wallace06

Wednesday, March 1, 2006. "Breakfast with a Lawyer," Shawn Wallace. "Preventing Harassment and Abuse"

A note about Ms. Wallace's comments: These materials are intended solely for the use of the members of NAPSG, and are opinions only and not intended as legal advice. Laws vary from state to state and legal issues are fact specific. For specific legal advice, please contact your attorney.

MS. LEE: Good morning. Since there's silence, I guess we might as well start.

Thank you all for coming. I'm going to read the biography that was sent to me by Shawn Wallace's office, but I have to tell you that the reason she's here is that she is the lawyer for my school, Porter-Gaud, and she is one of the best things that ever happened to the school and to me. You cannot imagine how wonderful it is to have someone like Shawn there to help you be courageous, as we discussed yesterday. She has seen the school through some very troubled times, but what's nice to know is, she's equally good at taking the school through calm waters.

Now, here is what the bio says, and there are various interesting fascinating little tidbits here. Shawn is a partner with the law firm of Young Clement Rivers in Charleston. She earned her BA in broadcast journalism at the University of North Carolina at Chapel Hill in 1978, and her law degree at the University of South Carolina School of Law in 1983.

When you hear Shawn's voice, you will realize why she was in broadcast journalism to begin with. I think that her voice probably seduces juries.

Between degrees, she worked as a news and weather reporter for WBTW-TV in Florence, Myrtle Beach, South Carolina. At USC, she was named to the honorary societies the Order of Wig and Robe, and Order of the Coif, and received the American Jurisprudence Award in a number of fields, including business corporations and labor law.

Ms. Wallace has engaged in business-related litigation and corporate counseling since 1983, and concentrates in preventive corporate counseling and compliance, legal compliance for independent schools, employment and student-related manuals, contracts, and policies, as well as administrative and federal litigation.

Now, of course, when I arrived in July, as most of you know, that's handbook season, so Shawn saw me through the handbooks.

She works extensively with management, including governing boards, heads of schools, CEOs and human resource professionals to audit and fine-tune legal compliance in all matters related to employee relations and policy. She is certified by the South Carolina Supreme Court as a specialist in employment and labor law, and has also served on the Employment and Labor Law Specialization Advisory Board of the South Carolina Supreme Court. She currently serves as co-chairman of the American Bar Association General Practice Section, Labor and Employment Law Committee, and has served as its newsletter editor.

Her research and articles on employment law are published in regional and national publications.

And as I say, she has been an absolutely invaluable aid to me. When Bruce and I were thinking of another session for this conference, in the back of my mind inevitably was some horrible matter, probably legal, pending in my mind, so that I couldn't concentrate on the NAPSG program. So we decided we'd bring the lawyer here, and if any of you were in the same position, you could ask her questions or just ask her questions of general interest. But I'm going to turn it over to Shawn right now. Thank you.

MS. WALLACE: Liza, I don't know that I have ever had a kinder introduction. I appreciate that, and it certainly has been a joy working with Porter-Gaud. And of course, it's a joy for me to be able to work with independent schools because of the various and numerous issues that come up, and the wonderful people who work there.

So this morning, I want to talk with you a little bit about harassment and abuse. And I know this is a bit of a weighty subject right after breakfast, so we'll spend a little bit of time at that, and then I would like to open this up to any questions you may have on any topic of concern to you this morning.

First, I'd like to say that, unfortunately, schools must act with a certain knowledge that molesters will go where the children are. And organizations serving children, of course, are responsible for providing a very safe environment. So I want to talk to you about a few ways to reduce the likelihood of molesters being at your organization, at your school. And what you need to do, in short, is to take early action to reduce opportunity.

Often schools are prevented from taking early action to limit the opportunity of abuse for certain various reasons. One is attitude, and that's the attitude of denial. "It can't happen at our school. We've been established for so long and all our teachers have been here for so long, it's not something that can happen to us."

Often there's a fear of offending employees or offending volunteers. "We really don't want to do background checks because everybody's been here forever. We know each other. It's going to cause our teachers to go up in arms, and we don't want that to happen. We don't want to have complaints about any type of new policies or about background checks. We don't want any lawsuits about invasion of privacy." So there's that fear factor.

Additionally, there's the perceived expense. We all know how expensive lawyers are, and they are. We all know how expensive our own time is, your own time is, and it is. I'm here to tell you, it's much more expensive on the back end, after you have had a situation arise, than it is on the front end. There's a perceived lack of time and time pressure and I know that you all experience that. And it's true. You have fires to put out, parents knocking at your doors, various things that need immediate attention, and this is really a long-range planning type of project.

Then finally, there's the uncertainty of what to do, how to act to make sure that you reduce that opportunity, and so I'm going to tell you a little bit about that this morning.

There are some simple steps. I represent the local Girl Scouts. I don't represent the Boy Scouts, but I do think that the Boy Scouts have a very wonderful web site and have put together a wonderful program for training and preventing abuse. Their main rule is really a buddy system type of rule. Never allow one adult with one child. So either two adults and one child, or two children and one adult.

I know in a school thatís difficult, because there's a need for privacy in certain situations. Teachers need to be able to talk to their students, to have a conference with their students, so an option for that is sort of an open-door or window-to-door policy, where no one is in an exclusive place with the child that the child cannot be seen.

Of course, background checks on employees and certain volunteers are also essential. Then it's important to understand why sexual offenders abuse children. One, of course, is sexual arousal by children. And then secondly, there's an internal justification. They're saying, "It's okay, it's okay to ask for this." And then finally, there's a noninhibiting environment, not expecting to get caught.

That's where the school can step in. The school can step in by eliminating that noninhibiting environment. Unfortunately, as I said, the molesters are going to go where the children are, so your role, as I see it, the school's role, is to have them go somewhere else. Unfortunately, they will go somewhere else, but you don't want them in your institution. So hardening the target is the effort to repel potential offenders with procedures that place barriers for their access and capitalize on their fear of detection.

Screening and periodic checks of the sexual offender's register are essential. Management and training tools, including policies and clear training on how to use those policies, are also essential for reducing that risk. Policies such as field trip policies, overnight policies, and also sexual harassment and abuse policies.

Also, you need to train staff to recognize targets, children who might be targets of abuse. Typically, we look at children from dysfunctional families. The molester knows this. The families are going to say, "We trust the school over this bad child," so with a vulnerable child, a child who has a history of some issues of behavior, those are the types of children that may potentially be targets.

Also, for parochial schools or schools that have clergy on staff, you need to watch for families that are very devout and that encourage close personal relationships with clergy and their child, because of course, they're going to then believe the clergy over the child. Not necessarily "of course," but certainly the potential is there.

You also need to have a plan for hiring for risk reduction. Job descriptions can help you have an analysis of the height of a risk, and I'm also happy to answer any questions about other issues that job descriptions can assist with, including the Americans with Disabilities Act and the Fair Labor Standards Act, making sure that the person the job classified as the person actually performing it, whether it's exempt or nonexempt.

But also another key function for job descriptions can be a risk assessment that includes the developmental level of girls that the person may be working with, the potential to be alone with a student, the responsibilities over the child, the power and control that that person has, how much supervision that person has, and the potential that that person has to intimidate or threaten a child or isolate a child away from others.

So the higher the risk, obviously, the more you want to make sure you have barriers in place, and the deeper you want to go in your hiring process as far as looking into background of that individual that's applying for the job. So you want to develop a recruiting strategy that has written applications, and the application should clearly have provisions in it that show you exactly where that person has been, what job they have been in, and every state that they have ever been in, and so when you have your oral interview, you look at the written application and if there are any gaps, you make sure you fill those gaps in. That's essential in the interview process.

We'll talk a little bit about background checks. And then the hiring decision process also needs to be something that you look at and perhaps have a team approach, because it's good to have a variety of opinions and listen to people's gut about potential candidates.

Also, you want to develop an orientation program that includes training on written policies that will help you reduce and look for issues of abuse or of sexual harassment or molestation.

So you developed your job description with risk analysis. At your basic level, if there's just a basic normal risk, you want to still look at reference checks. Due diligence would require that you check their employment references as well as their personal references, and there should be a policy in place that assures that you have somebody that does it and does it in a way that they get the most information possible.

You would want to have personal interviews and a confirmation of the education. Make sure you get a transcript, and make sure the person has actually gone to the schools that they say they have gone to. Then again, looking at written application for gaps in places that they have lived, gaps in employment, and where they have job-hopped a good bit.

Frequently if you have got a moderate or a high-risk individual or position, you would want to look at state criminal records, do a state criminal records check. If you can, do an FBI check, which is difficult in South Carolina, but in other states you can get an FBI check.

The Sex Offenders Registry. I suggest that you have somebody periodically look at that registry in at least your state, just as a periodic matter, whether you're hiring or not. But for the hiring, you want to look in the registry for every state in which that person has lived or worked.

You may want to look at the motor vehicle registration, driver's license check, and also check on professional licensure and certification.

And then infrequently, for your very highly sensitive positions, some organizations consider alcohol and drug testing. Home visits are also an option. We can talk a little bit if you have an interest in psychological testing. There are some risks there under the Americans with Disabilities Act.

Experts say when you're screening applicants, that there are certain red flags to look for. These are, for example, someone saying that "Children meet my needs," or a person with no peers. A person who really is isolated or was isolated as a teen or an adult, who lacks outside interests, that all their interests are focused on children. A person who perhaps has poor social skills with adults, problems with adult intimacy, somebody who is rigid and has a very punitive approach, or a punitive view of discipline. Someone who's had multiple relocations, a lack of impulse control, risk-seeking. You can ask about hobbies and what the person does in their free time.

A resistance to assessment procedures. Someone who complains that the questions perhaps that you ask are too personal. Or exhibits anger. A preference for certain age or disability. Somebody who's overly active in community affairs that involve children, someone who has friends who are much younger than themselves, or someone who calls children innocent or pure.

So those are some red flags that experts say that you need to look for in the interview process.

Once a person is hired or once anyone is working for you, you do need to be alert for grooming. Any employee or teacher who takes a special and unusual interest in one or two particular children, takes an interest in their family, does things with them outside of the school environment that would allow them to be alone. And I will say that often, molestation takes place right under the nose of the parents, because the person has also groomed the parents.

So those are things that you need to be sure to look for. Of course, you'd want to monitor your employees by dropping in at unexpected times just as a check, and again, make sure all your windows and doors are not covered.

As to the students themselves, to the girls themselves, it's important to train them -- and I'm sure that you all do -- about sexual abuse and about boundaries, about their bodies and rules for sexuality, as well as demonstrating generally physical safety concerns, because I think that goes hand in hand with protecting a child from abuse.

Finally, you want to stay alert and make a plan for receiving a report of abuse. Again, that can be part of a handbook type policy that not only prevents harassment and abuse, but makes it very clear that the school supports parents, students, teachers, anyone coming forward with any type of concern, and that the school will definitely take it seriously and will definitely act on it, and communicate that action in a way that a person who makes a complaint feels that they have been heard and whether or not the action is exactly what they want, they have been heard and the school takes them seriously.

So depending on what your policy is and depending on the ability to have a high level of training for some of your lower-level employees, you want to make sure that whoever is designated to take a complaint -- and I think it's good if teachers themselves are trained to be able to take complaints -- can prepare themselves emotionally to hear what's being said, will tend to believe a child and not just be dismissive, not assign blame in any way, but to be able to listen and hear what is being said, not ask targeted questions that could potentially cause problems in court, and tend to the immediate safety needs of a child, know exactly what they need to do as far as reporting the report they have perceived to the appropriate party in the school, usually the head, to assure that an investigation takes place and proper steps are taken, and knowing the available resources that the school has.

South Carolina has a provision in its law -- and other states do, as well -- that requires a teacher, a principal, most other employees in the school, counselors, to report to either the Department of Social Services or to the police any report of what is child abuse, whether it's emotional or physical or psychological. So in that case, the person who gets the report also needs to take that information or know to take that information to a higher source to make a decision on how outside reporting needs to be done. Again, that's confidential in South Carolina and I think in most other states there would be the same types of provisions.

I am happy and open to talk about the policies that potentially could be in place, any other questions that you may have about harassment or abuse or any other questions you may have in general. Yes, ma'am.

MS. HOLLNAGEL: We just had one case, and I just want to tell you all about it because it involved outsourcing. We are all outsourcing certain activities in our schools right now, and this was a part of our school that was outsourced and it was a person not hired directly by us, but by this other agency that was the guilty party. So you may adjust that a little bit. It's tricky.

MS. WALLACE: Yes. I think, again, you want to remember the signs and be alert. But train your employees so that they recognize the situation and so that anybody who sees something that seems unusual or out of the ordinary, they should report it immediately. I do think it's very valuable that you bring that up.

MS. HOLLNAGEL: It was very expensive.

MS. WALLACE: I'll bet. Third parties. Under Title VII, employees are protected from harassment by third parties. They can be vendors, they can be independent contractors, or temporaries, or even parents that come onto campus. What I have suggested for schools is that they have a similar policy for their student. Even though their students are not protected by Title VII, they should have the same protections from outside sources, vendors, and others who may come on campus that your employees have, certainly, and that the parents should know that if something happens to a child, whether it's involving a school employee or somebody outside, that they should also report that to the school, so everybody knows that they should be on guard to protect these students, to protect these girls. Does that answer your question?

MS. HOLLNAGEL: Yes. Well, I guess one more point. Make sure that your outsourcing agency is providing training for their employees, also, even though you may put them through your orientation.

MS. WALLACE: Right. They have a duty under Title VII to assure that their employees don't violate any of the provisions against discrimination based on sex, race, age, national origin. But once you hire them, you also have that same requirement if they're your employees for purposes of Title VII. So they fall under your policy, and, in fact, they should see your policy and sign it, indicating that they are aware of it and understand it.

MR. GALBRAITH: What was the area of your school? Like food service, that kind of thing?

MS. HOLLNAGEL: Security.

MR. GALBRAITH: Thank you.

SPEAKER FROM THE FLOOR: I have two questions for you. The first is that I'd like for you to elaborate a bit more what you mean by training teachers to take complaints, because that sounds so counter to the legal advice we've received, which is that you train a team of people to take complaints and you help teachers to understand what to recognize, and help them give them language to take the child to one of your team members who's trained to take the complaint, because sometimes teachers can put the school at greater legal risk than they may mean to.

So first I'd love for you to expand a little more on that. And secondly, we've recently received a call from a parent who was very concerned because she has noticed, checking the sexual offender registry, that there are two people within two or three blocks of our school who now live in the neighborhood, and she wants to know what we are doing to protect the children from them. I live in Manhattan, so I think, well, if you live there, you're taking a risk to begin with. But I'm just curious if you have any thoughts or recommendations of what a school can do -- because we are a private entity -- to support our children in that way.

MS. WALLACE: Thank you. As to the first question, I think what you have heard from your legal counsel is consistent with what I'm trying to say, that it depends on your comfort level with who can receive the complaints. A teacher is going to hear a complaint, and they're the front line. They are the ones the students may trust the most and feel more comfortable talking to rather than your principal or your dean or your headmaster.

So the teacher needs to know and be trained at least to recognize and hear the complaint, and to know what to do with that complaint, and to take it to the person or team that is then trained to handle it and investigate. So I agree, you should have a certain group of people that will investigate, that will know exactly how to do that.

But teachers do need to be trained to hear it and recognize it. The worst thing that can happen is for a parent to make a complaint to a teacher but say, "Well, I really don't want anything done about it. I just wanted you to know," and for the teacher to say, "Okay," and not to know that he or she has to say, "I have heard this complaint, and under our requirements and for the safety of your child, as well as others, I'm going to have to take this to our team," in this case, or to whoever the person is, "I'm going to have to let them know about this and we will let you know, parent, what comes of that."

On your second question about security, security obviously is something that you want to look at, not just from the pedophile on the block, but for a number of reasons. Anybody could walk by and walk into a school if you don't have appropriate gating, appropriate passwords to get into the school, or whatever needs to be done in order to assure physical security of your students. It's always good to have a check-in system and somebody that's right there at the entry point who can see and recognize people, and have people sign in. And often schools have the students come to that front office rather than allow people that are odd -- you know, workers or whoever else -- to wander through the school. People will be escorted in the school if they need to be doing work there, so that you don't have people wandering the halls, as a rule, whom nobody recognizes. That way, people will know that something is up if they see someone wandering the halls, whether they recognize them or not.

SPEAKER FROM THE FLOOR: There's nothing legally the school can do, because I'm assuming these people have a right to live in the neighborhood, but I don't think there's anything legally the school can do to make a statement, if you will, about their living there.

MS. WALLACE: Recently published in our newspaper was a map of the local area with dots where pedophiles were registered. And you're right. There's no way to have a school that's not within a location of a registered pedophile. They're required to go to their neighbors and advise. It may be recognizable by your parents, who are vigilant, obviously, that there is somebody in the neighborhood.

I think all you can do is just make your students and your parents aware that this is a risk everybody takes every day, every child takes every day, and that they need to be aware of that risk. Being aware and alert is a wonderful way to prevent. You don't want to be overly frightening to people, but it's just the way the world is, unfortunately. Training children, training your students to be aware of their boundaries, their sexuality and physical protection is that's one of the issues that might be raised, because I think that there is an attitude of denial, that this doesn't happen in our neighborhood, and it does.

MR. GALBRAITH: Operationally, I would only suggest that after this parent has brought that to somebody at your school, I would recommend that you find some way to make them realize that you have reacted to what they have said. That's the thing that I found over the years, that if they think that it's going into a black hole and nothing ever gets done with anything we bring to anybody, that starts to pile up and compound. Now, whether you would say at a meeting or in the newsletter that the school does everything possible to make sure that the entire environment is safe, including traffic, da, da, da, da, da, da, undesirable people that live in the neighborhood, et cetera -- I'd drop it in the middle of a laundry list or something, and say, "If you have information about this, what are you to do with that information?" Or, "If you want to know more about it, here's who you contact."

I sure would address it, rather than not talk about them bringing this to somebody's attention, because that person can get after you then. They'll go on the warpath and say, "We told them two years ago and nothing happened." And of course, something did happen. You're talking about it, you're learning about it, but they don't know that. I always thought shining a light on it was helpful.

MS. WALLACE: I think that's a good suggestion, good comment.

MS. LEE: I also think that we're all very casual about the recommendations that we get from our colleagues, because I have twice called a head to ask about an employee I planned to hire, and the head told me it would be fine, and then when the abuse occurred, it turned out that it had occurred in the other school, as well. I wish that NAIS did more discussion of this. Porter-Gaud -- I'm probably not telling you anything new -- had a very high-profile pedophile case. If you Google Porter-Gaud, the first thing you get is our website and the second thing you get is an article on the case. And this man was fired, but he was given a recommendation to another school, where he continued his abuse.

And I thought it was an extraordinary circumstance, but I discovered it wasn't, because it happened to me twice. So I think that we all really deny a lot as well. It makes it easier for me to now understand how parents can deny it when I know my own colleagues have, as well.

MS. WALLACE: And I think part of the point there, Liza, is that the internal justification of your colleagues has been, "Well, we don't really know."

MS. LEE: I know.

MS. WALLACE: But with a gut feeling, I mean, and of course, also, there's the issue of, "Well, will there be a defamation claim if we say something that we don't really know?"

But again, I would challenge you: Which lawsuit do you want?

SPEAKER FROM THE FLOOR: So keep pushing and pushing and pushing with a head, another head, and you do have a gut wonder sometimes, and you know, you're reassured and reassured, and there is no comeback at all, but how much are we free to say? You know, if somebody is leaving our school, how free are we to be able to say, you know, "Nothing ever happened, but I was always a little worried," or something to that effect? Because I know I have felt that before as people move around. Are we free to use our own instincts after we've worked a thousand years for children and teachers?

MS. WALLACE: Well, again, there could be somebody who comes back to you with a defamation claim, but I would hope that with the closeness among colleagues that you could at least express your concerns about a person's judgment.

SPEAKER FROM THE FLOOR: That's always a good word.

MS. WALLACE: Concerns about, "You really want to look closely at this person," and if you really are comfortable talking with the person, you know, just your gut feeling that there are some issues there that --

MS. MacDONALD: Don't know what they are, but...

MS. WALLACE: That suggest problems, serious problems. That's why you're letting that person go.

SPEAKER FROM THE FLOOR: And I think that's also why it's significant to actually talk to somebody, as opposed to just e-mail references or taking the references you get sent out by agencies.

MS. WALLACE: It is important to talk to people. It's also important for the person that's talking to you to listen, and I think that doesn't happen sometimes. I think people hear what they want to hear, and they gloss over what you're trying so hard to tell them.

So you do want to be very careful if you respond to a written reference. And if you respond in writing, sometimes, you know, they'll put a form or a checklist, or whatever. South Carolina has a specific statute as far as responding to a written request. But that's where you can really get tripped up, is if you say, "This person's character is good," or whatever, and then it moves on that there's a problem.

So I'd say you want to get legal counsel to look at anything you put in writing, particularly if you have got that type of concern. And if you're trying your dead level best to report a message when somebody calls you on the phone, you might want to make a note of what you told them. Even though potentially that could be a defamation claim down the line, it also will defend you if there's a claim that you passed somebody along improperly. And if the law hasn't gone that way, I'm sure it is going that way.

SPEAKER FROM THE FLOOR: One thing that disturbs me that there are heads of school who don't call to ask for a reference when my school has been the most recent employer, not because I don't have necessarily an issue of having had them have sexual abuse or harassment, but that somehow they'll listen to the prospective employee, who doesn't list the head of school as a reference and we don't get called.

MS. LEE: I agree. I think that's a more usual situation.

SPEAKER FROM THE FLOOR: And it isn't necessarily over something that would be libelous or defamation of character to speak about, but there are. And I know I try to signal to someone I can't give a recommendation for, or truly endorse, but there are issues. If you called me, I'd tell you, because I know you. There are other heads that I don't know, I may never have seen. I have to be careful what I say, because I don't know what could be said back.

But I often say, "I can just tell you this person has been employed by me from this time to that time," and to me if somebody tells me that, that's huge signal that there are a lot of things they can't talk about on the phone. Because I think mostly we are very collegial with each other, and I say to somebody, "He's wonderful, they have left because of family matters and I'd hire them back in a heartbeat." I often ask, "Would you hire them back?" And if I get, "No," I ask, "Why not?" There are ways you can clue me. There are ways we can tell each other things without having to say it. But often I don't get a chance to do that.

MS. WALLACE: I think you're right. I have been called for a reference in the past of somebody that I would not recommend, and been called by a lawyer who should know better, who is absolutely in the same field, and I have said, "You know, I can't say anything, but of course, under South Carolina law, you can ask in writing for her file."

And they didn't ask for her file, and it was all in there.

MR. ERDNER: I'm Buck Erdner, with Aladdin Food Management. Just a comment I'd like to make when you're dealing with outsourced work. Make sure that the firm you're working with, whether food or security, does, in fact, themselves have employee handbooks. And make sure that in that handbook there's a place for the employee to sign. This is good for both the contractor and also the school, because if there are any deferential issues, you have got documentation the person already read this material and you don't have to go through a whole process to document it.

The third thing in that area is, make sure there's a statement in their handbook that is deferential to your handbook so if there are conflicts between these things they always defer to whatever your policy is. So if you have a dress code policy or if you have a grooming policy that's not in theirs because of the janitorial service, always do that.

We have a lot of turnover, and if you have a security check, make sure that they're using your security company so that it can be processed quickly. Because a lot of times these people are moving through jobs, and there ought to be a very quick way to get them verified. Because if they don't, they're going to take a job down the street for ten cents more an hour.

And the last thing is, always make sure that these people -- the question that you mentioned before, how to give a tip or something like that. Because there's so much communication and dialogue, it's always like if you're trying not to recommend the person, then you can say, "If I had a job available, you might want to ask me, would I hire them back, and I probably would not." So in essence, you're creating a situation where you can give a reference without giving a reference.

MR. GALBRAITH: And one other thing to add to that, if I would, I was in charge of a boarding school that had in its catalog pictures of the students from multiple states. When the issue came up then, the parents of the child who had a complaint wanted it adjudicated in their home state because we were an international school. The cost of doing that was exorbitant, and so we had to settle it.

So all the provisions of the contract should be interpreted under the laws of the state where you are. It's really important to have in all those agreements, even to supersede the subcontractor.

MS. DALE: I just want to share a positive story. I'm from a fully residential boarding school in New Hampshire, St. Paul's School, and we actually do faculty training two or three times a year for everybody. But we also offer special training to anyone whom we think might need a little extra help.

We had one such young man with us who still is with us, whom we have had one-on-one training with our legal counsel, and it has helped enormously. I was receiving a lot of complaints from different faculty members, sometimes gossip, sometimes really legitimate, and I would sit down and talk with him about the issues that were before him and that we were hearing. I finally said, "I think we need some more training, some more support," and that has helped enormously. All that is recorded in his file, so that if something does go wrong later on, we know where we started. But we are feeling very encouraged by it. He's just a young man figuring out how to work in a fully residential school with young women around.

MS. WALLACE: I think that's a wonderful comment. Under Title VII, one of the affirmative defenses is that you have a process in place, and that if you have issues that come up, that you rectify and remedy, so that whoever has been affected is put back in the position they would have been in, but also that you do something as a preventive measure and keep the person on.

And where you have just issues of lapses of judgment without a real egregious situation, I think a wonderful first step is a documented training. And even if there's a denial, it seems a small thing, there's a denial, you can't tell if it's true or not, if a person is in a position where there's a perception, even if it's not true, that there's something inappropriate in the way he or she is acting, then you counsel them about that perception, because in a leadership position, they shouldn't give off any aura that makes anybody uncomfortable, and if the training works and you have got it documented, then I think that's a great first step.

SPEAKER FROM THE FLOOR: I wanted to ask a question from a little bit different angle. In addition to the normal adolescent stresses kids have these days, I think recently there has been increased pressure from what I have heard referred to as helicopter parents that hover --

MS. WALLACE: And create a lot of noise.

SPEAKER FROM THE FLOOR: -- depending on the type of helicopter. Occasionally that stress will come out from a student to a teacher or even more removed, from a parent to a teacher, because we're ruining the kids' lives. And what would be the school's responsibility on behalf of a teacher? We've talked about it in the other direction, but I wonder about the school's responsibility on behalf of a teacher who might be harassed by a student or recently, at my school, a parent actually who's come pretty hard at teachers and administrators about the way their kid had been dealt with.

MS. MacDONALD: Psychological harassment?

SPEAKER FROM THE FLOOR: Verbal, written, e-mail, abusive, "You're horrible to my kid" kind of thing.

MS. WALLACE: I think that the parents in the application process need to know that they need to follow the school's rules, as well, and the school needs to support its teachers. One of my suggestions would be that either your enrollment or application, whichever is the agreement with the parent, have a provision in it that says, "We expect cooperation with the school, and to the extent either a child's behavior or a parent's behavior becomes so disruptive that the relationship can't be resolved with some reasonable effort, we reserve the right to terminate the agreement."

SPEAKER FROM THE FLOOR: We've talked about a case where we'd love to expel the mother and hold onto the kid.

MS. WALLACE: It's really sad. But sometimes holding the mother's feet to the fire with that type of agreement may potentially resolve the problem. It depends on to what extent the mother's problems really expand beyond what you can handle or beyond what you can deal with. But obviously, you want to make sure that the parents feel that they are heard. Again, I think that's the key, is that they feel that you are communicating with them, and that some action is being taken and action is communicated to them. So that's really all you can do.

There are going to be those parents who are going to be so disruptive and so disrespectful of the process -- and you do have an obligation to protect your teachers. There are ways to communicate and ways not to communicate, and you can have rules about not being abusive to teachers.

MR. GALBRAITH: Has anyone done an intermediate step, short of terminating the contract with the student and the parent because of the teacher, to ground the parent? In other words, to say, "You're on probation, and we'd like you to make your comments not to that teacher"?

SPEAKER FROM THE FLOOR: I actually did not reenroll somebody this year, which was very controversial in our small community, but she had a hit list, and when I arrived at the school, it was like, "I got rid of this teacher, I got rid of that teacher," and every antenna went up so we did not reenroll her. We gave them a year off to learn to behave, and so the child went to boarding school. And the child may reapply. We haven't heard a peep out of her, once she got through with her two lawyers who came to school and tried to get the child back in, and all that.

But we actually did not falter on that, because it was terrifying teachers, saying, "I don't want this child in my class, I don't want to put up with this woman," and in the conference finally the father looked over at the mother and said, "This is not about Paige. This is about you."

And that was huge. And so I don't know whether they'll reapply this year or not.

MR. GALBRAITH: Did the boarding school call you?

SPEAKER FROM THE FLOOR: No, the boarding school did not call. No. She's a fine child. The boarding school situation is probably the best.

SPEAKER FROM THE FLOOR: We took actually an intermediary step where we have an agreement in our reenrollment contract that is kind of bland, but it has power. Basically, if you as a parent misbehave, we have a right to disenroll your child. And we have a particular parent. She's like the joke, she's the threat amongst the administration. "If you don't behave, so-and-so is going to come and get you."

But what we have done, she was brought in with her husband because often her misbehavior was not happening in the presence of her husband. So they both came in and there was a conversation about, "You have a choice. There is school choice. You're choosing to send your three children to our school. You have other options. We're more than willing to let you out of your contract, since you feel that we are not a very good school for your family."

And then when they were like, "Oh, no, no," "Well, let's talk about the ways that you will be communicating."

And we talked about the kinds of visits she can and cannot have, we talked about the length of e-mails that she is to send or not send, and we went very specifically and put this all in writing, and made it very clear that "If you continue to have these problems we will have to revisit your children's enrollment in the school."

And it was a very hard line, it was not a pleasant meeting to get ready for, but there have been enough complaints from faculty, and these were very valid complaints. And when you have senior teachers shaking, you know something? This person is being abusive. So there was enough concern, and we were very clear with this parent that "We have a number of faculty members who do not want to teach your child because of you, not because of your child."

And I think by having such a frank conversation with this family, and with the father being there, it really helped to temper. And so far so good. We'll see.

SPEAKER FROM THE FLOOR: I'm reminded of this because of the references to intuition, which I think sits very close to trust. The scariest moments I have had in this realm are when a teacher has been accused and is innocent and I believed the teacher. That is harrowing.

In one case, a teacher was accused by a fourth-grade girl of stroking her too much. He turned out to be innocent and I believed him, but he went on medication and eventually was so unnerved that he left the school.

In another case, I believed the teacher and it was awful to get through. And five years later, the girl wrote him a letter of apology and talked about the stresses in the family that had made her so hateful to the teacher that she decided to get him.

It's easy when you think the teacher is guilty. You just do the right thing. But when you believe him, he'd better be innocent, because the stakes are so high for you, and yet what else do you do at some point except listen to yourself?

MS. WALLACE: I think you're right. There is certainly potential for false accusation. As employees and students and people in general are bombarded with information about lawsuits that they can bring, and recognize that they can use it as leverage or a vendetta, and it's very difficult for the person that's accused.

I'll go back to the training and the perception. I think for your protection as an organization, you still, if there has been an accusation, want to make sure that the person has training, as to what's appropriate, what's not, but also as to how to protect himself in making sure that there's not any perceived opportunity, that everything is on the up and up.

The buddy system. That's protection for the teachers as well as for your students. So it's unfortunate, and I have seen major emotional effects by being falsely accused. But the school, of course, has to look seriously at any accusation.

MR. GALBRAITH: Is the faculty staff handbook contractual?

MS. WALLACE: We tried to make it not contractual. The contract is the contract. Because there are some promises in the handbook from the school, and in South Carolina, particularly, it just opens floodgates of every issue going to the jury based on whether or not that handbook is a contract. So our legislature has given us some ability to help protect the handbook. I like to make sure that the contract says we're going to follow sexual harassment policy, we're going to follow the policy for the school, but the handbook itself --

MR. GALBRAITH: I think it's real important to understand state law in your particular setting. We take national advice sometimes, and it isn't applicable. In Indiana where I was, it was highly to our advantage to separate our endowment from our operations, because the rules for trustees are much more stringent than the rules for directors. So the trustees owned the money and the directors ran the school. And if you sue the school for tripping on our sidewalk, you can't get our money, that kind of thing. It's so complicated. But I don't think that's true in every other state. So it would not be relevant to do that.

MS. WALLACE: You do need a good local lawyer, because there are nuances to it, and law does vary from state to state. You know, there's federal overlay that applies to everyone.

MS. LEE: Any other questions?

MR. ERDNER: I have a quick comment. Student-to-student sexual harassment. I had heard that if there's federal money involved in the school program, such as a national school lunch program, or if you have any federal endowment, that there are different guidelines as to how the school must handle a student-to-student situation, and if it isn't handled correctly, it can go into federal court. Is that true?

MS. WALLACE: Well, our firm represents schools that are independent and have no federal funding. But yes, once you get federal funding, it's a whole different overlay of law.

MR. GALBRAITH: But I would like to say that our advice came that you can't avoid the federal contact. You can't avoid it. Just because you don't participate in the school lunch program, your food is delivered through interstate commerce and so on.

MS. WALLACE: We certainly follow federal law in regard to any type of employment-related issue, Americans with Disabilities Act, Fair Labor Standards Act, all those federal laws.

SPEAKER FROM THE FLOOR: They're not employees. They're students.

MS. WALLACE: But as to your students, if you're totally independent, I still recommend that you follow the processing requirements and federal guidelines that might apply, just because it's defensible. You know, if you're following something that is a law, even if you don't have to follow it, it's defensible.

THE REPORTER: The Archdiocese of Santa Fe requires that any parent who wishes to participate in an activity where there is contact with students must attend a four-hour sexual abuse prevention workshop that is sponsored by the Archdiocese. Without having participated in that workshop, parents are not permitted to go on field trips, transport students in their vehicles, or participate in other activities outside the classroom with students.

MS. LEE: Well, Shawn, thank you so much. Thanks to all of you for staying on. It will give Bruce and me courage for next year's program. Safe journey home. Thank you so much.

MR. GALBRAITH: Thank you, Liza.