Future Liability for Protecting Teacher-Abusers

973 N.E.2d 880 (Ill. 2012)

"Officials Who Make False Statements About a Former Teacher-Sexual Abuser Can Be Held Liable to Future Victims"

By Clay Webb

Assistant Professor, University of Louisiana at Lafayette, LA

and

Richard Fossey

Paul Burdin Endowed Professor of Education, University of Louisiana at Lafayette, LA

In Doe v. McLean County Unit District No. 5, 973 N.E.2d 880 (Ill. 2012), the Illinois Supreme Court ruled that Jane Doe-3 and Jane Doe-7, two elementary school girls who attended school in Illinois’s Urbana School District could sue school administrators in the nearby school district of McLean County, based on allegations that McLean County school officials misrepresented the circumstances under which Jon White, an elementary teacher, ended his employment at McLean. According to the plaintiffs, the McLean County school administrators knew Jon White was a child abuser, but they concealed that fact from the Urbana School District, which hired White, providing him with the opportunity to sexually molest more children, including Jane Doe-3 and Jane Doe-7.

Indeed, White turned out to be a child abuser who admitted to molesting elementary school children in both districts. He is now serving a sixty-year prison sentence after pleading guilty to abusing girls in the Urbana school district and the McLean County school district. Mary Schenk, 3 former educators charged in Jon White case aftermath. NEWS-GAZETTE (Champaign, Ill.), Aug. 8, 2008.

Facts

The plaintiffs in the McLean County case were two elementary girls who attended Thomas Paine Elementary School in the Urbana School District. While in school, the girls alleged that they were sexually abused by Jon White, an elementary school teacher. Prior to working for the Urbana district, White had worked for three years at two elementary schools in McLean County Unit District No. 5, where he had sexually harassed or abused several elementary school girls.

According to the plaintiffs, McLean County school administrators knew that White had sexually molested elementary-school girls, but they did not report this fact to the state’s Department of Children and Family Services as they were legally required to do. In addition, Jane Doe-3 and Jane Doe-7 accused the McLean County school authorities of failing to record incidents of abuse in White’s personnel file.

The two Jane Does also charged McLean County school administrators with creating “a falsely positive letter of reference” for White that concealed his known sexual abuse of elementary school girls. Finally, they accused the McLean officials of concealing White’s abuse by giving false information on a “Verification of Employment” form, indicating that White had worked an entire school year in the McLean County School District when in fact he had been subject to disciplinary removal from the classroom on two occasions and had left the McLean district before the end of the school year. Id. at 885.

Jane Doe-3 and Jane Doe-7 sued the directors of the McLean County School District, the McLean County superintendent, the assistant superintendent for human resources, two McLean County school principals, and an assistant principal. The girls argued in their complaint that the McLean defendants were vicariously liable for White’s acts and that they had “acted willfully and wantonly when they ‘passed’ White to the Urbana school district by misrepresenting White’s employment record on a verification form.” Id.

The McLean County defendants tried to dismiss the lawsuit, arguing that they owed no duty to the Urbana school girls. After all, the McLean County school officials had never met the Urbana victims and had never made any direct representations to them about White.

A trial court agreed with the defendants, finding they owed no duty of care to the plaintiffs, but an Illinois intermediary appellate court reinstated the suit. Id. at 884. The Illinois Supreme Court, in a case of first impression, agreed with the intermediary appellate court and ruled that the Urbana school children could proceed with their lawsuit.

Reasoning of Illinois Supreme Court

On appeal, the Illinois Supreme Court was called upon to decide one critical question: did the school administrators at McLean County Unit District No.5 owe a duty to the Urbana elementary school girls not to misrepresent the circumstances under which Jon White left his employment at McLean. The court ruled that in fact the McLean defendants did have such a duty.

As the court pointed out, Illinois law holds that “every person owes to all other persons a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.” Id. at 890 (internal citations omitted). That duty does not extend to guarding against freakish or bizarre events, which are not reasonably foreseeable.

In the Illinois Supreme Court’s view, the injuries suffered by Jane Doe-3 and Jane Doe-7 were not so freakish or bizarre as to be unforeseeable. “By falsely stating that White taught a full school year, when in fact, White’s employment had ended prior to the end of the school year, defendants implied that the severance of White’s employment was routine,” the court pointed out. Therefore, at the time Urbana hired White, “it had no reason to believe that White’s nonrenewal by McLean was the result of his misconduct.” According to the plaintiff’s complaint, the McLean officials were “well aware” of multiple instances of White’s sexual misbehavior. “In light 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.” Id. at 890-891.

Second, the possibility of injury was not remote or unlikely. “[W]here a teacher who is known to have abused children is hired in a teaching position at another school, the likelihood that students at the next school will be abused by that teacher is within the realm of reasonable probability,” the court observed. “Thus, we cannot say, as a matter of law, that plaintiffs’’ injuries were as remote or unlikely as to preclude a duty owed by the defendants.” Id. at 891.

Third, the Illinois Supreme Court noted, the burden on Mclean County school administrators to use reasonable care in filling out employment forms was not onerous. And fourth, the court concluded, it was difficult to see how there might have been any adverse consequences to McLean had it accurately filled out White’s employment forms.

The court noted that its finding that McLean owed a duty to Jane Doe-3 and Jane Doe-7 was buttressed by a strong public policy in Illinois to safeguard the safety and wellbeing of children. “These public policy concerns for the protection of children, particularly from the dangers of sexual offenders, weigh in favor of finding a duty under the facts of this case.” Id. at 892.

Beyond their argument that they owed no duty to Jane Doe-3 and Jane Doe-7, which the Illinois Supreme Court emphatically rejected, the McLean school administrators had one more defense—the defense that they were statutorily immune from suit under the Illinois Tort Immunity Act for their acts of negligence. The court rejected this argument as well, pointing out that the plaintiffs had not accused the defendants of negligent misrepresentation. Rather, they had accused them of “willful and wanton conduct,” and the Illinois Tort Immunity Act did not immunize the McLean County school officials from liability for conduct that was willful or wanton. Id. 893.

Conclusion

Doe v. McLean County Unit District No 5 is an important case because a state’s highest court ruled that school officials who intentionally misrepresent the circumstances under which a child-molesting teacher was terminated may be sued by students who are later molested by the abusive teacher in the abuser’s new place of employment. The Illinois Supreme Court does not stand alone on this issue. In Randi W. v. Muroc Joint Unified School District, 929 P.2d 582 (Cal. 1997), a case involving similar facts to the McLean County case, the California Supreme Court ruled that a student who was sexually victimized by a teacher could sue several of the district’s former employers for fraud and misrepresentation for failing to disclose information they possessed that the teacher might pose a danger to students.

For school administrators, the practical implications of the McLean County case should be obvious. First, school officials who suspect a teacher is sexually molesting students should report their suspicions to appropriate state authorities as they are required by law to do in every state. Had McLean County school officials reported what they knew about White while he was still employed in the McLean County school district, it seems likely that White would have been arrested and would never have gone to work for Urbana school district.

Second, school administrators should never make misrepresentations about teachers they know are dangerous to children in order to allow that teacher to find another teaching job. To do so puts more children at risk and subjects them to potential liability for the injuries that occurred.

Published in SLR Express, March 2013 edition.