Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.
A California appeals court ruled that a woman who was sexually molested by a teacher at the public school she attended as a minor could not sue the school on the basis of negligent hiring for her injuries, but could sue it for negligent supervision.
Background
An adult male (the “defendant”) applied for employment with the Los Angeles Unified School District (LAUSD) in June 2003. The defendant’s job application listed his employment history but did not disclose his previous employment with the Long Beach Unified School District in 1993, or that he had been discharged from this position after being arrested for sexual battery.
At the time the defendant applied to LAUSD, its application asked applicants to report all prior criminal convictions or pending court cases. But state law prohibited employers from asking applicants to disclose prior arrests that did not result in a conviction.
The defendant’s application identified a 2001 conviction for driving under the influence, which was not disqualifying under LAUSD policy. He did not disclose his arrest on suspicion of sexual battery in December 1993 or the underlying circumstances.
In his application, the defendant answered “No” in response to the question, “Have you ever been dismissed from, or not reemployed by, a public or private school while holding any teaching/non-teaching position(s), or while in any other type of employment?”
LAUSD staff reviewed the defendant’s application, interviewed him in person, conducted reference checks, and confirmed the defendant qualified for California teaching credentials. LAUSD staff contacted the defendant’s listed character references by telephone. One of the references was a school official who had supervised the defendant’s student teaching and who rated the defendant as a “5” (the highest level) in overall teaching effectiveness and stated that the defendant “demonstrated many outstanding qualities of a young teacher.”
LAUSD subsequently placed the defendant on the teacher hire eligibility list, pending obtaining his background clearance. For the defendant’s student-teaching job, LAUSD had previously fingerprinted him and submitted his fingerprints to the Federal Bureau of Investigation and the State Department of Justice (DOJ) to have these entities conduct nationwide searches for any prior criminal convictions or pending cases. LAUSD’s Human Resources re-fingerprinted the defendant upon his application for permanent employment and again submitted his fingerprints to the DOJ. The defendant obtained a California Teaching Credential on August 22, 2003, and was cleared for employment.
The defendant was hired as a middle school teacher in 2005, and soon met a 14-year-old student (the “victim”). Over the course of the next four years, the defendant engaged in repeated acts of grooming and sexual contact with the victim.
In May of 2008, an anonymous caller reported to the school principal that she had observed the defendant picking up a female student in the morning and dropping her off at school. The principal was concerned that he was violating LAUSD policy prohibiting teachers from giving students rides without parental consent.
The principal contacted the child abuse unit at the local police department to make a Suspected Child Abuse Report over the phone. The defendant was suspended from teaching the same day.
The school police launched a criminal investigation into the facts and circumstances to determine if a crime had occurred. They interviewed the defendant, who stated he had been tutoring the victim in math and had picked her up from her home on some occasions with the permission of her mother. In addition, the defendant said the school’s flag team coach had asked him for his assistance in coaching the team, and he had sometimes transported some of the flag team girls to and from events.
The school police also interviewed the victim who said she considered the defendant a “friend only” and he, in fact, frequently gave her rides. She said the defendant picked her up from an intersection near her home, and her mother knew this and had no problem with it. She said her father did not know and he would get “mad with me and my mother” if he found out. She said the defendant was tutoring her in math and helping with her flag team.
The principal felt that “something fishy was going on.” He met with the victim and her mother. During this meeting, the victim said that the defendant had taken her to a restaurant, but only when she needed help with her history class. She told the principal that the defendant would take her to school in the morning when she had lots of “books and stuff” to carry, and he would give her rides home from flag practice when it was dark. He would pick her up at the corner instead of her house because she did not want her father to know.
The principal recommended dismissing the defendant for his “failure to follow school policies and procedures and poor judgment in dealing with students.” However, LAUSD determined that “the acts committed by the teacher did not support a recommendation for dismissal.” Instead, LAUSD suspended him for 15 days (later reduced to 10 days) without pay and issued him a Notice of Unsatisfactory Acts for failing to follow LAUSD policies by transporting female students to and from events involving the flag team without having approval from the school administration.
LAUSD instructed the defendant to avoid transporting students in his personal vehicle without proper written permission from school administration and from parents. LAUSD also admonished him not to accompany students off campus, except as part of authorized school activities. LAUSD reassigned the defendant to another school.
In 2012, when she was 18 years of age, the victim informed the police of the defendant’s conduct upon learning that he was seeing another female student. The police conducted a sting operation with the victim’s assistance and ultimately arrested the defendant who later was convicted of two counts of lewd and lascivious acts with a child.
The victim sues LAUSD
The victim sued the LAUSD, arguing that its employees knew or should have known of prior complaints at the other school about the defendant engaging in unlawful sexual touching and indecent exposure, and they negligently ignored facts indicating that the defendant “had the propensity to sexually abuse minors and was in fact likely sexually abusing [the victim].”
The lawsuit claimed that the school district was therefore liable for the defendant’s actions on the basis of negligent hiring, negligent supervision, and negligent retention. The lawsuit also alleged that school district employees owed the victim a duty to protect her from sexual abuse and to enforce policies designed to protect children from sexual abuse.
Declaration from expert witness details “standard of care”
The LAUSD asked the trial court to dismiss the case. In opposition, the victim submitted to the court a written declaration from an expert witness who was a professor of educational administration with experience in evaluating and developing school policies for preventing educator sexual misconduct and harassment.
The professor’s declaration included her opinion as to “the standard of care” for screening the backgrounds of prospective school employees in order to prevent child sexual abuse. She concluded:
- Those interviewing candidates for such positions should inquire as to their previous work experience, including gaps in their employment timelines.
- Candidates for employment and their references should be explicitly asked if the candidates had been previously accused of sexual misconduct.
- In addition, reference checks should extend beyond the individuals on the candidate’s list of references on his employment application.
- LAUSD should have asked the defendant about the 13-year period in which he stated he was self-employed as a cabinet maker.
- LAUSD also should have asked the defendant if he had ever worked for another school and if he had ever been investigated for or accused of sexual misconduct.
- Schools and school districts need clear policies and regulations that “describe educator sexual abuse, detail acceptable and unacceptable behavior, provide mechanisms for reporting, guide students, teachers, administrators, and parents in prevention, describe a system of investigation, and describe the consequences. These policies should provide guidance in identifying and reporting behaviors that might indicate sexual exploitation and make it clear that the entire school family is responsible for identification and reporting.”
- School policies should address communications between teachers and students outside of school, prohibit employees being alone with students in closed rooms, and require any after-hours tutoring to be in a public and supervised location.
- Schools and school districts should conduct annual trainings for all employees focused on adult-to-student sexual misconduct, the signs of such misconduct, and investigation practices. She concluded that “if LAUSD employees had received adequate training on educator misconduct, they would have been better able to recognize and address the defendant’s behavior and better protect the victim and other students.
- LAUSD’s level of supervision on school grounds was inadequate. She noted that “sexual abuse of students is diminished through active supervision of the school,” including “hall sweeps, checking classrooms at lunch and before and after school to make sure that an adult is not alone with a child.”
- Increased supervision was necessary for employees who consistently crossed boundaries, hung out with students regularly, or drove them in their cars.
- Teachers must know where their students are during class time. If policy violations are discovered by employees, they should understand their responsibility to report to administration.
The professor concluded that “based on the above standard of care, LAUSD did not adequately supervise” the defendant or other employees, the school premises, or the victim. In particular, she noted that “regular checks of rooms when class was not in session would have likely uncovered the private meetings between the victim and defendant.
The trial court dismissed the case against the defendant citing a lack of evidence to prove negligent hiring, supervision, or retention. The victim appealed.
The appeals court’s decision—negligent hiring
With regard to negligent hiring as a basis for liability, the court observed: “A defendant may be liable for negligent hiring if it knows an employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him.”
The court referenced a decision of a California appellate court in Evan F. v. Hughson United Methodist Church, 10 Cal.Rptr.2d 748 (Cal. 1992). In Evan F., a church hired a pastor who had previously sexually abused a child. The pastor molested a young boy in the church.
Although the church did not have actual knowledge when it hired the pastor of his prior sexual abuse, it had become “aware of some difficulty” with the pastor’s reappointment to the active ministry and understood he had been on a sabbatical. Nevertheless, the church did not make any inquiry regarding the pastor’s past or his fitness to serve. A trial court dismissed the plaintiff’s negligent hiring claim against the church, and a state appeals court agreed.
The California appellate court in the case involving LAUSD noted:
We conclude that the trial court correctly found no reasonable jury could find LAUSD liable on the victim’s negligent hiring theory. Unlike in Evan F., where the church knew there had been some problems with the pastor in the past and thus should have investigated further, none of the available information about the defendant reasonably should have given LAUSD any cause for concern. He had just finished student-teaching, and his supervisor gave him a superlative review. A professor and an administrator at his college program had also vouched for him. Because he omitted his employment with the Long Beach Unified School District and did not list any other work experience in a school setting on his application, it was reasonable for LAUSD to assume he did not have any other experience working at a school and pointless to ask this question. In the absence of any clue at the time that the defendant had not been truthful or had misconduct in his past, there was no reason to probe further. . . .
Finally, we disagree that LAUSD could reasonably be faulted for not asking the defendant about whether anyone had previously accused him of sexual impropriety. LAUSD had run two background checks using his fingerprints, which yielded only a conviction for driving under the influence. LAUSD was prohibited under Labor Code section 432.7 from asking about prior arrests that did not result in a conviction. The defendant answered “No” to the question asking if he had been dismissed from or not reemployed by any school or any other type of employment. Although he testified at his deposition that he would have “told the truth” if LAUSD had asked him about his arrest while working for the Long Beach school, this does not mean that LAUSD was negligent for not ferreting out information about his prior arrest and misconduct in another district and questioning him about it. We conclude no reasonable jury could find LAUSD was negligent in failing to make further inquiries when it had no reason to suspect anything problematic about the defendant or his background.
The appeals court’s decision—negligent supervision
The court concluded that the trial court erred in dismissing the negligent supervision claim against LAUSD. It noted that “ineffective supervision of a student, as well as the failure to use reasonable measures to protect a student from foreseeable injury from a third party, may constitute a lack of ordinary care on the part of those responsible for student supervision.” It further noted: “Reasonable minds could differ as to whether the school’s lack of supervision that allowed the defendant access to the victim for grooming constituted negligence for which LAUSD is vicariously liable,” and therefore the trial court erred in dismissing the negligent supervision claim against LAUSD.
What this means for churches
This case is instructive for church leaders for at least five reasons:
- California is one of 33 states that have adopted a “ban the box” law prohibiting employment applications from asking applicants to disclose prior arrests that did not result in a conviction. The defendant’s application did not disclose his arrest on suspicion of sexual battery in December 1993 or the underlying circumstances. Since the state’s ban the box law prohibited LAUSD from asking for this information, the LAUSD could not be found liable on the basis of negligent hiring as a result of its inability to obtain it. The same logic would apply to churches if forbidden by state law to ask job applicants about prior arrests. Note, however, that some exceptions exist under the ban the box laws in some states.
- The defendant’s job application identified a 2001 conviction for driving under the influence, which the court noted “was not disqualifying under LAUSD policy.” Every state requires criminal records checks for school employees, and identifies crimes that disqualify an applicant for employment. This can provide churches with a useful tool in identifying those crimes that disqualify applicants for employment. To the extent a church aligns its practices with those of the public schools (an agency of the state) it has gone a long way in establishing a defense in the event it hires an applicant.
- In May of 2008, an anonymous caller reported to the school principal that she had observed the defendant picking up the victim in the morning and dropping her off at school. The principal contacted the child abuse unit at the local police department to make a Suspected Child Abuse Report over the phone. The defendant was suspended from teaching the same day. The duty to report child abuse is triggered in most states by a reasonable belief that a minor is being sexually abused. In this case, the principal concluded that the anonymous phone call provided a reasonable belief that the victim was being abused.
- LAUSD had a policy prohibiting teachers from giving students automobile rides without parental consent. Such a policy is strongly recommended because so many incidents of child abuse occur off campus and are facilitated by the use of automobiles. The problem in this case was that this policy was not consistently enforced. To achieve the lowest risk, such a policy should not have a “parental consent” exception.
- The victim’s expert witness testified that LAUSD “did not adequately supervise” the defendant or other employees, the school premises, or the victim. The expert witness cited 11 grounds for her conclusion that are summarized above. They provide churches with excellent guidelines to examine their own policies and procedures for protecting minors from abuse.
C.A. v. L.A. Unified School District, 2019 WL 1649637 (Cal. App. 2019).
