By Perry Zirkel
Principal, March/April 2013

Sexual harassment has become a major source of education litigation. In these cases, the alleged harasser is a school employee (most often a teacher), and the frequency of these liability suits calls to mind the recent tragic spate of clergy abuse cases. Similar to the church practice revealed in some of these cases, the disturbing “solution” in some school cases is to move the teacher to another school.

In some cases, the move is to another district, with the original dis­trict’s action limited to sanitizing the teacher’s record. Known colloquially as “passing the trash,” this practice allows the teacher to resign, some­times with a neutral or “false positive” letter of recommendation or other employment verification document that does not reveal the opprobrious conduct, thus facilitating the teacher’s employment in another district.

The following case illustrates this practice and the resulting litigation initiated by the victims in both the first and second districts. For the plaintiffs in the first district, the lead­ing (but far from exclusive) avenue of litigation is Title IX, the federal legis­lation prohibiting sex discrimination. The Supreme Court established the applicable liability standards in Gebser v. Lago Vista Independent School District (1998), in which a school official with authority to make corrective action had actual knowledge and displayed deliberate indifference to the employ­ee-on-student sexual harassment. The plaintiffs in the second district have similarly sued under Title IX and various state common law torts, particularly simple negligence and the higher level of willful and wanton misconduct.

The Case^*
For three school years starting in September, 2002, Jon White was a first-grade teacher at two elementary schools in McLean County School District in Illinois. Within the first two years of this period, administra­tors in McLean, including White’s principals, became aware, via com­plaints from at least three parents, of White’s verbal and/or physical sexual improprieties with female students in his charge. The following year, parents similarly asserted, based on reports from their children, that as part of a special project on Helen Keller, White selected volunteers from among his female first graders, locked them in the classroom with him during lunch and recess, and then—with blinds closed—blindfold­ed the girls and engaged in physical contact with them for his sexual grati­fication. District records, including White’s personnel file, do not reveal any investigation or reporting of these incidents. However, in October 2004, and April 2005, the administra­tion removed him from his class­room for “sexual harassment, sexual grooming, and/or sexual abuse” of female students. Prior to the end of the 2004-2005 school year, the district entered into a severance agreement with White that allowed him to resign and that included a positive letter of reference and no mention of this sexual misconduct.

In August 2005, the school dis­trict in Urbana, Illinois, which is approximately an hour and a half away, hired White as an elementary school teacher, relying in part on the McLean “Verification of Employ­ment Form” that concealed his disci­plinary removals from his classroom and his severance before the end of the third school year. During the 2005-2006 school year, White sexu­ally abused female students in his first-grade class.

In separate suits, two pairs of White’s former students in the McLean school district filed suit, ulti­mately in federal court, against the McLean district, five of its administra­tors (including the two principals), and White, alleging violations of both federal and state law. The federal claims primarily focused on Title IX, for which the Supreme Court has established a “deliberate indifference” standard for liability, although the suits also included alleged constitu­tional violations, specifically Fourth Amendment seizure and 14th Amend­ment substantive due process. The state claims involved various common law torts, including negligence.

Additionally, a female student in Urbana filed suit in federal court against not only the Urbana school district, but also the same McLean defendants, and other Urbana victims filed suit in state court against these McLean defendants. Urbana resolved its part of the first suit via settlement, thus leaving the focus on the McLean defendants in relation primarily to Title IX. The state court litigation focused on the aggravated-negligence claim of willful and wanton conduct, specifically that the McLean defen­dants had “passed” White to the Urbana district by misrepresenting his employment record.

What do you think were the federal court decisions in the pair of suits by the McLean parents?
The federal court rulings represented mixed outcomes, with inconclusive rulings in favor of the plaintiff parents for some of the federal claims, includ­ing Title IX, and, to a lesser extent, the state torts due to the extensive cover­age of the state tort immunity law.

First, in Doe 20 v. Board of Education of Community Unit School District No. 5 (2010), the federal district court denied the defendants’ motion to dis­miss the federal claims under Title IX and the Fourth Amendment and the state claims for negligent infliction of emotional distress, thus preserv­ing them for further proceedings (or settlement). On the other hand, the court dismissed the 14th Amendment substantive due process claim as not meeting the requisite “shocks the con­science” standard and the negligent hiring and reemployment standards due to the coverage of the state tort immunity act, which provides school districts with immunity (i.e., non liability) for negligence based on dis­cretionary and supervisory actions.

Second, in Doe v. White (2010), the federal court limited its rulings to selected state tort claims. Specifi­cally, the court dismissed the claim of negligence based on premises liability due to the state’s immunity act for governmental agencies, including school districts and their employees. However, the court denied the motion to dismiss the claim of willful and wanton indifference to sexual harass­ment, which the immunity act does not cover.

What do you think was the federal court decision in the suit by the Urbana parents?
In Doe-2 v. McLean County Unit District No. 5 Board of School Directors (2010), the Seventh Circuit Court of Appeals affirmed the dismissal of the Title IX claim because the McLean school authorities lacked the requisite control to take remedial action for White’s sexual misconduct in the Urbana school district, which are the required elements for liability under the Supreme Court’s Title IX “deliber­ate indifference” standard. Exercising its ancillary jurisdiction for the state claims, the federal appellate court concluded that the McLean school authorities lacked the requisite legal duty for liability under state tort law for White’s injurious behavior in Urbana. The court added this comment:

We emphasize that nothing in our decision today should suggest that school districts can quietly shuffle abusive teachers on to the next district with impunity. [The state child abuse reporting act] imposes criminal penalties for willful viola­tions of its reporting requirements … which we trust will give Illinois school officials an extra incentive (if they needed one) to disclose their teachers’ known acts of sexual harassment.

What do you think was the state court decision in the suit by the Urbana parents?
In Doe v. McLean County Unit District No. 5 Board of Directors (2012), Illi­nois’ highest court reversed the trial court’s dismissal of the claim of willful and wanton conduct, which had been based on a finding that the McLean defendants owed no legal duty to the Urbana plaintiffs. In rul­ing that the McLean defendants did have the requisite legal duty, the state Supreme Court first rejected these three asserted bases: failing to warn Urbana of White’s conduct, failing to report White’s conduct to authorities, and creating a false letter of recom­mendation. For the first two bases, the court found that the fatally miss­ing element was a legally recognized “special relationship” between the McLean defendants and the Urbana plaintiffs. For the third basis, the court concluded: “If no recommenda­tion letter was sent to, or received by, Urbana, the creation of that letter cannot form the basis for a duty on the part of defendants.”

Next, the court ruled on the defendants’ actions in not only creat­ing but also sending to Urbana the misrepresented employment verifica­tion form. The court found that the public policy of protecting children, particularly from the dangers of sex offenders, to add weight in favor of finding a legal duty in these circum­stances. Finally, the court concluded that the state’s tort immunity act applies to simple negligence, but not to the willful and wanton conduct. Although five of the seven judges agreed that the defendants had the requisite legal duty for willful and wanton conduct, three of them questioned the relevant reach of the state’s tort immunity act.

Have courts in other jurisdictions addressed the issue of whether such “passing” gives rise to legal liability to victims in the next district?
Yes, to a limited extent. In Randi W. v. Muroc Unified School District (1997), the California Supreme Court ruled that such conduct could form the basis for tort liability for fraud or negligent misrepresentation. Most recently, in Shrum v. Kluck (2011), the Eighth Circuit Court of Appeals reached the same conclusion as the Seventh Circuit did in ruling that the “passing” district did not have sufficient control over the teacher, student, and the place of the abuse to incur Title IX liability for the subse­quent sexual molestation.

Conclusion
The Illinois Supreme Court’s deci­sion in McLean and the previous rulings in California merit the careful attention of school leaders. They establish what may be a judicial trend toward establishing the basis for tort liability of school districts and their administrators for engag­ing in the practice of “passing the trash.” On the other hand, these decisions are limited not only in their geographic scope but also their actual outcomes to date.

As the various decisions to date reveal, the judicial outcomes will depend not only on the particular proof in the case, but also the specific interpretations of the law in each state. For example, the scope of tort immunity for school districts and their personnel varies widely from state to state.

Nevertheless, the several suits spawned in this case reveal that school officials, clearly including elementary principals, need to take more direct and proactive action against employ­ees who engage in offensive conduct that harms children. This issue is central to the ethics of the profession, regardless of the course of liability litigation.

Perry A. Zirkel is university professor of education and law at Lehigh University in Bethlehem, Pennsylvania.

*Due to the pretrial posture of the case, the parents’ allegations are conditionally accepted as true, although the facts may well be different upon a trial.

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