Why Should Public Schools Be Exempt?

Doing Right by All Victims of Sex Abuse
New York State Assemblywoman Yuh-Line Niou, who voted for the Child Victims Act, is comforted by a fellow lawmaker after Niou spoke about the sexual abuse she suffered as a child (AP Photo/Hans Pennink)

Although mostly overlooked, the most important feature of New York State’s newly passed Child Victims Act may turn out to be that it allows people who were sexually abused in childhood to sue public institutions as well as private ones such as the Catholic Church. Studies indicate it’s likely that more children have been sexually abused in public schools and other public programs, such as foster care, than in Catholic institutions. That may be so only because of the size of the nation’s public-school systems, which enrolled nearly 51 million students this year. But there are a lot of people who’ve been denied justice by laws exempting public agencies.

The New York measure, which the legislature passed on January 28, confronts this with a “look-back” provision that gives plaintiffs a one-year window in the statute of limitations to file previously time-barred claims. It specifically waives a state law requiring that, in order to sue a public agency, a notice of claim must first be filed within ninety days of injury. That deadline may be appropriate for someone who has slipped on the ice in a municipal parking lot, but it falls short of justice for the child victimized by a public-school gym teacher; it can take years for a survivor to understand the damage that was inflicted. The scandal in the Catholic Church made it increasingly clear that the nature of child sexual abuse requires much more flexibility in the traditional statutes of limitation in both civil and criminal cases.

Facing the possibility of crushing legal costs and enormous settlements, Catholic bishops across the country became the loudest advocates of allowing victims of sexual abuse in public schools to be able to sue for damages. It’s a just cause, but their motives are mixed: they hoped that worries about big payouts from the public treasury would stop states from opening the statute of limitations on lawsuits over child sexual abuse. So far, ten states have allowed retroactive lawsuits for sexual abuse of children, but for the most part, public institutions have been spared. California Governor Jerry Brown vetoed legislation in September that would have reopened the window for time-barred sexual-abuse lawsuits against private organizations but not for public agencies. He wrote that the bill failed to “address the inequities between state defendants and others.”

Often enough, bishops and their spokespersons have pointed to a 2004 study that Charol Shakeshaft, now a professor of educational leadership at Virginia Commonwealth University, did for the U.S. Department of Education. The study, required under the No Child Left Behind Act of 2002, determined that 6.7 percent of public-school students encountered physical sexual abuse during their schooling; with verbal or visual harassment included, the number rose to nearly 10 percent: 4.5 million children. These crimes might have led to an avalanche of civil litigation—except that most states have laws that make it difficult to sue public agencies, including public schools.

“While I do believe that the Catholic Church seized upon this as a way to try to stop an expansion of reporting, they were right: that if you’re going to extend these deadlines they should extend across the board,” Shakeshaft said in an interview with Commonweal.

Attorney Marci Hamilton, a University of Pennsylvania professor who is a leading expert on statute-of-limitations reform—and a critic of the ways Catholic bishops have tried to avoid liability for sex-abuse claims—has also written that public schools have not received the scrutiny they deserve. “This era for public schools reminds me of the 1980s in the Catholic Church cases when random cases would appear but no one had yet seen a pattern of abuse and cover up,” she wrote in 2016. Asked where the situation stands now, three years later, she said that it’s now widely recognized that “sex abuse occurs across all organizations and parts of society.”

When Shakeshaft began working on her 2004 federal report, she found that there had been very little study of sexual abuse in public schools; the best data was in a 2000 report by the American Association of University Women. Even that was something of an afterthought; the study actually began with a focus on peer sexual harassment, Shakeshaft said, but it emerged that about 10 percent of the children cited misconduct that came from adult employees.

The majority of the employee sexual misconduct in public schools involves adult men abusing female students, followed by adult women and male students, according to Shakeshaft. “In the studies of the men who sexually abuse in schools, almost all of them identify as heterosexual,” she said. “They’re often married and have children.”

Shakeshaft said that the data in her study of sexual abuse in public schools can’t be compared with the information in the reports the John Jay College of Criminal Justice did for the U.S. Catholic bishops on clergy sexual abuse. That’s because the John Jay studies were concerned with the percentage of priests who were abusers, while her data dealt with the percentage of children mistreated. But the aggregate number of children abused in the public schools would be larger than in the Catholic Church scandal, she said.

Investigative reporters have uncovered evidence of various sexual-abuse scandals in public schools, notably in Chicago, where the Tribune last year identified seventy-two school employees who allegedly abused students over the course of a decade. The Oregonian’s 2017 investigation of Portland schools turned up a case and stirred calls for reform. And in 2007, the Associated Press surveyed teacher disciplinary records in every state and the District of Columbia to document 2,570 cases in which teachers were punished for alleged sexual misconduct from 2001 to 2005. “There are 3 million public school teachers nationwide, most devoted to their work,” the AP noted. “Yet the number of abusive educators—nearly three for every school day—speaks to a much larger problem in a system that is stacked against victims.”

Some will say that the lack of news-media follow-up to such stories—unlike the Boston Globe Spotlight team’s Pulitzer-winning exposé of clergy sexual abuse in 2002—reflects a bias against the Catholic Church. But there is something particularly hideous about sexual abuse perpetrated by men who are accorded the sacramental powers and prestige of the Catholic priesthood. The hypocrisy involved when bishops claim moral and spiritual authority while concealing sex crimes will likely return the story to the media spotlight until those who bear responsibility are held accountable.

Even so, the practice of “passing the trash”—the term commonly used for passing abusive teachers from one public-school district to another—parallels the Catholic Church’s history of transferring priest abusers from one parish or diocese to another.

 

The problem of sex abuse goes far beyond the Catholic Church—and in New York, at least, the law has caught up.

One quickly finds a lack of transparency in public-school systems when it comes to sexual-abuse allegations against teachers. New York state and city education officials wouldn’t release numbers on sexual-abuse cases against teachers or other school employees when Commonweal requested them. But New York City’s independent commissioner of investigation for the schools reported on its website two years ago that in 2016, the office received 622 sexual-misconduct complaints against school employees. Investigations were opened in 218 cases, with charges in 16 percent of the cases, about 36, substantiated. (This was the most recent report.)

The city education department responded to a request for comment on this with a written statement: “The safety and well-being of students is our top priority, and all employees must report any allegation of sexual harassment or abuse of students by any adult. Failure to report may lead to disciplinary action, and the DOE also has specific and strict procedures in place for reporting, investigating and addressing any allegation of misconduct by a DOE staff member.”

The New York City school system’s sprawling website contains no easy-to-find information on how to report sexual abuse committed by a school employee. A spokesperson for the city Department of Education suggested searching for two densely written, bureaucratic directives known as chancellor’s regulations A-750 and A-830

In the early 1990s, New York City schools were pushed into taking a leading role in curtailing the sexual abuse of students, thanks to the efforts of the special commissioner for school investigations at the time, Edward F. Stancik. Appointed with the expectation that he would concentrate on rooting out political corruption, he dismayed many school officials by putting so much effort into investigations of sexual abuse.

Stancik, who was a lector at St. Patrick’s Cathedral, was relentless. In 1994, he reported that in three years, his investigators had substantiated one hundred allegations against school employees. During his twelve-year tenure—he died in 2002 at the age of forty-seven—he pushed to make New York a national model for how school systems should prevent and detect the sexual abuse of students.

Despite Stancik’s high-profile sex-abuse cases in the nation’s media capital, many school districts across the country failed to implement basic reforms. A 2010 report by the General Accounting Office found that teachers who abused students were being allowed to resign rather than face disciplinary charges, and often received positive references for future employers. Four years later, the same agency reported that most states did not require that school personnel be trained to recognize and prevent child sexual abuse.

Ironically, the Catholic bishops—who had failed to prevent clergy sexual abuse and in many cases enabled the offenders—drew more attention to the problem in public schools than anyone else. Despite their lack of credibility on the issue, they mounted an often-persuasive argument that it was unfair to hold the Catholic Church accountable for sexual abuse of children when public institutions got off easily.

Such legislation was “unfair, unequal and prejudicial” and anti-Catholic, as Archbishop Charles Chaput put it in 2006. Chaput’s message resonated with some Catholics. First Things took note of Chaput’s argument over the disparity between suing Catholic and public institutions, and credited the “feisty and resourceful” prelate with “leading the fight” against proposals to extend or abolish the statute of limitations on sexual-abuse lawsuits. The Denver Post also noted in 2006 that Chaput, archbishop of Denver at the time, had come up with a new strategy: “The church’s argument in Colorado appears to be a novel one: that it’s unfair to hold churches and private nonprofits to a different standard than public schools, which under governmental immunity are difficult to sue under state law.” (The Denver archdiocese was also unique at the time in creating a fund to compensate survivors; Colorado has not changed its statute of limitations on sexual-abuse lawsuits.) Chaput continued to point a finger at abuse in public schools as archbishop of Philadelphia. Last fall Pennsylvania state legislators refused again to open a window in the statute of limitations for child sexual-abuse lawsuits, contrary to calls from the state’s attorney general and the grand jury he empaneled.

In New York State, where more than a third of the residents are Catholic, the bishops kept up a bruising political battle to prevent the legislation from passing. For the most part, they succeeded because of contacts in the State Senate’s Republican majority. In 2009, however, a Democrat-controlled Assembly balked at passing the measure even though the Senate, then briefly under Democratic control, favored it. Brooklyn’s Bishop Nicholas DiMarzio allied with Assemblyman Vito Lopez, who carried clout because of his role as Brooklyn’s Democratic leader. The tide turned in 2019 after the Senate went Democratic. Cardinal Timothy Dolan of New York ended up saying he supported the Child Victims Act once it was clear it applied to public as well as private institutions.

According to a report that Professor Hamilton issued through the advocacy group Child USA, New York had been one of the three worst states (along with Mississippi and Alabama) for a child sex-abuse survivor to file a lawsuit in. Now, she said, the New York law “clearly creates a level playing field between all institutions.” It mirrors Delaware’s law, she said, and the intent of the laws in Minnesota and Hawaii. Other states that have allowed time-barred civil cases to be revived are California, Connecticut, Georgia, Massachusetts, Michigan, and Utah.

Brian Kent, a lawyer who specializes in filing sexual-abuse lawsuits, said Pennsylvania—where a state grand jury called for the statute of limitations to be opened for sexual-abuse claims—is enmeshed in a debate much like New York’s. Kent rejected the charge that the Catholic Church was being targeted unfairly, saying that Pennsylvania has always had an immunity statute that, with several exceptions, protects public agencies against lawsuits. He said he would like to see Pennsylvania waive the immunity to allow child sex-abuse cases, but added, “that’s a pretty big ask.”

One of the saddest aspects of the effort to compensate child sexual-abuse survivors—whether through litigation or through the compensation funds set up in many dioceses—is that despite the mass of claims that have been made in recent years, there are many cases that go unreported. Hamilton said that a third of the cases are disclosed during the victim’s childhood and a third in adulthood; the other third never come forward.

Paul Mones, a Los Angeles lawyer who has filed sexual-abuse cases around the country, said most victims do not file legal claims. “One of insidious effects [of sexual abuse] is the victim tends to blame himself or herself,” he said. “The time has come for institutions not to hide behind the victims’ reluctance to come forward.”

The Catholic Church in the United States has paid settlements of some $3 billion over clergy sexual abuse, and at least twenty-two dioceses and religious orders have filed for bankruptcy protection or announced an intent to do so. It’s a painful process for an institution that in other ways has done so much good in American life, but if the church is going to be true to its mission, it’s necessary. As Georgia State University law professor Timothy D. Lytton wrote in his 2008 book Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse, “lawsuits have played a central role in shaping policy responses to clergy sexual abuse,” as in other areas such as tobacco and guns.

As Lytton reports, the Catholic Church’s cover-up of clergy sexual abuse was brought to light in 1984 when a court clerk leaked information to the news media about a secret settlement church leaders in Louisiana reached with victims of Fr. Gilbert Gauthe, a serial abuser. Court records reported in the news media eventually made clear that the problem went far beyond Gauthe’s case. Now, there’s an even broader understanding that the problem goes far beyond the Catholic Church—and in New York, at least, the law has caught up.

Published in the March 8, 2019 issue: 

Paul Moses, a contributing writer at Commonweal, is the author of The Saint and the Sultan: The Crusades, Islam and Francis of Assisi's Mission of Peace (Doubleday, 2009) and An Unlikely Union: The Love-Hate Story of New York's Irish and Italians (NYU Press, 2015). Follow him on Twitter @PaulBMoses. 

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