The ABCs of School District Liability for the Abuse and Mistreatment of Students
Posted in Civil Rights, News on March 31, 2016
A disturbing video surfaced recently of a teacher’s aide slapping, tackling, and throwing items at a nine-year-old boy at TobinWorld, a school for children with disabilities in Antioch, California.[1] Public records from the local police department show that from 2008 to 2014, there were 35 episodes of violence between staff and students at TobinWorld’s three campuses reported to the police.[2] Other news reports and recent cases indicate that abuse and mistreatment of students is a serious problem at schools across the San Francisco Bay Area and California.[3]
Every parent wants to feel confident that his or her child’s school is a safe environment with trusted, experienced personnel looking out for every child’s best interests. Unfortunately, reality does not always meet our expectations, and students with special needs or disabilities are particularly vulnerable to abuse in schools. All students have the legal right to a school environment free from the misconduct or negligence of school personnel, and remedies are available when a student’s rights have been violated at school.
The California Constitution provides that all students have an “inalienable right to attend campuses which are safe, secure, and peaceful.” Cal. Const. Art. I § 28(f)(1). Further, California law requires that school districts and personnel carefully supervise students while they are on school premises, and districts may be held liable for injuries caused by the failure to exercise such care. See Cal. Ed. Code § 44807; Dailey v. Los Angeles Unified School Dist., 2 Cal.3d 741, 747 (1970). In addition, California courts have held that students with disabilities are uniquely vulnerable to abuse and harassment, making it reasonably foreseeable that a lack of supervision on the part of school employees could lead to harm. See, e.g., Jennifer C. v. Los Angeles Unified School District, 168 Cal.App.4th 1320, 1327-28 (2008); M.W. v. Panama Buena Vista School District, 110 Cal.App.4th 508, 520 (2003).
Excessive or Unreasonable Force by School Personnel
All public school students have the right under the Fourth Amendment to be free from unreasonable searches and seizures. A teacher or school official’s excessive and unreasonable corporal punishment of a student violates the student’s Fourth Amendment rights and gives rise to a cause of action under 42 U.S.C. § 1983. Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175 (9th Cir. 2007); Doe ex rel. Doe v. Hawaii Dept. of Education, 334 F.3d 906 (9th Cir. 2003). Further, even if a school administrator or supervisor did not participate directly in the excessive or unreasonable force, he or she can be held liable for failing to adequately train, supervise, or control his or her subordinates, or for other conduct that shows a reckless or callous indifference to the student’s rights. Preschooler II, 479 F.3d at 1182.
Sexual Abuse or Sexual Harassment by School Personnel
California and federal law protect students from sexual abuse and harassment at school. Title IX provides that no person in the United States shall, on the basis of sex, be excluded from participation in, or be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance. 20 U.S.C. § 1681(a). The U.S. Supreme Court has held that Title IX establishes a private right of action for money damages for violations of its provisions. Cannon v. University of Chicago, 441 U.S. 677 (1979); Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992). A student who is sexually harassed or abused by a teacher can bring an action for damages against the district under Title IX if the district has knowledge of, but is deliberately indifferent to the teacher’s misconduct. Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998).
Further, a student who has been sexually abused or harassed at school may bring a claim under 42 U.S.C. § 1983 for violation of his or her Fourteenth Amendment rights. The Ninth Circuit Court of Appeals has held that students have a Fourteenth Amendment substantive due process right to bodily integrity, which includes the right to be free from sexual abuse by school personnel. Plumeau v. School Dist. No. 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). In addition, a student who experiences severe and pervasive harassment that is motivated by gender may have a cause of action under the Equal Protection Clause. Walsh v. Tehachapi Unified School Dist., 827 F.Supp.2d 1107,1118 (E.D. Cal. 2011).
California law provides similar protections. The Unruh Civil Rights Act provides that all persons are entitled to full and equal services in business establishments regardless of their sex and that no business establishment shall discriminate against a person based on sex. Cal. Civ. Code § 51 et seq. California courts have found that a school is a “business establishment” for purposes of the Unruh Civil Rights Act. See, e.g., Nicole M. v. Martinez Unified School District, 964 F.Supp. 1369, 1388 (N.D. Cal. 1997). Further, Education Code Section 220 prohibits discrimination on the basis of sex in any program or activity conducted by an educational institution that receives or benefits from state financial assistance. Students who have suffered sexual harassment or abuse by school personnel may be able to recover damages under these California statutes.
Peer-on-Peer Sexual Harassment or Abuse
Even if a school employee was not directly responsible for the sexual harassment or abuse a student suffered, the district may be liable under Title IX for failing to intervene to protect a student from peer-on-peer sexual harassment or abuse. Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). A school that receives federal funding can be liable for deliberate indifference to student on student sexual harassment where the school had actual knowledge of the harassment, the harassment was so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school, and the school’s response or lack of response was clearly unreasonable in light of the known circumstances. Id.
The state of California offers similar protections against peer on peer sexual harassment under Section 220 of the California Education Code and the Unruh Civil Rights Act. Under Education Code Section 220, an educational institution that receives or benefits from state financial assistance can be liable for peer on peer sexual harassment where the victim suffered severe, pervasive, and offensive harassment that effectively deprived the victim of equal access to benefits and opportunities, the school had actual knowledge of the harassment, and the school acted with deliberate indifference. Donovan v. Poway Unified School District, 167 Cal.App.4th 567 (2008). Further, the Unruh Civil Rights Act’s prohibition on sex-based discrimination has been held to apply where a school fails to adequately respond to complaints of peer-on-peer sexual harassment. Nicole M. v. Martinez Unified School District, 964 F.Supp.1369, 1388-89 (N.D. Cal. 1997).
Abuse of Students with Disabilities
A student who has suffered abuse at school because of his or her disability may have a cause of action under the Americans with Disabilities Act (“ADA”) or Section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability. D.K. ex rel. G.M. v. Solano County Office of Education, 667 F.Supp.2d 1184 (E.D. Cal. 2009). Where a school district has failed to provide services, programs, and activities in a full and equal manner to disabled students, or failed to ensure that services are provided without hostility towards a student’s disability, the district may be liable for damages under the ADA. 42 U.S.C. § 12131 et seq. Similarly, where a school district denies a disabled student equal access to educational services or subjects a student with disabilities to a hostile educational environment, the district may be liable for damages under Section 504 of the Rehabilitation Act. 29 U.S.C. § 794 et. seq.
The state of California also provides protection against disability discrimination in schools through the Unruh Civil Rights Act and Education Code Section 220. Cal. Civ. Code § 51 et seq; Cal. Ed. Code § 220. A student with a disability who has been abused at school may be able to recover damages under these statutes.
Failure to Report Child Abuse
In addition to imposing a duty of supervision on school personnel, California law requires that whenever a teacher, instructional aide, or other school employee knows or reasonably knows that a child has been the victim of abuse or neglect, he or she must report the suspected abuse to the local police department, sheriff’s department, or welfare department. Cal. Penal Code §§ 11165.7, 11165.9, 11166. A mandatory child abuse reporter must report suspected child abuse immediately or as soon as practicably possible by telephone and submit a written follow-up report within 36 hours. Cal. Penal Code § 11166. A school district and its employees may be liable for damages caused by a mandatory reporter’s failure to report suspected child abuse. Wieder v. San Diego Unified School District, No. D056376, 2011 WL 6372878 (Cal. Ct. App. Dist. 4 Dec. 20, 2011).
[1] See “Antioch: Teacher’s Aide Arrested After Video Reveals Assault on TobinWorld Student,” Contra Costa Times, Jan. 1, 2016, http://www.contracostatimes.com/breaking-news/ci_29351063/video-clips-show-chaotic-scene-antiochs-tobinworld-classroom (last accessed March 31, 2016).
[2] See “Antioch School Where Video Shows Aide Striking Student Had History of 911 Calls,” ABC7news.com, Jan. 7, 2016, http://abc7news.com/education/tobinworld-schools-in-antioch-had-history-of-911-calls/1150763/ (last accessed March 31, 2016).
[3] See, e.g., “San Jose School District to Pay $15 Million in Abuse Settlement,” SFGate.com, June 15, 2015, http://www.sfgate.com/crime/article/San-Jose-school-district-to-pay-15-million-in-6329339.php (last accessed March 31, 2016); “Lawsuit Against School District Alleges Mistreatment of Child With Autism,” NBC Los Angeles Feb. 19, 2014, http://www.nbclosangeles.com/news/local/Parents-of-Autistic-Child-246310191.html (last accessed March 31, 2016); “School Abuse Reporting: Training Murky Despite Horrifying Cases, Survey Finds,” Inside Bay Area Mar. 10, 2013, http://www.insidebayarea.com/breaking-news/ci_22749690/school-abuse-reporting-training-murky-despite-horrifying-cases (last accessed March 31, 2016).
