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District Faces Liability for 'Passing' Along Bad Teacher, Court Says

The Illinois Supreme Court has ruled that a school district faces potential liability for misstating the employment record of a teacher who had been disciplined for sexual misconduct to an inquiring district, where the teacher was hired and went on to sexually abuse students.

The Aug. 10 decision by the state's highest court allows a lawsuit that accuses McLean County Unit School District No. 5 of "passing" the troublesome teacher along to another district without fully disclosing his record of abuse.

What court documents in the case refer to as "passing" is also known as "passing the trash," as Education Week documented in a pair of award-winning series in 1998 and 2003 on sexual misconduct by school employees.

The Illinois case revolves around a teacher named Jon White, who taught in the McLean County district in Normal, Ill., from 2002 to 2005. He later moved to another Illinois district, Urbana School District No. 116. In 2007, White pleaded guilty to two counts of aggravated criminal sexual abuse of two of his McClean County students and eight of his Urbana students, court papers say.

An earlier court action raising claims that the McLean district's concealment of White's employment record violated Title IX was rejected by a federal appeals court, as I reported in the blog in 2010.

The Illinois Supreme Court decision in Doe-3 v. McLean County Unit District No. 5 involves state-law claims brought on behalf of two female sex-abuse victims in the Urbana schools. Their suit said the McLean district and various administrators knew of the teacher's abusive activities in their own schools and had failed to record or report some incidents but disciplined him for others by removing him from the classroom.

Yet, when the Urbana district inquired about hiring White, the lawsuit says, the McLean district gave a false verification of employment by stating the teacher had worked his entire last year there.

A state trial court found that the McLean district and its administrators had no "duty of care" to warn the Urbana district about the teacher. A state appellate court reversed and held that there was a fairly broad duty to warn the Urbana district of White's conduct.

In its 5-2 decision, the state supreme court upheld the duty of care on narrower grounds. The high court said the McLean district had no affirmative duty to warn about the teacher or to report his conduct to authorities. But the McLean district's false verification of employment did lead to potential liability.

"By falsely stating that White taught a full school year, when in fact White's employment ended prior to the end of the school year, [the McLean] defendants implied that the severance of White's employment was routine," Justice Anne M. Burke wrote for the majority. "At the time that Urbana hired White, it had no reason to believe that White's nonrenewal by McLean was the result of his misconduct."

The majority added that "where a teacher who is known to have abused children is hired in a teaching position at another school, the likelihood that students at the next school will be abused by that teacher is within the realm of reasonable probability. Thus, we cannot say, as a matter of law, that plaintiffs' injuries were so remote or unlikely as to preclude a duty owed by the defendants."

The two dissenting justices said the majority had created a new state cause of action around "passing" of bad teachers.

"In the end, the majority reaches a decision which may well be popular, given the facts and circumstances of this case and a laudable desire to protect children, but one that is not well-grounded, one that disregards pertinent statutory authority, and one that appears to do violence to precedent," said the dissent by Justice Lloyd A. Karmeier.

The state high court's decision sends the case back to the trial court for further proceedings.

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