Published in The Association of Boarding Schools's (TABS) "KeepingTABS" blog (3/17/2016)
Recently, the responses of independent schools to reports of past abuse of students by faculty have received intense scrutiny by the news media, social media, survivors, victim’s lawyers and alumni. Why is this happening now?
I believe we are in a period of cultural change in which there is a convergence of attitudes and expectations relating to sexual abuse of students, without regard to when it occurred or whether the abuser was an adult or another student. Attitudes and expectations about the extent and nature of sexual abuse of students have evolved dramatically and swiftly in the past few years, spurred by the federal government’s focus on Title IX violations in colleges and universities. Students, parents, alumni and the media now see student sexual assault in colleges as a systemic issue, rather than a school-by-school issue. Victims have formed survivor groups to provide support and advocacy. Prevention efforts have proliferated and have received bi-partisan support locally and nationally.
Starting a few years ago, recent graduates who were going through Title IX orientations at their new colleges began sharing what they learned with their friends still in prep schools. Soon, attitudes and expectations around the issues relating to student sexual assault had spread from colleges to independent schools. A substantial increase in reports of sexual assaults in independent schools followed. Subsequently, independent schools have strengthened their policies on sexual misconduct and significantly expanded their prevention and education efforts.
Today’s independent school students, parents and alumni are highly aware of and concerned about issues relating to sexual assault of students. They expect all schools to address the issues comprehensively, from prevention to response. They have basic expectations about how reports of sexual abuse of a student will be handled. For example, they expect that allegations of abuse will be investigated. They expect victims to be supported and perpetrators to be punished. They want assurances that the school is safe and that the administration is doing all it can to prevent abuse. Student victims of sexual abuse no longer feel so isolated. Survivors groups provide support and advocacy. Discussions over social media are common and robust. Articles and reports are constantly in the news.
Not surprisingly, survivors of past abuse are receiving acknowledgement and support from present-day survivors. Survivors from the past are starting to find a voice on social media. Some are banding together to pressure their schools to examine their pasts. Some groups have even taken legal action against schools. Essentially, these survivors want schools to respond to past sexual abuse by faculty in the same ways they are dealing with present day sexual abuse.
This convergence of attitudes and expectations significantly impacts how schools handle past abuse cases. The potential for significant damage to a school’s reputation for missteps is higher than ever. It is therefore crucial to involve the Board of Trustees from the start and to keep the Board up to date so it can carry out its duty of oversight. At the same time, the Board needs to be cognizant of its role and not attempt to micromanage the administration’s actions.
Given the changing attitudes about past abuse, more victims have been willing to come forward. Schools now have an opportunity to be proactive by looking into their past. Some schools are affirmatively attempting to identify possible past cases of abuse by reviewing old files and interviewing past administrators. Schools that do not act face the risk of being accused of failing to confront their past.
Independent schools are being increasingly scrutinized for whether they comply with state reporting laws related to sexual abuse of minors. Most schools have robust training on mandatory reporting and have put in place policies and procedures to assure reporting compliance. With regard to reports of past abuse, it is crucial that schools know what their reporting obligations are. Even if reporting current notice of past abuse is not mandated, schools should decide whether to voluntarily report. Increasingly, schools are being criticized for not informing child protective services or the police of reports of past abuse. A major concern is that past perpetrators may have gone on to work at other schools where other students may be at risk.
Survivors, alumni and parents expect allegations of abuse, past or present, to be meaningfully investigated. In cases involving serious allegations, there is a greater expectation that a school will retain an outside, independent investigator. In such cases, schools should assure the independence of investigations, both in actuality and appearance. Schools should determine in advance the scope of investigations and how findings will be shared.
The expectations of victims of past abuse vary greatly. Some want compensation. Some want assistance with counseling. All want assurances that policies and practices are in place to reduce the likelihood of similar abuse. To the extent possible, schools and Boards should consider, in advance of receiving complaints, what options, including financial payments, are available. This includes researching possible insurance coverage for past abuse. Closely related is the issue of the applicable statutes of limitations. In each case, the civil and criminal statutes of limitations should be researched. But even when criminal prosecution or civil litigation is precluded by statutes of limitations, schools and Boards should consider what is the “right” thing to do in each case.
I believe that independent school communities, including students, parents and alumni, along with the news media and those active on social media, are increasingly expecting independent schools to respond to reports of past abuse in the same way they respond to present reports, regardless of whether the perpetrator is an adult or a student. They expect the reports to be promptly investigated and appropriate remedial action to be taken. They expect the school to be transparent and accountable in its response. Schools that are not alert to these attitudes and expectations, and are not prepared to act accordingly, are at risk of significant adverse legal repercussions and damage to their reputations.
David Wolowitz is the co-chair of the McLane Middleton law firm’s Education Law Practice Group. His practice focuses on the representation of independent schools. He is a pioneer in introducing training on professional boundaries to independent schools. David regularly consults with schools nationally and internationally on issues relating to student safety, risk prevention and crisis response.