• Key point.Negligence as a Basis for Liability A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.
A federal appeals court ruled that a school was not liable for the molestation of two young girls by a teacher despite the fact that it was aware of a prior, similar complaint by another girl because the school thoroughly investigated the prior complaint, concluded that it was unsubstantiated, and took appropriate steps to monitor and restrict the employee. A seventh-grade teacher (“Kevin”) at a public school sexually molested two teen-age girls during a school year. Kevin would tell the victims, individually, to meet him in empty classrooms, the physical education equipment room, the teacher’s bathroom, or other places where no one could observe what he was doing. The victims never told their parents or anyone at school what was happening while the events were occurring. At the end of the year, one of the victims told a friend that Kevin was touching her inappropriately. The friend told a police officer who lectured at the school, and the police began an investigation into Kevin’s contact with students. As a result, Kevin resigned from his post. He was later convicted on six counts of child molestation and sentenced to a 20-year term of imprisonment. Following his conviction, the victims sued the school. A trial court found Kevin liable and assessed damages at $600,000. However, the court dismissed the claims against the school on the ground that there was no evidence that any school official with supervisory authority knew or should have known that Kevin was molesting the victims. The victims appealed. They insisted that the principal and other school officials were aware of facts sufficient to alert them to Kevin’s misconduct and that the school’s response was clearly unreasonable in light of the known circumstances. Specifically, the victims pointed to an incident during a touch football game in a physical education class. A female student (“Heather”) was playing center, and Kevin was the quarterback. On one play, Heather felt Kevin “touch her behind” as she hiked the ball. Later, after the class had ended, Heather was getting a drink from the water fountain when Kevin “tried to touch” her inappropriately. The following day, Heather and her mother came to school to discuss Kevin’s behavior with the principal. Heather told the principal that Kevin had asked her to “come closer” toward him when hiking the football, and that, on the next play, he had touched her behind as she hiked the ball to him. She also told the principal that Kevin had tried to touch her at the water fountain after the game, but she moved out of the way. According to Heather, Kevin did not actually make contact with her at the water fountain.
The appeals court concluded that Heather’s complaint was not sufficient to alert the principal to the possibility that Kevin was sexually molesting the victims. It observed, “Heather complained to the principal about a slight touching during a touch football game in which she was playing center and Kevin was playing quarterback. Afterwards, at the water fountain, Heather thought that Kevin was about to touch her, but she moved away. Although we can understand a parent’s misgivings about a coach playing quarterback with a female student playing center, Heather did not suggest that it was inappropriate. We agree with the trial court that a complaint of an incidental touching during an athletic event and a perceived imminent touching could not, as a matter of law, apprise [the school] to the possibility that Kevin was sexually molesting the victims. Furthermore, even if such a complaint were sufficient to constitute actual notice, the school responded with anything but deliberate indifference.”
After meeting with Heather and her mother, the principal contacted his supervisor, who suggested that the principal have the school counselor and the school social worker investigate the complaint. These two individuals interviewed Heather as well as other students, and concluded that Kevin inadvertently touched Heather during the football game and that Heather “perceived” that Kevin tried to touch her after the game at the water fountain. The principal then arranged a meeting with Heather, her mother, and Kevin. Heather recounted her allegations, but Kevin denied any intent or attempt to touch her. The principal invited Heather’s mother to ask questions, but she didn’t have any.
The court concluded that “even though the investigation failed to reveal reasonable evidence of inappropriate conduct by Kevin, the principal took immediate corrective action.” He removed Heather from the P.E. class with Kevin, offered to transfer her to another school, instructed Kevin to avoid all contact with Heather and also prohibited him from being alone with Heather or any other female student. The principal followed up with Heather several times throughout the school year, but she had no further complaints. The principal also monitored Kevin for any indiscretions, but he never observed him alone with female students. The court concluded, “Although ultimately ineffective in preventing Kevin from [molesting the victims], the relevant question is whether the principal’s actions amounted to deliberate indifference. We hold, as a matter of law, that they did not.”
Application. This case is important because it addresses the significance of prior, unsubstantiated allegations of sexual misconduct by an employee. It is common for churches to receive such allegations. But, this case demonstrates that a school or church is not necessarily liable for future acts of sexual misconduct by such a person if it (1) thoroughly investigated the allegations, and (2) takes appropriate steps to follow up with the alleged victim and restrict the behavior of the alleged offender. The principal’s response in this case to Heather’s complaint serves as a useful example for church leaders. Davis v. DeKalb County School District, 233 F.3d 1367 (11th Cir. 2000).
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