Child Abuse

Richard Fossey
Encyclopedia of Education Law. Ed. Charles J. Russo. Vol. 1. Thousand Oaks, CA: SAGE
Publications, 2008. p155-157.
Hak Cipta: COPYRIGHT 2008 SAGE Publications, Inc.
Halaman 155

Child Abuse
Child abuse is a major problem in the United States. Researchers began calling attention to
the issue in the 1970s, and today all 50 states have laws in place that require educators to
report suspected child abuse or neglect to law enforcement officials or child protection
agencies. In addition, sexual abuse of children in school settings is now recognized as a
serious and recurring problem. Child victims have sued school boards under a variety of
theories for sexual abuse perpetuated by teachers or other school employees. This entry looks
at both kinds of abuse as related to education.

Scope and Nature

It is impossible to know how many children are victims of sexual or physical abuse, because
definitions of abuse vary somewhat from state to state, a large number of incidents go
unreported, and not all reported cases are investigated or substantiated. According to the
National Child Abuse and Neglect Data System (NCANDS), child protective service
agencies and other social service agencies received approximately 3 million referrals of child
abuse or neglect in 2004. These agencies confirmed that 872,000 of these referrals involved
victims of actual abuse or neglect. NCANDS data indicated that almost four out of five
perpetrators were parents.

Medical experts agree that many who are sexually abused as children experience serious
health consequences that can last a lifetime. Long-term injuries include anxiety, depression,
impaired cognitive functions, suicidal ideations, low self-esteem, and post-traumatic stress
disorder. In her book Trauma and Recovery, psychiatrist Judith Herman wrote that children
who are abused by caregivers sometimes develop destructive attachments to their abusers that
prevent them from reporting the abuse. In fact, when questioned about possible abuse,
victims may lie to protect their abusers. In school settings, this phenomenon makes it difficult
for educational authorities to investigate their suspicions of child abuse.

Child Abuse Reporting

California enacted the first child abuse reporting law in 1967. In 1974, Congress passed the
Child Abuse Prevention and Treatment Act (CAPTA), establishing the National Center on
Child Abuse and Neglect while providing financial incentives for states to develop programs
to identify and prevent child abuse and neglect. Partly due to CAPTA, all states now have
laws in place requiring certain individuals to report suspected child abuse or neglect.

Even though child abuse reporting laws differ from state to state, all of them protect child-
abuse reporters from civil liability for making reports in good faith. All states provide civil or
criminal penalties for persons who are mandated to report child abuse and neglect but
knowingly fail to do so. Persons who are mandated reporters under these laws include health
care workers, educators, and mental health professionals. In most states, child abuse reporting
requirements take Halaman 156  |  Ke Atas Artikelprecedence over various legally recognized
privileges of confidential communications. Accordingly, school counselors may be required
to report suspected child abuse or neglect that they learn about in otherwise privileged
conversations with clients. In every state, teachers, principals, and other school board
professional employees are required to report suspicions of child abuse and neglect that they
come across in the course of their professional duties.

In spite of the child abuse reporting laws and the legal penalties in place for failing to report,
researchers have documented that mandated reporters-including teachers-do not report all the
child abuse that they suspect. Teachers are more likely to report their suspicions of physical
abuse rather than sexual abuse, perhaps because the indications of physical abuse are more
readily apparent than the signs of sexual abuse. Motives for failing to report are varied and
include concern about disrupting relationships with the families of children, lack of faith in
investigative agencies, fear of litigation, and pressure from peers and supervisors not to
report.

In most states, laws direct reporters to contact their child protection agencies if the abuse
takes place in homes. Abuse by persons outside of homes is generally reported to law
enforcement authorities. Most states have laws protecting the confidentiality of child abuse
reports.

School District Liability for Sexual Abuse

It is now universally recognized that sexual predators may be school employees who use their
positions to get access to children for purposes of sexual abuse. Estimates of the prevalence
of sexual abuse in schools vary widely. In a report commissioned by the U.S. Department of
Education, Charol Shakeshaft noted that teachers whose job description includes time with
individual students, such as music teachers and coaches, are more likely to sexually abuse
students than other teachers.

Increasingly, the student victims of school-employed sexual predators are suing school
boards and their supervisory employees. Until the 1990s, almost all of these suits were
brought in state courts with victims alleging negligent hiring or negligent supervision of the
abusive employee. Sometimes plaintiffs sued under agency principles, charging school
boards with vicarious liability for the conduct of their employees. In many states, boards
enjoy statutory immunity from these suits. In some jurisdictions, courts have ruled that
boards cannot be vicariously liable for sexual misconduct of their employees with children,
because such acts are outside the scope of the employee's employment.

Due to the difficulty of prevailing in state courts under common-law negligence theories,
some plaintiffs have elected to sue school systems in federal court, alleging constitutional
violations based on the sexual misconduct of school employees. At least two federal circuit
courts recognized a constitutional cause of action against school boards in these situations. In
Stoneking v. Bradford Area School District (1989), the Third Circuit ruled that students have
a constitutional right to be free from sexual molestation by teachers. Here a female high
school student alleged that she was the victim of sexual abuse by the school's band director
over a period of several years. In addition, the student claimed that school administrators
knew about the band director's conduct yet failed to act. The Third Circuit reasoned that the
student's allegations, if true, were actionable as a violation of her constitutional rights.

In 1994, in Doe v. Taylor Independent School District, the Fifth Circuit reached a similar
outcome. At issue was the allegation that a school principal acted with deliberate indifference
to numerous indications that a teacher was sexually involved with a 14-year-old female
student. The court reasoned that the student had a well-established constitutional right to
bodily integrity and that sexual molestation by a teacher is a violation of that right. The court
concluded that the principal could be personally liable if it were found that he had acted with
deliberate indifference to his subordinate's violation of the student's constitutional rights.

Title IX of the Education Amendments of 1972 prohibits sex discrimination in educational

institutions that receive federal funds. Based on judicial interpretations of the law, it is now
well established that sexual abuse of a student by a public school employee is a violation of
Title IX. In Franklin v. Gwinnett County Halaman 157  |  Ke Atas ArtikelPublic Schools
(1992), the U.S. Supreme Court ruled that a victim of sexual harassment could sue a school
board for money damages. Not surprisingly, litigation in this area has increased in its wake.
In Gebser v. Lago Vista Independent School District (1998), the Court clarified the standard
for assessing Title IX liability against school boards when their employees sexually molest
children. Boards are not liable for such acts, the Supreme Court decided, unless school
officials with supervisory authority have actual knowledge of the abuse and respond with
deliberate indifference.

Many states now require school boards to conduct criminal background checks of job
applicants in order to identify convicted child abusers who seek school employment. Some
states require school officials to notify their state teacher-licensing agencies of any child
abuse allegations that are made against teachers.

Educators are becoming increasingly aware of the “mobile molester,” school employees who
resign their positions under allegations of child abuse and later obtain employment in other
districts. Often, school officials aid these mobile molesters by writing good letters of
recommendation on the condition that the accused employees resign from their positions. In
Randi W. v. Muroc Joint Unified School District (1997), the Supreme Court of California
ruled that a student victim of a vice principal's sexual abuse could sue the perpetrator's
previous school board employer for negligent representation and fraud based on allegations
that officials wrote positive letters of recommendation on his behalf while knowing that he
was dangerous to children.

Claims against school boards arising from the sexual abuse of children by school employees
are on the increase. Yet, school systems often escape liability, because plaintiffs find it
difficult to prove that school authorities knew that employees were molesting children. For
this reason, courts are often reluctant to render educational officials and boards liable for the
aberrant behavior of sexual deviants who happen to be school employees.

Richard Fossey

See also Franklin v. Gwinnett County Public Schools ; Gebser v. Lago Vista Independent
School District ; Negligence ; Title IX and Sexual Harassment
 Further Readings
Fossey, R. (1993). Law, trauma, and sexual abuse: Why can't children protect themselves?
West's Education Law Reporter, 91, 443-454.

Fossey, R., & DeMitchell, T. A. (1997). "Let the master answer": Holding schools
vicariously liable when employees sexually abuse children. Journal of Law and Education,
25, 575-599.

Herman, J. (1992). Trauma and recovery. New York: Basic Books.

Horner, J. (1995). A student's right to protection from violence and sexual abuse in the school
environment. South Texas Law Review, 36, 45-57.

Pence, D. M., & Wilson, C. A. (1994). Reporting and investigating child sexual abuse. The
Future of Children, 4(2), 70-83.

Shakeshaft, C. (2004). Educator sexual misconduct: A synthesis of existing literature.

Washington, DC: U.S. Department of Education.

Legal Citations
Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101 et seq.; 42 U.S.C. §§ 5116 et
seq.

Doe v. Taylor Independent School District, 15 F3d 443 (5th Cir. 1994).

Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998).

Randi W. v. Muroc Joint Unified School District, 929 P2d 582 (Cal. 1997).

Stoneking v. Bradford Area School District, 882 F2d 720 (3d Cir. 1989), cert, denied, 493
U.S. 1044 (1990).

Kutipan Sumber   (Edisi ke-8 MLA) 

Fossey, Richard. "Child Abuse." Encyclopedia of Education Law, edited by Charles J. Russo, vol.
1, SAGE Publications, 2008, pp. 155-157. Gale Virtual Reference Library,
http://link.galegroup.com/apps/doc/CX3073700083/GVRL?
u=idpnri&sid=GVRL&xid=9df46749. Accessed 7 Apr. 2018.