In previous articles we have addressed how state actors (i.e., school officials) can be held responsible for violating the Constitutional rights of their students. In this article, we will take a look at a recent Seventh Circuit case that highlights how a supervisor could be held liable for her employee’s criminal and unconstitutional conduct, which included sexual harassment and abuse. 

While the outcome of this Seventh Circuit case may not be surprising, it does serve as an important reminder to all administrators of the importance of expeditiously responding to allegations of sexual harassment and abuse. Administrators who fail to address allegations of sexual misconduct may find themselves personally liable under 42 U.S.C. § 1983, or criminally responsible under Arizona’s child abuse laws.

Review of Section 1983 Lawsuits and Qualified Immunity

There are repercussions and legal actions that can result from the unconstitutional actions of a school official. One possible legal action is called a “Section 1983” claim or lawsuit.1 A Section 1983 lawsuit allows individuals to sue the government for unconstitutional or illegal actions. 

When a school employee is sued under a Section 1983 action, the employee may be able to raise a defense called “qualified immunity.” To successfully raise a qualified immunity defense, the employee must prove that his or her actions did not violate any established Constitutional or statutory principles. If the conduct of the employee is deemed to be unconstitutional, the employee can use the qualified immunity defense if he or she acted reasonably, and if the law governing his or her actions was not clearly established. If a qualified immunity defense is successful, the employee is immune from any civil or monetary liability. 

T.E. v. Grindle

On March 17, 2010, the Seventh Circuit Court of Appeals ruled that a school principal, Karen Grindle, was not entitled to qualified immunity for her actions, or in this case, her inactions concerning a band teacher, Robert Sperlik, who was arrested for sexual molestation of several elementary school students.2 According to the facts of the district court case, Sandra T.E. v. Sperlik3, the following events took place:

May 2001

• Three female students wrote a letter to their school counselor after attending the counselor’s presentation about inappropriate touching. The letter mentioned that the student’s band teacher, Sperlik, “Rubs our legs sometimes; Rubs our back to feel for a bra if we mess up and says it's ok; comments [to] me [C.E.] about my hair and how nice it looks when it's down; comments [to] [Jane Doe # 2] about how she dresses [and] that she could be a model; there is another girl in our class and he doesn't do anything to her. P.S. Please don't tell him we told you and if you do please don't mention any names!!! We're afraid to tell our parents!”
• The counselor forwarded this note to Grindle, the school principal. Grindle showed Sperlik a copy of the letter.
• Grindle also met individually with the girls who wrote the letter. Grindle claimed that the girls only told her that Sperlik had put his hand on their knees and made tapping motions to keep tempo with the music. The girls both claimed to have told Grindle that Sperlik would do things such as rubbing their legs, touching them on their private areas through their clothes, pressing his private areas into their back, and touching their breasts.
• Grindle met with both girls’ parents on different occasions. Grindle told the girls’ parents that the girls had attended a “good touch, bad touch” seminar and that the girls had overreacted and written a letter to the counselor, but Grindle refused to show the letter to the girls’ parents. Grindle also told the girls’ parents that Sperlik had “innocently touched” their daughter on the shoulder and legs to help demonstrate the tempo of the music. Grindle even assured one of the parents that she would keep a close eye on the situation because her own daughter had been sexually abused.
• After meeting with the girls’ parents, Grindle told the school’s social worker that the girls had complained about Sperlik touching their legs; however, Grindle did not show the social worker the letter or tell her about the girls’ allegations.
• Grindle wrote a memo to Sperlik and advised him that the girls’ complaints could be deemed sexual harassment and that he was to “avoid making physical contact with students and to refrain from comments regarding students' appearance.”
• Grindle claims to have notified the district’s human resources director about the allegations; however, the director had no recollection of such notification.

January 2002

• Another female student and the student’s mother met with Grindle to complain that Sperlik restrained the student by forcefully grabbing her arm. 
• Grindle informed Sperlik that he would no longer be allowed to teach with his classroom doors closed; however, Grindle did not notify any other school personnel about the girl’s complaint or about any concerns regarding Sperlik.

April 2002

• A parent anonymously called Grindle to report that her daughter felt uncomfortable when Sperlik put his fingers over her daughter’s while helping her with fingering technique on her instrument.
• Grindle reported the phone call to the district’s superintendent and also informed the superintendent that previous complaints had been filed; however, Grindle represented these complaints as “pedagogical” in nature and did not inform the superintendent of the underlying concerns of sexual harassment or abuse.
• Grindle met with the district’s director of curriculum about Sperlik at the direction of the superintendent, presumably to address any “pedagogical” concerns. Again, Grindle did not mention any of the underlying concerns of sexual misconduct to the director of curriculum.

January 2005

• The police launched an investigation of Sperlik when one of the girls who had complained in 2001 informed her mother that Sperlik had tied her with duct tape during class. During the investigation, other victims came forward who also claimed to have been tied with duct tape as part of a “game” that took place in band class.  In addition, the victims alleged that Sperlik had touched their breasts and/or rubbed their thighs.   
• Sperlik was arrested and pleaded guilty to multiple counts of aggravated kidnapping and aggravated criminal sexual abuse. He admitted “that he abused his students for sexual gratification based on his interest in bondage pornography.”

The victims and their families subsequently brought a lawsuit under 42 U.S.C. § 1983, Title IX, and various state laws against the school district and several school administrators, including Grindle. A discussion of the Title IX claims and the state claims is beyond the scope of this article.

For the purposes of the 1983 action, all of the administrators were successful in asserting that they were entitled to qualified immunity, with the exception of Grindle. The Seventh Circuit Court of Appeals held that Grindle was not entitled to qualified immunity, reasoning that “[w]hen a state actor's deliberate indifference deprives someone of his or her protected liberty interest in bodily integrity, that actor violates the Constitution, regardless of whether the actor is a supervisor or subordinate, and the actor may be held liable for the resulting harm.”

Arizona Law Concerning a School Official’s Obligation to Report Suspected Abuse

Previous articles have discussed a school employee’s obligation pursuant to A.R.S. § 13-3620 to immediately report suspected child abuse, including sexual abuse4, to law enforcement or to CPS.5 Thus, if a school administrator had a reasonable belief that a minor had been abused by a teacher or school employee, the administrator would have an obligation to report this conduct to the police.6

School employees have been penalized for waiting too long or failing to make a report of suspected abuse, especially when a child is abused in the interim. Failing or waiting too long to report alleged abuse can result in a charge of a Class 1 misdemeanor, up to a Class 6 felony, jail time from six months to one year, and fines from $400 to $150,000.7   In addition, failing to act may result in any number of civil actions, like those described above in T.E. v. Grindle.8 

The example in T.E. v. Grindle, combined with Arizona’s explicit obligation to report suspected child abuse, should serve as a reminder to all administrators of the serious civil, monetary, and criminal consequences of turning a blind eye and ear to the criminal misconduct of a subordinate employee. In Arizona, the safest course of action for both the administrator and the child is to immediately report and respond to allegations of sexual abuse.

This article is a general discussion of the possible legal ramifications for failing to respond to allegations of sexual abuse, and is not intended to provide legal advice regarding a particular situation. All schools are encouraged to seek specific legal advice regarding compliance with these and any related or overlapping laws.

References

1. While there is some debate concerning whether or not charter schools can be sued under Section 1983, it is best for charter schools to act in a manner that will not leave them open to liability, whether for lawsuits based on Section 1983 or other state and federal laws.    

2. See sub nom T.E. v. Grindle, No. 09-2920, 2010 WL 938047 (7th Cir. March 17, 2010)(Westlaw).

3. See Sandra T.E. v. Sperlik, 639 F. Supp.2d 912 (N.D.Ill. 2009).

4. Sexual abuse can be rape, incest, child prostitution, child molestation, child pornography, sexual contact with a minor, etc.

5. If the suspected abuser is a person who does not have care, custody, or control of the minor, a report only needs to be made to law enforcement.

6. If the suspected abuser is a certificated employee, a report must also be made to the Arizona Department of Education.

7. Note: A prosecuting attorney has seven years to bring a charge under A.R.S. § 13-3620 against a person who has failed to report suspected abuse.

8. Contrary to the “inaction” described in T.E. v. Grindle, A.R.S. § 13-3620 specifically states that a person who makes a report of suspected child abuse “shall be immune from any civil or criminal liability” unless the individual intentionally makes a false report. 

Jill K. Osborne, Esq., is a partner with the law firm of Udall, Shumway & Lyons. Jill’s practice is primarily focused on school law and employment law. She can be contacted at jko@udallshumway.com or (480) 461-5300. Jill would like to thank Jessica S. Sanchez, Esq., an associate at Udall, Shumway & Lyons, for her invaluable assistance with this article.