The legal toll of candor in personnel recommendations.

In a stunning development, a school district in Orange County Calif., agreed to pay $6.8 million to settle a sexual molestation lawsuit involving a teacher. The case arose when six boys charged they were molested by their 4th-grade teacher. What makes this case unique is that the accused teacher received a positive recommendation from his previous school district where the molestation charges were later filed.

Based on this case, two vital questions should come to the fore for any pro-active school system leader: What responsibility do school leaders have to provide honest and candid responses to questions about classroom personnel who are being considered for employment by another school district? What obligation do school leaders have to ensure the best employees are recommended for teaching positions?

Even though the teacher in this case was found guilty, the criminal verdict did not protect from liability those school officials who had recommended the teacher to his new district. The lesson here is obvious: School officials take great risks when they fail to meet their obligation to protect students from dangerous teachers.

Four of the students involved as plaintiffs in the lawsuit attended school in another Orange County district where the teacher began working after he left the Ocean View School District in 1999 with a positive recommendation. Based on the sexual abuse conviction in 2000, the teacher, Jason A.H. Abhyankar, has been sentenced to 24 years in prison.

In a related case, Davis v. Monroe County Board of Education involving sexual harassment, the U.S. Supreme Court stated that lawsuits may proceed when school officials are aware of undesirable behavior yet are deliberately indifferent toward it. Failure by school officials to protect students through their legal and moral obligations may result in serious consequences, as the Orange County case illustrates.

Qualified Privilege 

It is not uncommon for school officials to provide oral or written information about a teacher or paraprofessional who seeks employment in other school districts. When such requests are made and school officials respond in a truthful manner in conjunction with their official duties, they are protected by qualified privilege. Qualified privilege is limited by the requirements of good faith and duty.

School officials who make statements while responding to inquiries regarding personnel should do so without malice. Their statements must be truthful and based on reasonable grounds. Therefore, it is appropriate for school leaders or district personnel directors to share factual information with inquiring officials if it is vital to an employment decision--even when the information is negative.

For example, when documented evidence supports charges of sexual misconduct by a school employee, it is highly appropriate to share this information with other school officials who have a need to know. But qualified privilege does not protect school leaders from liability when reckless statements are made about a teacher without a regard for truth. False statements are not protected, and qualified privilege is lost where evidence shows a school official acted with malice or a callous disregard for a teacher's reputation when providing reference information.

When the current employer and the recipient of the information share a common interest, they are protected by a qualified privilege when the communication is reasonable to achieve their purpose. School officials should be mindful, however, that qualified privilege is lost when information is shared with others who do not share a common interest and have no need to be privileged to the information. The state court in California ruled that school officials in the Ocean View district did not exercise good faith in the case involving Abhyankar.

The protection of qualified privilege allows school officials to be diligent in their efforts to protect students from undesirable employees.

Predicting Behavior

Foreseeability is a crucial element in liability cases, especially in those involving negligence. Foreseeabililty is defined here as the school officials' ability to predict or anticipate that a certain behavior by teachers may prove harmful to students. Once this determination is made, proper steps must be taken to prevent harm to students. Failure to act responsibly may prove costly. Whether harm is foreseeable or not is a question of fact that will be determined by a jury in addressing liability cases.

Certainly it is foreseeable that a teacher who sexually assaults students in one school may conceivably commit the same act in another school if officials are not made aware of the teacher's past conduct. In the California case, school officials from the previous district would be negligent for failure to provide crucial and factual information regarding the teacher's employment record to future employers. Courts will find it difficult to defend school officials' actions in liability cases for failure to provide essential information regarding an employee's negative performance record, particularly in light of the protection afforded under qualified privilege.

School officials have a legal, ethical and moral obligation to protect students from unlawful conduct by school employees. Hopefully, the Orange County case will shed light on the risks involved when school officials fail to act appropriately in matters involving candid personnel recommendations.

Nathan Essex, a professor of education law, is president of Southwest Tennessee Community College, P.O. Box 780, Memphis, TN 38101. E-mail: [e-mail]