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Court Declines To Review Two Sexual-Abuse Cases

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Washington, D.C.--The U.S. Supreme Court last week declined to review two cases in which a school district was held liable for failing to prevent an employee from sexually assaulting students.

The decisions have the immediate effect of allowing two students to press forward with claims for damages against the Bradford Area school district in Pennsylvania for negligence in failing to prevent the incidents, some of which took place during summer vacation.

But in a broader sense, education-law experts said, the decisions leave open the question of whether the 14th Amendment of the U.S. Constitution imposes on school officials "a duty to protect" students from the criminal actions of school employees.

"The courts could say this is a federally protected right that could be applied in any sort of gross negligence situation," said Gwen Gregory, general counsel for the National School Boards Association.

If districts are found to have such a broad "duty to protect" their students, she said, "taxpayers, in essence, would have to pay for the actions of employees even if they didn't happen on school campuses.''

Both the n.s.b.a. and the National Association of Secondary School Principals had urged the court to review the cases, Smith v. Sowers (Case No. 89-782) and Smith v. Stoneking (No. 89-780).

The High Court's refusal to review the cases surprised some observers, because last year the Court had ordered a lower court to reconsider a similar opinion in the cases in light of its decision in a related lawsuit, Deshaney v. Winnebago County Department of Social Services.

In Deshaney, the Court held that a child-welfare agency had not violated a boy's "substantive due-process" rights under the Fourth Amendment by failing to protect him from assaults by his father.

But the U.S. Court of Appeals for the Third Circuit ruled that Sowers and Stoneking differ from Deshaney because the assaults were perpetrated by an employee subject to the school district's "immediate control."

The cases turn on interpretations of a federal law, Section 1983 of Title 42 of the U.S. Code, which allows private parties to seek damages from government officials when they have been deprived of "any rights, privileges, or immunities" set forth in the Constitution or other federal statutes.

In Sowers and Stoneking, lawyers representing two female students who were sexually assaulted argued that the district violated their due-process liberty rights because they failed to adequately protect them from the school's band director.

School officials had not acted on reports that the band director, who pleaded guilty to criminal charges stemming from the incidents, had allegedly assaulted other students.

Lawyers representing the district argued in papers filed with the Court that school officials had no "affirmative duty" to protect the students from criminal assaults because they were not wards of the state or otherwise subject to the district's direct supervision and control.

No 'Affirmative Duty'

In the Sowers case, they also argued that school officials should not be expected to protect students during the summer holidays, when the assaults in the case occurred.

The Third Circuit ruled that the district's "reckless indifference" to the earlier sexual-assault reports constituted sufficient grounds for the lawsuit to proceed.

The question of whether the female students who filed the cases will actually receive any damage awards will have to be settled in additional proceedings.

"The school district still may win," Ms. Gregory said. "It's unfortunate the Court didn't take these cases, but I think at some point they will have to settle this issue."

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