Speakout: Public schools given too many protections in sex abuse cases

Rocky Mountain News ^ | 21 January 2006 | Suann Malone Maier

[A.A. Cunningham]

Rocky Mountain News To print this page, select File then Print from your browser URL: http://www.rockymountainnews.com/drmn/speak_out/article/0,2777,DRMN_23970_4404152,00.html Speakout: Public schools given too many protections in sex abuse cases By Suann Malone Maier January 21, 2006 State legislators are back in session. As a mother and a teacher, I have a suggestion for them. Every day my husband and I put our 15-year-old son Dan on the bus to his public school. Over the years, Dan's had many wonderful teachers. Most of the adults he meets at his public school, in sports and at our local church treat him with kindness. We're grateful. Dan has Down syndrome. The disabled are not always so well-received. Because of his disability, Dan belongs to a group that is up to 10 times more likely to be sexually abused as a minor. And if sexual abuse does ever happen to Dan, the national evidence shows that it's more likely to take place at his public school than anywhere else outside his family. I know this because I've had to learn it in order to protect my son. The Associated Press reported last year that in some states sexual abuse is the main reason public school teachers lose their licenses. Not that this should have come as a surprise given the growing body of evidence. A probe by the Pittsburgh Post-Gazette, for example, found that during the 1990s, "By far the most common reason for teacher discipline" in Pennsylvania "was sex-related offenses, according to state documents." Colorado public schools are not exempt from the abuse problem. Just check the headlines over the past few years. Professor Charol Shakeshaft of Hofstra University, among others, argues that up to 15 percent of all public school students nationally are the victims of sexual misconduct by a staff member, ranging from kissing to sexual intercourse, by the time they finish high school. Even conservatively, that number involves hundreds of thousands of public school students. The evidence also suggests that from 1 percent to 5 percent of the teaching profession and up to 25 percent of all public school districts have problems of sexual abuse. All of this sounds depressingly familiar from stories about past sex abuse in the Catholic Church, right down to an alleged pattern of what one angry public school parent described as "passing the trash," i.e., moving around abusive public school teachers from job to job. But in most states - including Colorado - there's one very big difference, with very big consequences for public school parents like my husband and me: It's a whole lot easier, and potentially far more lucrative, to sue the Catholic Church, or any church or private organization, than it is to sue the local public school district. The reason is simple. Public school districts enjoy sovereign immunity unless the state legislature says otherwise. So far, Colorado legislators have kept that immunity in place. As a result, public school districts have a sharply reduced liability for incidents of sexual abuse. Let me put it as plainly as I can: Under Colorado law, my husband and I can recover a lot more money, a lot more easily, if our son Dan is abused by a deacon at our local parish than if he's sexually violated by a teacher or coach at his local public school. Under Colorado law, parents have much less time to identify, report and legally pursue sexual abuse committed by a public school employee than if the same abuse is committed by the employee of a religious or private organization. The amount of money they can recover in damages is also drastically limited. Of course, in reality, minors are actually more likely to encounter sexual abuse in a public school setting than at their local church. But Colorado law doesn't seem to care about that. What Colorado law tells public school parents like me is this: Sexual abuse at the hands of a public school employee is less serious and less expensive than exactly the same abuse at the hands of a pastor or Sunday school teacher. Something is profoundly wrong with that kind of lawmaking. My husband and I have heard all the arguments in favor of sovereign immunity. But for anyone with a child at risk for sexual abuse, they're empty words. We've even heard the claim that churches and other nonprofits should be held to a "higher standard" because of their tax-exempt status. This is pure cynicism. It ignores the fact that governments grant tax exemptions precisely for the benefit of the communities they govern, and to reduce their own expenses. It implies that the abuse of a minor by a clergyperson is somehow more loathsome than the same ugly abuse by a public school teacher simply because some church gets a tax break. It also implies that public school districts should be less accountable because we pay taxes to support them. Try telling that to an aggrieved parent face to face. If - as attorneys tell us - organizations only learn when they have to pay for their own misdeeds and the misdeeds of their agents, then why should public school districts be exempt from the same kind of education? As the 2006 legislative session begins, our lawmakers could do everyone a favor by changing Colorado laws to make them fair. If we're really serious about protecting children and punishing the sexual abuse of minors, then the same criminal, civil and financial standards should apply to public and private offenders - including public school systems. Anything less is unjust. Suann Malone Maier, a teacher for 30 years, is on the faculty of Denver's St. Vincent de Paul School. Copyright 2006, Rocky Mountain News. All Rights Reserved.

[phoenix0468]

It is a sad fact of society that predators will place themselves in postitions where they have the easiest access to their victims. It is an enigma that our Police Officers must endure rigerous psychological examination and background checks, but our teachers must only pass a certification test. These are individuals trusted with a great deal of care, and they are very rarely properly screened by the public schools.

[A.A. Cunningham]

February 1, 2006

 

Dear Colorado Legislator:

 

Three bills have recently been introduced in the Colorado legislature that would either remove or modify statutes of limitation in cases of child sexual molestation committed by someone who works for a private institution (the sponsors are Senator Joan Fitz-Gerald and Representative Alice Madden, Senator Paula Sandoval and Representative Rosemary Marshall, and Representative Gwyn Green).  Furthermore, these bills would allow private institutions to be prosecuted if they are held to be “vicariously libel.”  Exempt from these measures are public institutions.  Public schools, for example, are shielded under the provision of sovereign immunity, and there is nothing in any of these bills that would eliminate this glaring inequity. 

 

These bills are not only discriminatory in both intent and practice, they unfairly tip the scales of justice against the accused.  Indeed, the bill by Fitz-Gerald and Madden also permits a civil action “against a defendant who is deceased or incapacitated.”  In other words, Fitz-Gerald thinks that priests who died when Jimmy Carter was president—or those who are currently suffering from Alzheimer’s—should be eligible to stand accused of a crime even though it is impossible for them to defend themselves.  And if this doesn’t work, then the Catholic Church should be eligible for a massive lawsuit under the provision of vicarious liability.  But if the accused is a public school teacher, then sovereign immunity should protect both him and the public school industry from prosecution.

 

It’s actually worse than this.  In their joint statement on this issue, Colorado’s three bishops—Archbishop Charles Chaput, Michael Sheridan and Arthur Tafoya—say that “Under Colorado law, even if there were no sovereign immunity (their italics) the victim of a public school teacher’s misconduct must initiate his or her claim by filing a formal notice no later than 180 days after the incident.  Moreover, the damages for such claims against government defendants are capped at $150,000.” 

 

But under these three bills, if the alleged abuser is a parochial school principal, the accused will be given two years to file suit even if the alleged crime occurred a generation ago.  However, public school principals who are accused of the identical crime at the identical time are purposely allowed to get off scot-free.  And unlike the public schools, there is no cap on damages that parochial schools might have to pay—the sky’s the limit.  The “deep pockets” of the parish—or perhaps the diocese—might  even be subject to vicarious liability.

 

As if all this weren’t enough, the three bills are premised on the assumption that child sexual abuse is worse in parochial schools than in public schools.  The empirical evidence, however, shows just the opposite is true.

 

Arguably the nation’s leading student of sexual abuse in the schools is Professor Charol Shakeshaft of Hofstra University.  A few years ago, she was commissioned by the U.S. Department of Education to review all the studies that have been done nationwide on this problem.  Her report, “Educator Sexual Misconduct: A Synthesis of Existing Literature,” was released in 2004. 

 

Shakeshaft’s conclusion: nearly 10 percent of American students are the victims of unwanted sexual attention by public school employees—ranging from sexual comments to rape—in their school years.  When asked how these statistics compared to priestly sexual abuse, Shakeshaft said, “the sexual abuse of students in schools is likely more than 100 times the abuse by priests.”  Get the point?  None of the bills under consideration target the very venue where the sexual abuse of children is most rampant!

 

By way of analogy, consider the following.  Would it make sense to crack down on gambling by targeting church bingo but not the numbers racket?  Would it make sense to crack down on drugs by targeting cigarettes but not cocaine?  Would it make sense to crack down on street crime by targeting jaywalkers but not muggers?  

 

According to a March 31, 2002 news story in the Denver Post, 84 teachers in Colorado were found guilty of either child sexual assault or child abuse between the years 1991 and 2002.  Yet under these three bills, not one of these teachers will face prosecution, nor will any of the molesting teachers since 2002 be brought up on charges.  As a matter of fact, the entire public school establishment will escape being prosecuted for vicarious liability. 

 

State Senator Paula Sandoval, who co-sponsored one of the bills, was recently asked why public institutions should be exempt from the reach of her legislation.  Her candor was refreshing: “I think the law should apply to everybody,” she said, “but my guess is there would be probably a lot of opposition by the CEA (Colorado Education Association).” 

 

Colorado lawmakers have a moral and legal obligation to treat all parties equally.  Either these bills should be amended to blanket all institutions, or they should be rejected as discriminatory.  Unequal justice is injustice, and it is profoundly un-American, as well. 

 

Sincerely,

 

 

William A. Donohue, Ph.D.

President

 

The Catholic League is the nation's largest Catholic civil rights organization. It defends individual Catholics and the institutional Church from defamation and discrimination.
 

 

 

[A.A. Cunningham]

Equality under the law? On some issues, it depends

An open letter to the faithful of northern Colorado from their Catholic bishops

1 February 2006

In recent days, State Representatives Rosemary Marshall (D-Denver) and Gwyn Green (D-Denver), along with State Senator Joan Fitz-Gerald (D-Golden) and State Representative Alice Madden (D-Boulder), have offered various related bills to the Colorado General Assembly. Each would eliminate or modify statutes of limitation so that a childhood sexual abuse victim could wait 30 years, 40 years, or even longer before filing a suit for damages against Catholic institutions and other private entities in Colorado.

These bills need to be considered in light of stories like the one aired in the spring of 2005 by a leading Colorado news channel.

According to the news report, a young boy had been severely injured on public school property in a supervised program. The public school district never disputed that the children weren’t properly supervised. But when the victim’s family sought compensation for medical bills, the school district declined, citing the doctrine of sovereign immunity. Worse, attorneys for the school district indirectly threatened to counter-sue for legal fees if the family pursued a suit.

We all agree that the sexual abuse of a minor is a serious crime and a grave sin. The proposed pieces of legislation, whatever their final form, and whether they’re pulled from consideration or move forward, have sparked an important discussion. What should Colorado’s public policy be on civil lawsuits arising from such sexual abuse? And should two unequal kinds of justice apply — a soft version when the sexual offender works for a public entity, and another, much harder version when the offender works for a Catholic or private institution?

Nationally, the evidence is now irrefutable that sexual abuse and misconduct against minors in public schools is a serious problem — in fact, more serious than anywhere outside the home, including churches. Since most Catholic children in Colorado attend public schools, this should seriously concern the whole Catholic community.

Colorado’s application of sovereign immunity sharply limits a family’s ability to sue a public school district, or similar public institutions, for the sexual abuse of their child or any other damaging activity. But the real situation in our state is even more troubling than that.

Under Colorado law, even if there were no sovereign immunity, the victim of a public school teacher’s misconduct must initiate his or her claim by filing a formal notice no later than 180 days after the incident. Moreover, the damages for such claims against government defendants are capped at $150,000.

For Catholics and any reasonable person, that raises two questions. First, why can a victim of teacher or clergy abuse in a Catholic school or parish wait a lifetime before initiating such litigation, while the victim of exactly the same and even more frequent abuse in a public school setting loses his or her claim by waiting 181 days? Second, why should a Catholic institution that is sued for such conduct be liable for massive, community-crippling damages, while guilty public institutions — even if sovereign immunity were waived — would face a mere $150,000 damages?

There’s a very good reason why SESAME, a national public-school abuse-victim group, has had difficulty organizing in Colorado. Our state law makes it useless for any such group to organize or act.

Catholics have learned about the national scope and human impact of sexual abuse the hard way. As bishops, we are wholeheartedly committed to helping victims heal and doing everything we can to protect our families in any Church-related environment. Every victim of sexual abuse suffers deeply and deserves our compassion. But the facts clearly show that the sexual abuse of minors is in no way a uniquely — or even disproportionately — “Catholic” problem.

The facts also show that too many public authorities have had too little accountability on the issues of sexual misconduct and abuse for too long. As a society, if Coloradans are really serious about ending the sexual abuse of minors, that needs to change.

For the sake of justice and common sense — and for the sake of their own children — Catholics need to demand from Colorado lawmakers an end to our state’s legal inequities in dealing with childhood sexual abuse.

On a matter as ugly and grave as the sexual abuse of minors, exactly the same civil and criminal penalties, financial damages, time frames for litigation and statutes of limitations should apply against both public and private institutions and their agents. That’s fair, that’s just, and it serves the ultimate safety of all our young people.

Most Rev. Charles J. Chaput, O.F.M. Cap.,
Most Rev. Arthur N. Tafoya
And Most Rev. Michael J. Sheridan

For more information on the proposed pieces of legislation and the inequities of Colorado law in addressing the sexual abuse of minors, contact the Colorado Catholic Conference, 303-894-8808.

[my4kidsdad]

WOW - for later reading

[swmobuffalo]

"These are individuals trusted with a great deal of care, and they are very rarely properly screened by the public schools."

In your state perhaps./

[phoenix0468]

Well, I just was corrected. In my state they do have background checks for teachers. And the teachers pay for them. That's a bit more reassuring.

[serferten]

Great insight, I should have thought of it intuitively myself earlier. The old media has disdain for religion so was throthing at the bit to attack the Catholic Church for the child abuse scandal. But the same loves old media loves public schools, so would ignore or only pay lip service to a story like this--conservatives have to embarass them into reporting it.