On August 22, 2017, the National Association of Independent Schools (NAIS) and the Association of Boarding Schools (TABS) released their first joint report on sexual misconduct in independent schools. The report can be found on the groups’ websites.1 It is a “call to action” for schools: “We ask the leaders of independent schools and their colleagues to study these recommendations in depth and apply them to assess the efficacy of their own institution’s preparation for and response to incidents of educator sexual misconduct.” Many independent schools may look to this guidance as a road map on how to keep their campuses free from abuse and harassment. Schools may want to consult an attorney before implementing new policies on employee misconduct and assault prevention and response.
The Task Force’s report comes on the heels of intense reporting on sexual assault in independent schools. The Boston Globe, which reported on the recent Task Force’s report, reiterated that at least 110 private schools have been accused of having sexual assault occur on their campuses and that “[a]t least 90 lawsuits or other legal claims have been filed on behalf of alleged victims.”2 Many schools have started to retain outside legal counsel who specialize in internal investigation and employee misconduct in order to ensure safe campus environments.
All independent schools can benefit by reviewing and strengthening their policies, investigatory procedures, and response plans. Much of the report’s advice touches on schools’ legal obligations. For example, it recommends maintaining a comprehensive handbook for employee conduct, conducting background checks on employees and applicants, enforcing mandatory reporting statutes, preserving the integrity of evidence for criminal investigations, educating school leaders on topics such as “forensic interviews,” and other practices in responding to employee criminal misconduct.
A theme throughout the report is that it is imperative to involve a specialized attorney. The report recommends not only that outside counsel be on the school’s “response team,” but also that an independent investigator be hired in order to ensure objectivity. “The legitimacy of any investigation may be called into question if the person who investigates does not have appropriate expertise or sufficient independence from the school.” School faculty and staff are generally not trained to conduct investigations and should not be conducting investigations alone. These are key steps in ensuring that sexual abuse and harassment are responded to appropriately. If a school’s response is not legally sound, even if implemented with the best intentions, it can have a negative effect on the victim. Although schools should never be scared to respond, they should arm themselves with the right tools to respond effectively.
Another recommendation from the Task Force that may benefit from attorney advice is if a school conducts background checks into employees and applicants. The report correctly points out that “[b]ackground checks and other screening requirements vary from state to state, and schools should carefully consider their legal requirements under state law.” In Massachusetts, for example, employers may not ask an applicant about his or her criminal background on an initial written application, but may do so during the interview process or beyond (although only about certain types of crimes). A majority of states have now adopted such “ban-the-box” laws – five did so in 2017 alone – and more are likely to follow. Keeping up with a varied and quickly changing legal landscape should be a top priority for all independent schools. While independent schools should make every effort to protect their students, they must also understand and adhere to laws and regulations that are designed to protect all employees from misuse of criminal background information.
The Task Force’s report will help independent schools implement effective policies in preventing abuse and harassment. Students will be safer with legally sound and effective processes in place.