October 2012 • Volume 100 • Number 10 • Page 514
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Tort liability for school districts that hide former teachers’ sexual harassment
The Illinois Supreme Court ruled that a school district breaches its duty of care when it gives false information to another district about a teacher's sexual misconduct.
The Illinois Supreme Court ruled that a school district breaches its duty of care if it provides false information to - and hides a former teacher's sexual misconduct from - another school district that hired the teacher for the following year.
The plaintiffs in Jane Doe-3, et al., v. McLean County Unit Dist. No. 5, et al., 2012 IL 112479, alleged that while working for defendant McLean County School District No. 5, elementary-school teacher Jon White was twice disciplined and removed from the classroom in the 2004-05 school year "because of his teacher-on-student sexual harassment and/or sexual grooming and/or sexual abuse," as the court's opinion put it.
The plaintiffs alleged that when White later sought employment in an Urbana school district, the McLean district provided an employment verification form in which it inaccurately reported that White had successfully completed the entire '04-05 school year as a teacher. The form allegedly made no mention of his disciplinary removal or the reasons behind it.
The Urbana district hired White for the '05-06 school year, and plaintiffs Jane Doe-3 and Jane Doe-7 later filed suit claiming White sexually abused them in his first year on that job. The plaintiffs sought damages against the McLean district and its administrators based on theories including willful and wanton misconduct and intentional misrepresentation.
Although it rejected the reasoning of the court of appeals in allowing the case to proceed, the supreme court nonetheless found that the McLean district had an ordinary duty of care and affirmed a ruling that plaintiffs' complaints should survive a motion to dismiss. The high court remanded the case to the trial court for further proceedings.
Urbana-based attorney Thomas Bruno, who is a member of the ISBA Assembly and Human Rights Section Council, said he sees an unfortunate pattern in the news this year involving school administrators who fail to take appropriate action against bad employees out of fear of tarnishing reputations or possible legal ramifications against their schools.
Bruno represents three of the nine Urbana students who have made claims against White. He said all nine of those students (and their families) have reached settlements with the Urbana district, but only Jane Doe-3 and Jane Doe-7, who are not Bruno's clients, are involved in this supreme court decision because they were the only plaintiffs who named the McLean district as a defendant.
One thing administrators should keep in mind, Bruno said, is that they need to tell the truth when verifying the employment histories of former employees. "I think…the risks of a bad employee suing you for an honest assessment…are minimal compared to the exposure you have at hiding some piece of dirt that could come back to haunt you if the former employee goes on to create great harm at a subsequent job."
For school districts that want to protect themselves from this kind of liability in the future - and for any other public or private entities that hire and fire employees - Bruno suggested a crosscheck procedure to verify that employment histories are true and correct.
"It's like a checklist in an airline takeoff situation - letting one person check the references isn't good enough," Bruno said. "You have to have some way to crosscheck the information. When Marylou says she checked his references, someone needs to check on Marylou to find out how thoroughly she really investigated it."
No duty to report
According to the supreme court's majority opinion in this 5-2 split decision, the appellate court reversed the trial court's dismissal of the case by holding that McLean's duty of care arose from three circumstances alleged by the plaintiffs: failing to warn Urbana of White's conduct, failing to report White's conduct to law enforcement authorities, and creating and tendering a false letter of recommendation for White.
The supreme court, however, disagreed with the lower court's reasoning and held that McLean had no duty to report White's conduct to Urbana. The court's majority instead found that an ordinary duty of care existed based on other circumstances that established a reasonable likelihood that the plaintiffs' damages would occur due to defendants' alleged actions and omissions.
"[W]e find that plaintiffs have alleged circumstances which do give rise to a duty owed by the defendants in this case. These circumstances consist of defendants' act of misstating White's employment history on the employment verification form sent to Urbana," Justice Anne Burke wrote for the majority. "By [allegedly] falsely stating that White taught a full school year, defendants implied that the severance of White's employment was routine. At the time that Urbana hired White, it had no reason to believe that White's nonrenewal by McLean was the result of his misconduct."
The court said that a disclosure on the employment verification form would have been a "red flag" to Urbana to investigate the circumstances behind White's departure from McLean. "In light of [the plaintiffs' allegations of] defendants' awareness of White's conduct and their false statements on the employment form, we cannot say, as a matter of law, that the injuries suffered by plaintiffs were unforeseeable," the majority said.