Theories of Liability for the Sexual Misconduct of Teachers

Abstract

This article reviews two theories of liability adopted by courts to resolve complaints by school children for the sexual misconduct of teachers. Student complaints of sexual abuse by teachers has increased dramatically in the past six years. In each case, students have sought to hold school districts and school officials responsible for the injuries students have suffered while at school due to the sexual misconduct of their teachers. Courts have been reluctant to hold school districts and school officials financially responsible for the acts of individual teachers or other school employees. This result is accomplished through the application of two legal theories—the Constitutional Duty Rule and the policy, custom or practice theory. This article illustrates the way courts misapply these two theories of liability and offers an alternative approach to the issue of the sexual abuse of students by their teachers that promises more meaningful protection of students. The alternative approach encourages school districts and school officials to develop a plan of action that encourages school officials to address the problem of the sexual misconduct of teachers toward students in ways that ultimately offers students better protection from sexual abuse.