Standard of care is a general expression of what constitutes care in professions such as medicine, nursing, education, or child care administration. In schools and other agencies responsible for the care and supervision of children, the professional standard of care is the ethical or legal responsibility of a professional to exercise the level of care, diligence, and skill that other professionals in the same discipline would apply in the same or similar circumstances. This, coupled with statutory requirements and case law, defines the care that an educational professional is responsible for providing to children which includes protection from child sexual abuse.

In the field of education administration and supervision, as in most professions, the standard of care changes over time. The standard regarding what constitutes sexual harassment and child sexual abuse has evolved over decades. At times, our firm is asked to review a case that took place a couple of decades ago or even longer. When addressing the question of whether a school or other child-related agency met the professional standard of care, we must determine what the accepted standard and practice was at that time of the alleged child sexual abuse or other harmful incident.

Evolution of the Standard of Care Regarding Sexual Harassment and Child Sexual Abuse

The current standard of care requires that a public or private school has clear policies prohibiting sexual harassment, that such a policy identifies a trained person to be notified with a complaint, and that it outlines and documents the investigative process and the results of the investigation. Before Title IX became law in 1972 and the Office of Civil Rights published declarative information to school administrators, standards of care varied. If an incident of sexual harassment or abuse occurred in 1968, the standards articulated in Title IX were not applicable as a matter of law. However, ethical and other community standards, as well as local board of education and agency policies and practices, may constitute the standard by which the behavior of professionals at that time can be judged.

The earliest standards defining the rights of children were reflected in the Declaration of the Rights of the Child, adopted by the United Nations General Assembly in 1959. This policy statement stressed 10 principles affirming the right of children to receive special protection, to be given opportunities and facilities that enable them to develop in a healthy and normal manner, to receive an education, and to be protected against neglect, cruelty, and exploitation, including child sexual abuse. This general edict became more specific as individual countries began to develop legislation regarding the care and protection of children and as case law began to define neglect, cruelty, and exploitation - including sexual exploitation and child sexual abuse.

Over the past 20 years, our society has become more aware of the problem of children being sexually harassed and abused by adults representing religious and educational organizations. Cases such as Franklin v. Gwinnett County Public Schools in 1992 an Davis v. Monroe County Board of Education in 1996 defined sexual harassment and identified how a school's complacency created an abusive environment depriving a student of educational benefits. The Supreme Court ruled in the Franklin matter that monetary damages could be awarded to individual victims of sexual harassment under Title IX and a school district could be held financially liable for a coach's predatory behavior toward a student athlete. In the Davis matter, the Supreme Court decision helped to clarify the definition of sexual harassment of one student toward another and further clarified the professional standard required of schools. The court held that a private Title IX damages action may lie against a school board in cases of student-on-student harassment - but only when the school has actual knowledge of sexual harassment that is so severe, pervasive, and objectively offensive that it effectively deprives the student of access to education and was deliberately indifferent to this activity.

Another Supreme Court case that further established the professional standard of care was Gebser v. Lago Vista Independent School District, a case that addressed the issue of teachers who engage in sexual relationships with students. In this case, the Supreme Court determined that school districts are not liable under Title IX for teacher-student sexual harassment unless a responsible employee actually knew of the abuse and had the power to end it but failed to do so. These cases, along with standards from the Office of Civil Rights of the Department of Education in the form of "Dear Colleague" letters, contributed to the evolution of standards.

Though educational institutions, including K-12 schools and university level institutions, became subject to Title IX regulations in 1972, it was not until Franklin, Gebser and Davis were decided in 1992, 1998 and 1999, respectively, that the Supreme Court would define how schools can be held accountable under Title IX for sexual harassment. For allegations that occurred within the intervening quarter century, it can be challenging to identify and define the professional standard of care. However, there are other statutes, such as state child abuse-and-neglect laws and board of education policies written within that time span, that can help to identify the professional standard of care. For example, California enacted its first child-abuse reporting law in 1963. Before then, there was no legislation that defined the professional standard of care, such as mandatory reporting of suspected child abuse and neglect. At that time, mandated reporters were subject to liability for making reports of abuse that turned out to be unfounded, and this thwarted reporting until the law was revised in 1980, when failure to report child abuse was criminalized and mandated reporters were given immunity for making reports. The California example has become the standard around the country. This is an example of how important it is to be aware of the prevailing professional standard when addressing the circumstances of a situation. Before the change in the California law, if a teacher had suspicion that a child was being abused, that person may not have reported it out of fear of reprisal. It doesn't make that right, but when looking at the failure to act on the part of a teacher, one must take into consideration the laws and standards at the time that often set the moral compass.

A prohibition of inappropriate sexual behavior was not mentioned decades ago in documents of the National School Boards Association, the American Association of School Administrators, or other recognized standard-setting organizations. Without a specific standard against which to compare what the administration of a school or agency did or failed to do, a plaintiff may have a more difficult time proving a breach of the standard. On the other hand, when there is statute, regulation, or policy identified within a specific timeframe and the allegation of abuse falls within an era in which these standards were acceptable in the field, then as an expert witness I am able to use those as benchmarks. When standards are in place, the plaintiff will have a better likelihood of successfully arguing that the standard was breached.

Case examples: Determining Standard of Care in Past Child Sexual Abuse or Harassment

When an attorney engages our firm to render an expert opinion about whether a school or other child supervisory agency in the United States or Canada may be liable for an alleged incident in the past, the complexities inherent in changing standards - such as the example of California law - require us to research and identify the standard of care at a specific time or period to render an opinion as to whether the school or agency met that standard.

For example, one of our case reviews involved alleged ongoing sexual harassment and child sexual abuse by a teacher between 1982 and 1989. A former elementary school student alleged that his teacher sexually abused him over that period while providing tutoring services at the student's home. My review of the professional standard of care at that time revealed that there was no standard, statute or regulation, or board of education policy that required the school to develop a policy regarding sexual harassment of students by employees or to provide training to employees regarding sexual harassment. Additionally, there was no board of education policy requiring the school to develop standards regarding the provision of tutoring. During this timeframe, the professional standard of care did not compel the school to monitor outside teacher-student relationships, including tutoring relationships that parents arranged for and approved. In comparing today's standard with that in the 1980s, one finds that because of the development of laws such as Title IX and the understanding that children are targeted by some teachers who sexually harass and abuse them, the standard of care is very different. Nowadays, the professional standard of care requires that schools provide employees with training on detection and prevention of sexual harassment, child sexual abuse and behaviors and ethical boundaries that cross the line of a typical teacher-student relationship. The opinion reached, following a review of testimony and documents, was that the school did not breach the professional standard of care at the time because none clearly existed.

Another case illustrates the challenges that exist when attempting to identify the professional standard of care over a period of time that might extend decades. This case was based on an allegation of physical, emotional, and sexual abuse of students with disabilities in a residential school. The timeframe of the allegations of abuse spanned from 1951 through 2012. The state Department of Education was responsible for the supervision of educational programs in this publicly supported and funded school. It was also in charge of inspection, the improvement of instruction, and the protection of disabled students. As part of the review of this case to render an opinion as to whether the government, the Department of Education, and the school collectively and independently met the applicable standard of professional care within this timeframe, we began by reviewing legislation from the early 1900s that placed the education of disabled students, including the plaintiffs in the lawsuit, under the authority of the government. The claims in this case, specific to the school, spanned six decades, during which time standards of care changed from decade to decade. The challenge of this review was to identify each standard on a timeline from 1950s for each decade through the present and determine whether the involved entities met the standard for the protection of students with disabilities who were under the control, care, and supervision of the government.

In some cases, including this one, basic parental standards are considered when no other standards exist. This is done under the theory of in loco parentis and the school's basic responsibility to protect students and act as any reasonable parent would, based on the circumstances and known information. For example, if the dorm supervisors in 1950s were aware that male students were entering rooms of female students at night and female students complained of inappropriate behavior or sexual conduct, the school had a responsibility to ensure that students are appropriately supervised to prevent such situations, as any reasonable parent at that time would do.

When reviewing such cases, to render an opinion as to whether a school or agency acted appropriately and reasonably and met the professional standard of care, we first determine what the accepted standard was during the relevant period of the allegation of child sexual abuse or other harmful incident. Next, we consider the standards as defined by the school or agency, based on the existing policies and procedures at that time. By applying the education, training, and professional experience of an education administrator to the review of the issues of a case and the relevant standards at the time, an opinion is rendered as to whether the school or agency met the professional standard of care within the field of education administration and supervision.