42 Trial Lawyer • Winter 2022 reasonable measures to assure that the teachers and administrators who stand as surrogate parents during the day are educating, not endangering, and protecting, not exploiting, vulnerable children.” Since the Oregon Legislature’s passage of “Erin’s Law” in 2015, the obligation of school districts to protect against abuse has included abuse prevention training for school staff, students and parents. Abuse off-campus or after-hours A large portion of schools’ services to students now extend well beyond classroom hours. Various school activities necessarily involve students spending significant amounts of time with school staff outside classroom hours and, at times, off campus. In Oregon, a school’s heightened duty to protect a student from foreseeable dangers may persist off campus or outside of classroom hours. Numerous cases from other jurisdictions also support this rule. In summary, under existing case law in Oregon and numerous other states, it is clear a victim has a viable claim against the school if the abuse occurred under circumstances where the school reasonably should have acted to protect the student from foreseeable abuse. Unique evidence Schools’ operations are influenced and directed by a complicated web of statutes, administrative rules, state licensing boards, school/board/district policies and collective bargaining agreements. As a result, schools have unique (and confusing) industry practices and jargon often used as a shield to avoid liability. For example, an unwitting lawyer investigating a claim may request a public school teacher’s “personnel file” without realizing that a “district file,” “building file,” “working file” or “grievance file” may all exist on the same perpetrator employee. The school’s labyrinth of files and disparate record-keeping requirements are intertwined with a Byzantine “progressive discipline” process that involves varying levels and mechanisms of discipline shrouded with obscure terminology like “guided plans,” “plans of assistance” and “letters of expectation.” Supporting documentation and investigative findings may be purged from a teacher’s file based on the collective bargaining agreements in place at the t ime . Un f o r t una t e l y, t he we l l - intentioned lawyer’s simple request for product ion of a “personnel f i le” suddenly does not look so simple. Another tactic schools regularly use is to invoke complicated statutory bases for refusing to comply with discovery requests — like the Family Educational Rights and Privacy Act (FERPA) and Oregon public records statutes. These are generally red herrings. Numerous courts have allowed discovery over FERPA objections in cases involving allegations of sexual misconduct because rooting out abuse through civil litigation “will serve the health and safety of students.” Similarly, neither Oregon’s state Freedom of Information Act equivalent (ORS 192.355 et seq.) nor statutes regarding access to teacher personnel files (i.e., ORS 342.850(8)) indicate any legislative intent to trump a victim litigant’s interest in relevant civil discovery. The potential dangers posed by schools’ dubious practices around discipline and record keeping have been highlighted multiple times in recent years. According to data from the Government Accountability Office, a perpetrator teacher might be transferred to three different schools before they are reported to the police — a practice called “passing the trash.” In the case of Mitchel Whitehurst, media reports detail how a supervising principal castigated Portland Public Schools for a system where prior complaint information was held in a file separate from the one Whitehurst’s supervisors had access to— leaving them reportedly unaware of his decades long history of sexually harassing female students. Prioritizing safety and support I hope you will find yourself better prepared to lend support to victims who come forward about abuse in schools. As we all know, it is only when defendants face significant financial repercussions for their abdication of responsibilities that they become be properly incentivized to increase protections. And a future generation of students who are safer in their schools — free from trauma and focused on their education, growth, and development — presents a possibility of a better future for us all. Peter Janci is a partner at Crew Janci LLP, 1200 NWNaito Pkwy, Ste. 500, Portland, OR 97209. He advocates for victims of sexual abuse and similar crimes. Janci contributes to OTLA Guardians at the Guardians Club level. He can be reached at 503-306-0224 or peter@crewjanci.com. School Abuse Claims Continued from p 41
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