Protecting Students From Educator Misconduct

Winter 2018

By Debra P. Wilson

In the summer of 2016, The National Association of Independent Schools (NAIS) and The Association of Boarding Schools (TABS) partnered to convene a national task force to dive deeply into the issue of educator sexual misconduct in independent schools and to develop recommendations to help independent schools improve child safety.

After soliciting nominations from schools as well as identifying experts in the field, the task force was announced. The group met in person three times during the 2016–2017 school year as well as virtually. Task force members delved into research about child protection and learned from independent school leaders familiar with school practices, cultures, and campuses. The group also gathered feedback from alumni, child abuse survivors, and administrators who’ve managed cases of misconduct, as well as others with expertise in child abuse prevention to guide the recommendations and the development of resources. A draft version of the report was released in late summer 2017 with a request for additional comments. 

The report’s recommendations are split into two sections: prevention and response.
 

Prevention

The prevention recommendations follow a risk management outline to help schools thoroughly review the risk within the school, including the physical plant itself, as well as its policies, personnel (such as training of required additional expertise), and planning. A team dedicated to child protection should do the initial review, and the system should be regularly revisited to ensure that the school is addressing prevention and is ready to respond appropriately if an issue arises.

Schools should review the report and supporting resources for a more comprehensive overview, but thefollowing are the general points that all schools should consider fundamental to their work in this area:  

Form a child protection or child safety team. This team is charged with evaluating policies and addressing risks related to child protection. The team should be made up of a cross section of staff members who can bring both a bird’s-eye view of the school’s systems as well as a pragmatic understanding of how the school actually operates. 

Create and use a code of conduct. Codes of conduct articulate behavioral expectations of adults with students and other children. They may list prohibited behaviors, but should also include professional expectations, such as being a role model and upholding school values. Importantly, codes of conduct can and should be used to train and evaluate staff. They can act as an important set of guidelines for less experienced staff. The code of conduct is fundamental to human resource policies. 

Review risks for boundary breakdowns and implement policies and procedures. The code of conduct serves as a foundation, but other policies offer additional protection for students, such as technology policies, off-campus travel policies, and policies governing physical interaction, such as one-on-one student-teacher meetings. Consider how your school’s special events, traditions, or unique physical plant may create opportunities for adults to physically isolate children or may enable boundary violations. Consider off-campus events, including international travel or other overnight trips, technology platforms that allow conversations that are not seen by others, and classroom spaces where interactions are not interruptible.    

Maintain both intervention and reporting systems. Maintain a system for tracking and reporting sexual misconduct as well as a system to address issues such as breaches of the code of conduct or other boundary protocols that do not rise to the level of sexual misconduct. Teachers who struggle to maintain boundaries or adhere to the code of conduct need official coaching from the school or may not be fit for working with children. Tracking issues helps identify patterns that inform staffing decisions and ensures that information is not lost as staff turns over. 

Adopt thorough protocols for staff, volunteers, and others. Schools must run background checks for all who may be in a position to oversee or interact with students without a school staff member present. These checks may include longer term contractors, volunteers, and others. For staff members, schools should also check references and actively ask probing questions about the applicant’s suitability to work with students. Schools should also obtain release forms from applicants and departing employees so that the school can provide forthright references. 

Provide training for all groups. Training should be provided for staff, regular and significant contractors, students, and parents. The training can and should be varied to keep the topic interesting and relevant, and it should be done yearly. In addition to training on mandatory reporting obligations, consider working through case studies with staff that focus on the school’s professional boundaries and code of conduct expectations. Students should engage in age-appropriate education that explains the school’s reporting process as well as boundary expectations between staff and students. 

Be ready for an issue. Schools need to adopt reporting protocols within the school so that all staff members know how to report if they suspect misconduct of any kind. The school should predetermine who will be on the response team, including any experts outside the school, which may include legal counsel, a counselor, and others. Ideally, this group will have the opportunity to walk through how everyone will work together and what the expectations are for the different roles. Additionally, the school should know the history of its insurance coverage for student abuse as different insurance policies may cover past incidents and not cover current cases. 
 

Response

As knowledge about preventing abuse has grown and many states passed laws protecting children from educator abuse, social customs have also shifted. The Penn State/Jerry Sandusky case in 2011, in particular, changed expectations for schools responding to allegations of abuse. Transparency is now a common expectation. Parent communities expect to know when the school has a serious issue that it is investigating. From a risk management perspective, expectations include:

Know and follow reporting laws. Quite simply, when in doubt, schools should err on the side of reporting. If the state does not act, the school should document the reporting conversation and continue to investigate. If the investigation later turns up more information, another report can be made.  

Respond quickly and appropriately. This is where tabletop exercises help build staff muscle memory on response. Schools must respect the needs of the person raising the issue and have sufficient information to report, but also should not rush into an in-depth interview with a student if protective services may be brought in. Current student safety is also a top priority. 

Be aware of your biases. Children very rarely falsely accuse adults of abuse or neglect. The reality of what a child reports may be difficult to understand or manage in light of your interactions with the person in question, but that knowledge is irrelevant to the report of the child. Keep in mind that people who abuse children typically look for children who may not be believed because they have had past behavioral issues. 

Work thoughtfully and fairly with the accused. Once reporting has occurred, the school should understand what law enforcement’s investigation and interactions with the accused, if any, may be. Law enforcement may want to talk to the accused before the school does. If the school must notify the accused (for instance, if the person is a teacher who must be removed from the classroom immediately), the conversation should include more than one school representative. The accused should be kept up to date on the school’s process as appropriate. 

Maintain privacy and confidentiality. Reports vary in the level of confidentiality and privacy that may be needed or desired, and these requirements can change over time. Schools should start with the premise that privacy and confidentiality of both the victim and the accused are paramount. As investigations continue and permission for disclosure is provided or allegations are proved to be true, disclosure of either the victim or the accused may be appropriate, but they should never be provided without this additional permission or proof. 

Conduct an independent investigation. Many schools hire independent investigators after a case comes to light (and after law enforcement has investigated). An independent investigation must be independent of the school and the school’s legal counsel. This person or team may be attorneys or specialists trained in this area, and they may be hired by the school’s attorney to maintain attorney-client privilege. The investigator should have access to whomever and whatever may move the investigation forward appropriately and thoroughly. The goal of these investigations is to uncover the truth and make recommendations to improve the school’s child protection policies and processes. 

Communicate with compassion. There is a growing expectation that schools will communicate transparently and frequently with the parties involved as well as with the broader school community. Schools need to work with their boards, legal counsel, investigators, and communication consultants to have a clear communication plan that ensures transparency and protects the privacy and confidentiality rights of the individuals involved. The school should keep the community informed of the important steps the school is taking as well as how people may report an issue or seek additional information as appropriate. This is a hard balance to strike. The safety and well-being of the students, current and former, must be the driving force. Schools that enter into communication with a primary focus upon the school’s reputation usually find they are not aligned with community expectations and further damage will be done to the school. 
 

Other Changes

Beyond the substance of the report, there are three issues that schools should be aware of in this area. The first is linked to accreditation, where schools will be seeing new standards. The second is linked to potential liability exposure. The report does potentially create new standards applicable to negligence liability. The final effect is more of an industry clarification of expectations. Over time, the number of reports, lawsuits, and other actions related to educator misconduct have changed the standards of communication and disclosure expectations within the industry. The report outlines practices within the community that have now become expectations. 
 

Accreditation

Contemporaneous with the Independent School Task Force on Educator Sexual Misconduct, the NAIS Commission on Accreditation examined the various child protection-related requirements around the country and the globe. The accreditation process rests on comprehensive standards that schools must meet. The Commission found that standards for child protection varied from accrediting body to accrediting body. At its February 2017 meeting, the Commission voted to explore adopting a new standard that all of the accrediting bodies would meet. The Commission modified one of its overarching standards to include “child and student protection.” This change ensures that child and student protection are addressed separately within accreditation standards, and no longer within general health and safety standards. 

Current standards address all areas of school life, including the following: mission, governance, finance, program, community of the school, administration, development, admission, personnel, general health and safety, child and student protection, facilities, student services, school culture, and residential life (where applicable).

Ultimately the various state, regional, and international accreditation associations within this group will further articulate requirements in this area for their schools. 
 

Liability

Another potential effect of the task force recommendations relates to liability. When a school is sued for harm to a child, it is often in the form of a negligence claim. Any claim of negligence involves a standard of behavior that should be met, and the failure to meet that standard is a proximate cause of the harm itself. How liability is apportioned varies across states, but the overall paradigm remains the same. In a lawsuit, the plaintiff generally bears the initial burden of defining the baseline standard. Accreditation standards, standards for other schools (including public schools), and reports such as the one released by NAIS and TABS are all potential sources for standards of care. The Task Force report is clear that some of the recommendations may be out of reach for some schools. That being said, many of the recommendations are accessible and common within the industry. Schools should be thoughtful in how they review and implement the standards in their own programs. 
 

In the Future

Independent schools as an industry must take serious and thorough action to properly manage the risks associated with educating students. As caretakers of children, we must understand the particular risks that educator sexual misconduct represents and take all appropriate steps to manage that risk to the best of our ability. Furthermore, through investigations, greater transparency, reparations, and other work, we must understand and reconcile past behavior of adults within our communities. We cannot change history, but we can address it appropriately and work to ensure that child safety is paramount now and in the future.
Author
Debra P. Wilson

Debra P. Wilson was most recently general counsel for NAIS and will be the president of the Southern Association of Independent Schools as of July 1, 2019.