Going to school shouldn’t be dangerous. We know that in gun violence is so bad in Chicago that cops in certain neighborhoods must set up safe corridors to ensure kids can walk and to and from school without getting shot. In New York City the big danger appears to be students getting sexually assaulted or molested by staff.
The New York Post reports that sexual misconduct complaints against school staff are up by 50% during the last 5 years. In 2016 there was a whopping 529 complaints investigated by New York City’s Special Commissioner of Investigation. That number skyrocketed to 803 in 2019.
The Post reports that last year the Commissioner’s Office investigated 209 of the complaints and found that 59 were substantiated.
Are Students Rape Complaints Being Ignored?
That New York City only investigated roughly 1 out of 4 sexual misconduct complaints shocks us. We have no idea why the city doesn’t investigate every such report. The city’s failure to investigate may be part of the reason why complaints are escalating so fast.
Apparently, we aren’t the only ones to feel that way. A federal lawsuit filed last fall on behalf of four teen girls sheds light on the problem. All four girls are black, all four are disabled and all four claim they were ignored when reporting the assaults to the Department of Education.
Court records say that two of the girls were raped in middle school, one was punched and sexually assaulted and the fourth was groped by a classmate multiple times. Although these were not assaults by school staff, the school remains responsible for providing a safe environment for kids and the fact that the assaults were never investigated is beyond troubling.
One woman says she reported the rape to three different school employees but nothing happened. The city said in a prepared statement, “Our schools must be safe and inclusive environments, and there is absolutely zero tolerance for any sexual misconduct.” Unfortunately, we have heard that or similar statements too many times. (One school staffer helpfully told a reporter at Patch that every school has a poster that tells how students to report sexual misconduct as if a poster will make schools safer!)
Unless there is lawsuit or media attention about a particular assault, we think the city miserably fails in its duty to investigate crimes within the schools. The bigger and more serious issue is that the city also fails to keep students safe.
NYC Education Chief Caught with Child Pornography
Leadership always starts at the top. If New York City wants to get serious about combatting the problem of pedophile teachers and staff, it could have started with the Department of Education’s Deputy Chief of Staff, David Hay. Earlier this year Hay was arrested for possession of child pornography and enticement of a minor. While anyone can be a pedophile, the city’s background check failed to detect that Hay had been forced to resign by a school district in Wisconsin for misconduct a few years earlier. Like many applicants, he lied on his application. Unfortunately, no one in New York caught those lies during Hay’s background check.
City Says Queens Teacher Rape of Student “Unacceptable”
In November of last year, the Special Commissioners Office said a 53 year old teacher at the Long Island City High School in Queens had engaged in “repeated acts of misconduct with numerous female students including maintaining a sexual relationship with one former student before… her graduation.”
The report noted that some of the students received unmerited passing grades and that he supplied one student with alcohol and drugs. Amazingly, the teacher was allowed to resign instead of being fired.
The city said the teacher’s actions were “completely unacceptable” and demonstrate a an abuse of his authority as a teacher. Our choice of words would be a bit more harsh. The city seems more interested in putting up posters and being politically correct instead of protecting students.
Teacher - Student Sexual Relationships are Illegal
Many school aged kids have never been involved in an intimate relationship before. They also look up to teachers. That makes it easier for teachers to manipulate students. Obviously, most don’t but because of the easy availability of kids, many predators are attracted to work in schools. (Remember, not all predators are teachers. The predator can also be an aide, coach, bus driver, custodian, counselor or administrator.)
In most states, including New York, statutory rape laws prohibit teachers or school staff from having sexual relations with students. Even if the student meets the age of consent rules for that state, the relationship is still illegal.
The statutory rape laws say that students don’t have the capacity to consent even if they entered into the relationship willingly.
Teachers and school staff that engage in sexual misconduct with students can be arrested and criminally prosecuted. As noted above, in most states the age of the student doesn’t matter nor does any alleged “consent” of the victim.
Beyond criminal prosecution, the staffer can also be liable in a civil lawsuit for monetary damages. The problem with suing a teacher for the rape or molestation of a student is that incarcerated or unemployed teachers typically don’t have much in the way of assets. Even if they aren’t in jail, as a convicted sex offender their job prospects are greatly diminished.
School Districts Responsible for Sexual Assaults
The good news is that the school district can often be sued. School districts have a duty to carefully screen their employees (something that apparently didn’t occur with David Hay). They also have a duty to properly supervise staff and keep students safe. The duty to screen teachers and staff and to supervise extends to school volunteers such as volunteer coaches.
In some schools, powerful union contracts allow teachers to remain on the payroll for years while a charge against them is pending. That doesn’t protect the school board from civil liability. Unfortunately, we know many districts that will keep suspected molesters working rather than allow them to remain home on paid leave. The theory is that if they must keep paying the teacher while being investigated they should just allow him or her to keeping work.
A powerful federal civil rights law known as Title IX (“Title Nine”) also provides remedies to student victims of sexual assaults and harassment. Title IX says, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Although an anti-discrimination law, sexual assault and abuse is considered a form of sexual harassment and is covered by the law. How is sexual harassment or rape discrimination?
Courts have consistently ruled that when students suffer sexual assault or harassment, they are deprived of equal and free access to an education. The Office for Civil Rights for the Department of Education also says, "The sexual harassment of students, including sexual violence, interferes with students' right to receive an education free from discrimination and, in the case of sexual violence, is a crime.”
To collect damages under the law, the person abused must show that a school official (administrator, principal, supervisor) knew or should have known of the abuse but failed to stop it. In the case of New York City, it is hard for them to say they didn’t know when they are flooded with reports yet barely investigate just one in four.
Since almost every public school receives federal money, all are covered by the law. Private and parochial schools that except vouchers are probably covered as well.
The courts have long concluded that school officials can be held responsible “for their deliberate indifference to reported behavior on the part of employees where students were sexually, physically, or verbally abused.”
Was Your Son or Daughter Sexually Abused by a Teacher, Coach or School Worker?
Our team and national network of sexual abuse and sexual harassment lawyers can help you get the justice your family deserves. We are dedicated to putting an end to sexual misconduct in schools and in securing the maximum compensation for those hurt by the actions of predatory teachers and school staff. Even if the assault was committed by another student, the school district may still be liable, especially if they were aware of the problem before the assault took place and failed to act.
Attorney Brian Mahany is a former police officer, prosecutor, and board member of the Family Violence Project. He is also a former volunteer with the Sexual Assault Crisis and Assault Center.
If you are son or daughter was molested or sexually assaulted in school, on a school trip or athletic event or by a teacher even if the assault didn’t take place at school, we can help. Brian and his network can be reached online, by email [hidden email] or by phone at 888.249.6944. All inquiries are kept strictly confidential.