School principals and other supervisory employees have the duty to take reasonable measures to guard students against the harassment and abuse from foreseeable forces. (Courtesy photo)

School principals and other supervisory employees have the duty to take reasonable measures to guard students against the harassment and abuse from foreseeable forces. (Courtesy photo)

Tackling sexual assault in schools

This week’s question comes from Susan L. in Oakland, who writes:

Q: “My son was sexually assaulted by another student at school early in the school year. Our family has been devastated and I am not sure what to do next. A couple of weeks after the incident, I found out that other parents had previously complained to school administrators about similar incidents when this student had violated other children. I am absolutely furious that the school where I entrust my son to be safe and learn would ignore reports of a recurring danger to students. What are the laws regarding sexual assault in schools and what can I do?”

A: Susan, first, let me say how distressing it is to hear about your son’s experience and due to the unfortunate nature of sexual assault, it is imperative to have your son checked by his primary care physician immediately. Unfortunately, your son’s experience is not at all unique and school districts can and should be held accountable to the impacted families. As a trial lawyer, I have come across several cases in which students are sexually assaulted in schools either by their peers or teachers.

A school district and its employees have a special relationship with the district’s students and their parents. Under California Government Code Section 815.2, “[a] public entity is liable for injuries proximately caused by an act or omission of an employee of the public entity within the scope of his employment….” The duty of care owed by school district personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties, including other students, acting negligently or intentionally. If school district personnel fail to take such reasonable measures, they may be deemed negligent for failure to meet their legally mandated standard of care.

The school district always the responsibility to take reasonable measures to supervise your son, his attacker, as well as the other students. Any lack of supervision or ineffective supervision may constitute a lack of ordinary care by the supervising personnel within the scope of their employment at your son’s school. Moreover, school principals and other supervisory employees have the duty to oversee not only the educational environment and performance of teachers and counselors, but also to take reasonable measures to guard students against the harassment and abuse from foreseeable forces.

The law holds school districts responsible for sexual assaults committed by one student on another student if it had reason to know that a particular student had “sexual tendencies,” including when it is on notice through prior complaints from teachers or parents. Another way the school district might become aware of a student’s “sexual tendencies” might be if the student is in a special needs classroom, where the school district would have access to a continually updated individualized educational program (“IEP”) and/or behavioral assessments for each student, which would alert the school personnel about the student’s tendencies. Given the high probability of a repeat incident taking place, the school personnel has a heightened responsibility to ensure adequate supervision of a student with a documented history of sexually inappropriate behavior to prevent exactly the type of foreseeable harm that regrettably occurred in your son’s case.

In this situation, the school district was on notice, through the previous parents’ complaints, of the other student’s sexual tendencies; therefore, it was a foreseeable injury the school district could have guarded against as they were aware of the potential danger. The personnel at your son’s school knew or should have known that your son’s assailant had a tendency to act in a sexually violent manner and would likely have intentions of committing future sexual assaults on other students. Therefore, it is likely that the school district breached it duty of care to your son by failing to protect him from this known danger.

It is important to note that there is a limited time in which you can bring a claim against a government entity such as a school district. Under California Government Code Section 910 a claim against a government entity must be brought within six months after the event or occurrence. Before you can file a lawsuit against the school, the government requires that you notify the government entity of any potential claims you may bring against it. You must use the claim form of the particular governmental agency when filing a claim and you must file it with the proper authority.

We have handled hundreds of sexual assault cases over the years involving teacher-on-student sexual assaults and student-on-student sexual assaults. Because of the delicate nature of the claim, these cases should be handled by trial lawyers with significant experience in this area.

Christopher B. Dolan is owner of the Dolan Law Firm. Email Chris questions and topics for future articles to help@dolanlawfirm.com. 

We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.

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