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Bar Journal - March 1, 2000

More Than a Parent: School District Liability for Sexual Harassment of Students Under NH Law

By:
 

The newspaper headlines speak for themselves ó sexual harassment suits present the single greatest risk of legal exposure for school districts in New Hampshire. The spectre of teacher and peer harassment claims sends shudders through educators and parents alike. During the past few years, both the United States and New Hampshire Supreme Courts have issued long-awaited decisions clarifying the law in this area. The United States Supreme Courtís decisions in Gebser v. Lago Vista Independent School District1  and Davis v. Monroe County Board of Education,2  in which the Court interpreted the scope of school liability for sexual harassment of students in violation of Title IX of the Education Amendments of 1972 ("Title IX"), have been the subject of widespread comment. The significant development of New Hampshire state law in this area, however, has received far less attention.

In addition to counts under Title IX, it is not uncommon in sexual harassment suits for plaintiffs to assert a variety of claims under New Hampshire law. These state law claims can include: (1) violation of RSA 169-C:29, the child abuse reporting statute; (2) intentional and/or negligent infliction of emotional distress; (3) negligent hiring, training and supervision; (4) respondeat superior liability; and (5) assault and battery. In instances of teacher-on-student and student-on-student harassment, the resulting suit often hinges on the allegation that school officials breached a duty to protect the student from harm.

The two New Hampshire cases that have shaped our state law in this area are Marquay v. Eno3  and Schneider v. Plymouth State College.4 

MARQUAY V. ENO

The scope of a school districtís responsibility to protect students from harassment and other forms of discrimination has been the subject of extensive debate in New Hampshire. In 1995, the New Hampshire Supreme Court determined in Marquay that school officials stand "in loco parentis," literally, in the place of parents, in protecting students from sexual abuse.5  The Marquay case involved three female middle and high school students in the Mascoma Valley Regional School District, all of whom asserted that they had been sexually abused by teachers over a period of several years. The students contended that a host of school employees, including other teachers, coaches and administrators, knew or should have known of the abuse.

The New Hampshire Supreme Court determined in Marquay that educators share a "special relationship" with school children entrusted to their care, which imposes upon them certain duties of reasonable supervision.6  In finding that such a duty exists, the court noted the compulsory nature of school attendance, the expectation and reliance of parents and students on a safe school environment and the societal importance of education.7  The "special relationship" flows from the fact that compulsory school attendance necessarily impairs the ability of students and parents to act independently to protect students from harm.8 

The Marquay court was careful to note that not every school employee bears this responsibility. The duty of reasonable supervision falls only upon those school employees who have supervisory responsibility over students and who have stepped into the role of "parental proxy."9  Importantly, the court offered little insight into the assessment of which school employees, other than principals and superintendents, fall into this category.10  This is not an idle consideration. Those employees who do share such a relationship with a student and who receive actual or constructive notice of abuse are subject to liability if they fail to provide reasonable supervision and if their negligence is a proximate cause of the studentís injury.11 

In reaching its conclusions, the court noted that the scope of the duty of reasonable supervision is limited to those risks that are reasonably foreseeable. A school district should not be held liable, therefore, for conduct that could not foreseeably result in injury or if the conduct was reasonable under the circumstances.12  The duty is further restricted to those situations in which "parental protection is compromised."13  This language suggests that limits do exist on the extent of potential liability. The reality is, however, that parental protection is often compromised during field trips, before and after school programs, athletic programs and other extracurricular activities that may take place off school premises or outside of school hours. The greater the resources a school offers, therefore, the greater the exposure to liability.

Also troubling is the courtís express acknowledgement in Marquay that assessments about foreseeability, reasonableness and compromise of parental protection are jury questions that must be resolved at trial.14  As a result, schools will be forced to expend significant time, effort and expense to defend against even the most frivolous claims.

The Marquay court also addressed the issue of a school districtís liability for hiring and retaining an employee who subsequently abuses students. Specifically, the court found that a school district or administrative unit has a duty not to hire or retain an employee who it knows or should know has a propensity for sexually abusing students.15  If a plaintiff can show that the hiring entity had actual or constructive knowledge of such a propensity, it will be held liable for the foreseeable sexual abuse of students by that employee.16  Liability for negligent hiring and retention can be imposed for conduct occurring outside of school hours if the requisite causal connection exists between the fact of employment and the specific injury alleged.17 

This aspect of the courtís ruling underscores the critical importance of thorough background checks during the hiring process. In addition to the standard criminal and reference checks, schools should require all applicants to execute a consent form that expressly allows the school district, board or administrative unit to inquire into the applicantís work history and character, consistent with the Fair Credit Reporting Act.18  The consent form should include a statement releasing both the requesting district and all previous employers who provide information in good faith from any future liability. Such consent forms have been upheld by at least one federal judge in New Hampshire and are a sound employment practice.19 

SCHNEIDER V. PLYMOUTH STATE COLLEGE

The New Hampshire Supreme Court further clarified the scope of school liability for sexual harassment of students in its recent decision in Schneider v. Plymouth State College.20  The Schneider case involved a female student at Plymouth State College who was subjected to a pattern of sexual harassment, intimidation and retaliation by a professor in her chosen major. The harassment began when Ms. Schneider was twenty-one years old and continued until the time she graduated three years later.21 

During her tenure at the college, Ms. Schneider revealed that she was being harassed in two papers she submitted in courses and told several friends and fellow students about the harassment.22  Ms. Schneider refused, however, to come forward to file a complaint with school officials or to allow any faculty member to take action on her behalf.23  Although several faculty members and two administrators were informed of the harassment through various confidential reports, no action was taken to investigate the situation since Ms. Schneider was unwilling to come forward.24 

Finally, after two other female students came forward in the fall of 1993 to complain that they had been harassed by the same professor, Ms. Schneider wrote a letter to the Dean of Faculty informing her of the prolonged harassment she had endured.25  Officials at the college immediately undertook an investigation that resulted in the professorís termination.26  Ms. Schneider thereafter filed suit against Plymouth State College and the University System of New Hampshire asserting violations of Title IX, as well as several state law causes of action, including a claim that the college breached a fiduciary duty to protect her from harm.27 

In June of 1997, the Schneider case was tried in the Merrimack County Superior Court. Before the case was submitted to the jury, the plaintiff voluntarily dismissed her state law claims of breach of contract, negligent hiring and negligent infliction of emotional distress.28  As a result, the plaintiff submitted for the juryís consideration her claims of sexual harassment in violation of Title IX and her state law claims of breach of fiduciary duty and negligent training and supervision.29  The jury found in the plaintiffís favor on her Title IX claims and her state law claim of breach of fiduciary duty.30  The jury returned a verdict in favor of the defendants on the plaintiffís state law claim of negligent training and supervision.31  Ms. Schneider was awarded $100,000 in compensatory damages and $15,000 in enhanced compensatory damages.32 

The defendants appealed the verdict on several grounds, including the trial courtís denial of their directed verdict on the plaintiffís claim of breach of fiduciary duty because no such relationship exists under New Hampshire law.33  The question of whether a fiduciary relationship exists between a post-secondary educational institution and its students was an issue of first impression for the New Hampshire Supreme Court.34  In Schneider, the court ruled that post-secondary schools do bear a fiduciary responsibility to "create an environment in which [a student can] pursue her education free from sexual harassment by faculty members."35  In reaching this conclusion, the court noted the power differential between faculty and students, which makes students vulnerable to harassment.36  The court was careful to note that its finding of a fiduciary duty did not rest on the in loco parentis doctrine underlying the Marquay decision but, rather, on the "unique relationship" between faculty and post-secondary students.37 

This decision is problematic for schools in several respects. First, given the courtís finding that a schoolís fiduciary duty hinges upon the relationship between faculty and students, the duty is arguably breached the moment any harassment occurs. This breach may occur regardless of whether the school has knowledge of the misconduct and even if the school has taken aggressive measures to implement and communicate the proper policies and grievance procedures to address such conduct. This ruling contrasts sharply with the United States Supreme Courtís decisions in Gebser and Davis, in which the court was careful to distinguish between the conduct of the harasser and the actions of the educational institution in determining the appropriate parameters of Title IX liability.38 

Secondly, although the Schneider court noted the wisdom of implementing effective policies and grievance procedures,39  it did not specifically acknowledge any affirmative defense to liability that schools can raise to defeat claims of harassment through summary judgment. This is in stark contrast to the United States Supreme Courtís 1998 decisions in Faragher v. City of Boca Raton40  and Ellerth v. Burlington Industries,41  in which the court ruled that, in certain circumstances, employers can defend against claims of supervisor harassment arising under Title VII of the Civil Rights Act of 1964 by demonstrating that the employer took "reasonable care to prevent and correct promptly any sexually harassing behavior" and that the complaining employee "unreasonably failed to take advantage of any preventative or corrective opportunities" provided.42  In defending against sexual harassment claims, therefore, private employers, who enjoy greater resources and the right to terminate employees summarily for misconduct, are afforded greater protection from liability than educators, who have limited resources and must balance any suspicion or complaint of harassment against the due process rights of the accused harasser. Such a position is untenable in a world in which we now ask more of our schools than we do of parents in regard to ensuring that children are properly educated and protected from harm.

Lastly, the New Hampshire Supreme Courtís rulings in Marquay and Schneider are inconsistent. The duty of "reasonable supervision" articulated in Marquay is grounded in negligence, while the fiduciary duty found in Schneider imposes the highest standard of care that can be implied under the law.43  As a result of these decisions, adult students on college campuses who are subjected to harassment are afforded greater legal protection than elementary schoolchildren who are sexually abused.

In the wake of Marquay and Schneider, schools in New Hampshire may now be subject to virtually automatic liability for the unauthorized and unknown misconduct of faculty members ó regardless of their knowledge and how great their efforts may have been to prevent and remedy sexual harassment. No one can deny the need for vigilance, responsibility and opportunity for redress in combating sexual harassment in schools. Despite the clear path laid by the United States Supreme Court in Faragher, Ellerth, Gebser and Davis, however, the New Hampshire Supreme Court has adopted in Marquay and Schneider an impractical and unworkable standard of liability for educators.

ENDNOTES

1. Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 118 S. Ct. 1989, 141 L.Ed.2d 277 (1998).
2. Davis v. Monroe Cty. Bd. Of Educ., 526 U.S. 629, 119 S. Ct. 1661, 143 L.Ed.2d 839 (1999).
3. Marquay v. Eno, 139 N.H. 708 (1995).
4. Schneider v. Plymouth State College, No. 97-585, slip op. (N.H. S. Ct. Dec. 16, 1999).
5. Marquay, 139 N.H. 708.
6. Id. at 716-17.
7. Id. at 717.
8. Id.
9. Id.
10. Id. at 718.
11. Id.
12. Id. at 717.
13. Id. at 718.
14. Id.
15. Id. at 720.
16. Id.
17. Id.
18. 15 U.S.C.A. ßß 1681-1681u (West 1997 & Supp. 1998).
19. Noyes v. Moccia, No. 98-CV-019-M, slip op. at 19-21 (D.N.H. Jun. 24, 1999) (order on motion for summary judgment).
20. Schneider, No. 97-585, slip op. (N.H. S. Ct. Dec. 16, 1999).
21. Id. at 2.
22. Id.
23. Id.
24. Id.
25. Id.
26. Id.
27. Id.
28. Id.
29. Id.
30. Id. at 2-3.
31. Id. at 3.
32. Id.
33. Id. at 3.
34. Id.
35. Id. at 4.
36. Id. at 3-4.
37. Id. at 4.
38. Davis, 119 S. Ct. at 1670; Gebser, 524 U.S. at 290-91.
39. Schneider, No. 97-585, slip op. at 4.
40. Faragher v. City of Boca Raton, 524 U.S. 742, 118 S. Ct. 2257, 141 L.Ed.2d 662 (1998).
41. Ellerth v. Burlington Industries, 524 U.S. 775, 118 S. Ct. 2275, 141 L.Ed.2d 662 (1998).
42. Faragher, 524 U.S. at 807-808; Ellerth, 524 U.S. at 765.
43. Appeal of Concerned Corporators of the Portsmouth Savings Bank, 129 N.H. 183, 203-204 (1987); Blackís Law Dictionary at 625 (6th ed. 1990).

The Author

Attorney Dyana Crahan Tull, Employment Practices Group, Windham, New Hampshire.

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