Legal Ease: School Law Notes: Boards must protect children from sexual misconduct
By Donald F. Austin and Michael A. Patterson
01/09—According to a 2004 study commissioned by the U.S. Department of Education, 9.6 percent of female students in grades K-12 have been or will be sexually harassed or abused by a school employee at some time.
The news media publicizes the harm done by educators who prey on children, giving the public one more reason to mistrust public education. In Washington state alone, 26 school employees were in the headlines in 2007 for sexually molesting students. When the news media reports an average of two such incidents a month, the public must wonder why we are not able to better protect their children.
The solution is not complicated: All it takes is for school leaders and employees to understand how sexual predators operate in the schools and to spot and immediately address red-flag behavior.
According to experts, there are two kinds of child molesters -- “grabbers” and “groomers.” When an educator molests a student, the molestation is almost always preceded by “sexual grooming.” School officials can protect students, therefore, by preventing grooming.
This can be difficult, though, as such behavior can be quite subtle, at least in the beginning. Many experts are unwilling to label conduct as “sexual grooming” until sexual intent has been established by actual misconduct. Nonetheless, since such grooming is accomplished through inappropriate boundary invasions, sexual grooming of students can be prevented by stopping such invasions.
There are two kinds of boundary invasions -- those that are appropriate because they have educational or health reasons and those that are inappropriate. The key is for administrators to be able to make a distinction between the two -- monitoring the former and taking action concerning the latter.
This distinction is important because boundary invasions are not necessarily the same thing as sexual grooming.
Some boundary invasions that take place in the school setting might make educational or medical sense. Examples include a teacher or aide changing a kindergartner’s pants after a toileting accident; a coach touching students during wrestling, football, or gymnastics practice; or a teacher asking a student to stay after school to help prepare a presentation the following day.
Sometimes, the pattern of such contact gets out of hand and begins to take the form of a “special” or “secret” relationship. To avoid that problem, administrators must be aware of boundary invasions occurring at school to determine when a teacher might be going too far.
Inappropriate “boundary invasions” sometimes occur when an adult invades a child’s personal space or personal life, such as when an adult:
• Takes an undue interest in a student;
• Offers gifts or money to a student for no legitimate educational reason;
• Engages in peer-like behavior with students, such as trying to be “cool” or be like one of the kids;
• Is overly “touchy” with students;
• Favors certain students by giving them special privileges or inviting them to come to the classroom at non-class times;
• Gets a student out of class repeatedly to visit the teacher;
• Allows a child to get away with inappropriate behavior;
• Spends time alone with a student behind closed doors at school;
• Takes a student on outings away from protective adults or gives a student rides in the teacher’s vehicle without administrative approval;
• Initiates or extends contact with students beyond the school day for personal purposes;
• Invades the child’s privacy, such as by walking in on the child in the bathroom or locker room;
• Uses e-mail, text-messaging, or websites to discuss personal topics with students;
• Goes to the student’s home for non-educational purposes or takes the student on personal outings even with the parents’ permission;
• Tells sexual jokes to students, engages in talk containing sexual innuendo, or talks about sexual topics that are not related to the curriculum;
• Shows pornography to a student; or
• Hugs, kisses, or engages in other physical contact with a student.
Board members can take a variety of steps to protect students from sexual misconduct by teachers or other school employees:
• Review your district policies and procedures to determine whether inappropriate boundary invasions are prohibited and must be reported to the administration. Revise employee handbooks, the annual notice to parents, and employee training if necessary.
Sample policies and procedures are available from the May 2008 edition of Inquiry and Analysis published by NSBA’s Council of School Attorneys. COSA members can access the document at www.nsba.org/cosa.
• Make sure your district adequately documents boundary invasions by employees in personnel files to ensure the district won’t fall victim to institutional amnesia.
• Lobby for changes in your state’s public records law to make discipline of school employees for inappropriate conduct with children a public record.
• Seek state laws that require districts to receive written references from all school districts where employees had worked in the past to determine whether sexual misconduct, abuse, or boundary invasions with a student occurred.
• Lobby for laws requiring all staff to report physical or sexual abuse of students to the administration when they become aware of such matters. Include a requirement that boundary invasions also be reported so that administrators can determine whether inappropriate behavior has occurred.
We have recently come to understand that sexual predators groom their prey in schools by using inappropriate boundary invasion behaviors and creating “special relationships.” Decisive leadership is needed for school districts to take advantage of this new information and take measures to protect children by appropriately addressing boundary invasion incidents.
Donald F. Austin is a senior associate and Michael A. Patterson is a senior partner in the Patterson Buchanan Fobes Leitch & Kalzer Inc. law firm in Seattle.
Reproduced with permission from
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