This article is presented with permission from our good friends at Stutz, Artiano, Shinoff, & Holtz.

THE C.A. MOLESTATION CASE: WHAT DOES IT MEAN FOR SCHOOL LIABILITY?

By: Paul V. Carelli IV
pcarelli@stutzartiano.com

There has been a lot written recently about the new California Supreme Court decision in the case of C.A. v. William S. Hart Union High School District. But what does the case really mean for school districts going forward?

In the case, the minor plaintiff alleged he was sexually harassed and abused by his school guidance counselor. The law states the school district is not liable simply because it employed the counselor.

So the issue before the Supreme Court was whether a school district could be exposed to liability if found to be negligent in hiring, supervising and retaining the guidance counselor. The Supreme Court answered "yes."

The Court unanimously held that a school district may be liable where a student proves that an administrator or other supervisory employee negligently exposed the student to a foreseeable danger of molestation by a guidance counselor. The law behind the decision reaches beyond guidance counselors, and encompasses teachers and other employees who molest students.

Here are some things to take away from the decision:

There is no change in the law that an employee who molests students is acting outside the scope of employment.

Thus, school districts will not be automatically liable for the molesting employee's conduct.

The school district is only liable if the molestation was foreseeable.

Thus, a school district is liable only if the school administration {a) "knew or should have known" of the employee's propensity to molest children and {b) the administration negligently hired, supervised, or retained the employee. Both parts must be satisfied for the plaintiff to succeed in a lawsuit.

Most of the time, the school will not have actual knowledge about molestation of a student until a student comes forward to report it.

So whether the administration should have known of the molestation will depend on the circumstances of the case. The same is true for whether the school district performed a proper background check before hiring, whether the supervision of the employee was adequate, and whether the employee should have been retained where questions arose over his or her conduct involving students.

It may be difficult for the student to prove that the negligence of the administrator caused the injury.

According to the Supreme Court, only if the According to the Supreme Court, only if the administrator is sufficiently high enough in the organization to influence the hiring and firing practices of the school district, will the district or administrator be held liable for the administrator's negligence. So the Court has noted a limitation on claims against a school district unless a principal or assistant principal has knowledge of the propensities of the molester and then had the influence to make a real recommendation on the molester's future employment. Thus, piecemeal information known by several employees, but not the principal or hiring authority, may not add up to liability of the administrator or school district.

The molesting employee's propensities must pose a "substantial risk" to the plaintiff or other students in the same circumstances.

In that regard, the Supreme Court's opinion recognizes that unsubstantiated rumors of sexual misconduct might curtail or destroy the careers of innocent teachers, counselors or other school employees. So the Court noted that unless the administrator knew or should have known that an employee's propensities pose a substantial risk to students, there is little moral blame to assign to an administrator. There is no change in the law that an employee who molests students is acting outside the scope of employment. Thus, school districts will not be automatically liable for the molesting employee's conduct.

The case was decided on March 8, 2012, and is styled
C.A. v. William S. Hart Union High School Dist. (2012) 54 Cal.4th 861.

The opinion may be accessed by clicking here:

Mr. Paul Carelli's practice focuses on appellate law, civil litigation, and general counsel, with an emphasis on employment, constitutional, public entity, and education law. Besides his trial experience, he is certified by the Legal Specialization Board of the California State Bar as a specialist in Appellate Law.

Mr. Carelli has handled dozens of civil appeals in both the federal and state court systems. He briefed the California Supreme Court in the case of Shirk v. Vista Unified School District (2007) 42 Cal.4th 201, 164 P.3d 630, 64 Cal.Rptr.3d 210. In that case, Mr. Carelli, representing the School District, successfully argued that an adult plaintiff's lawsuit was time-barred where the plaintiff claimed the District negligently permitted sexual molestation by a

Mr. Carelli also has briefed the United States Supreme Court and the Ninth Circuit in the important First Amendment school case of Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006), cert. granted and judg. vac., Harper ex rel. Harper v. Poway Unified Sch. Dist., 127 S.Ct. 1484, 167 L.Ed.2d 225 (2007). In Harper, the Ninth Circuit held that the First Amendment did not prohibit school administrators from preventing a student from wearing a shirt with an anti-gay message on campus. The case was later vacated by the Supreme Court on mootness grounds because the plaintiff had graduated from high school.

To learn more about Mr. Paul Carelli, please visit his profile page on the Stutz, Artiano, Shinoff, & Holtz webpage.

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