nkrent@hlerk.com. Diane Marshall Freeman, an education lawyer with Fagen, Friedman and Fulfrost in Sacramento, Calif., contributed to this column.


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