United States: Deciding When To Disclose The Names Of Teachers Involved In Educator Sexual Misconduct

Revised January 2018

Within days of each other in August and September 2016, Phillips Academy Andover and St. George's School disclosed the names of past faculty or staff who had engaged in sexual misconduct. Both disclosures were made following independent investigations into past instances of sexual misconduct. In the case of St. George's, the disclosure was part of a lengthy and publicly issued report by an investigating firm. The Phillips Academy disclosure was part of a letter to the community. Both the SGS report and the Phillips Academy letter provided details on the criteria used to decide whether to make the disclosures. In the case of SGS, the investigator made the decision, whereas the School made the decision at Phillips Academy.

Since then, a number of schools have made similar disclosures, while others have chosen not to do so. At least nine schools[1] have described to their communities how they decided whether to disclose names of faculty or staff who engaged in sexual misconduct with students. Right now, other schools are conducting investigations and trying to decide how to make this significant decision.

Schools have struggled with this issue in part because of the way independent investigations are conducted. The job of the investigator is to make findings of fact. Until recently, virtually all investigators examining historical sexual misconduct claims have used what is known as the "preponderance of evidence" standard, as it was required by the federal government in Title IX investigation. As schools sought consistency for all types of investigations into sexual misconduct, the preponderance standard became the de facto standard , regardless of whether a school is covered by Title IX. Under the preponderance standard, the investigator determines whether it is more likely than not that the claims made are true. It is the lowest standard of proof at law.

There are other standards of proof at law. The highest is beyond a reasonable doubt, which applies in criminal cases. In between the preponderance standard and the criminal standard is the "clear and convincing evidence" standard. According to the federal Model Jury Instructions, this standard means that the "evidence leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. This is a higher standard of proof than proof by a preponderance of the evidence, but it does not require proof beyond a reasonable doubt." On September 22, 2017, the United States Department of Education rescinded the 2011 guidance that mandated the use of the preponderance standard in Title IX proceedings and investigations, effectively leaving the decision to schools whether to use the preponderance standard or the higher clear and convincing standard.

Another important factor that complicates decisions about disclosing names is the practice of permitting alumni who have been sexually abused to keep their identities confidential if they wish. This option encourages survivors to come forward so that investigators and schools can learn as much as possible about past misconduct. However, it also creates an inherent tension relating to disclosure of names. Martin Murphy addressed this issue directly in his September 2016 "Report of Investigation on Sexual Assault At St. George's School". His analysis on this important issue is worth reviewing:

"But our agreement to keep the identities of former students confidential comes with a price—the prospect that unreliable allegations could become part of a public report. "Naming Names" can lead to drastic consequences for a teacher or former student who may be wrongly accused. This issue is not new. The Right to Confrontation adopted as part of the Constitution's Sixth Amendment was designed to protect citizens against "flagrant abuses, trials by anonymous accusers, and absentee witnesses," Cal. v. Green, 399 U.S. 149, 179 (1970) (Harlan, J., concurring). To be sure, our investigation is not a trial, but the principles that animated the adoption of the Sixth Amendment are deeply engrained in our country's basic sense of fairness. This issue stands in even sharper relief here. In some instances, 45 years have passed since the events at issue; the passage of time, and the problem of faded memories and deceased witnesses, can confound even the most diligent fact finders. No credible investigation would merely recite, without independent assessment and evaluation, allegations made by witnesses who have been promised confidentiality.

To strike the appropriate balance between identifying perpetrators, protecting the identity of alumni who wish to keep their identities confidential, and taking every reasonable step to avoid the possibility of making unfair public accusations against faculty and staff, we have adopted the following practice:

[W]e have identified by name the faculty and staff members who engaged in, or allegedly engaged in, sexual or personal misconduct when allegations against them are supported by multiple credible accounts or independently corroborated evidence..."

The Murphy Report may have been the first to address the tension between the desire for transparency and the effort to maintain fairness, but it was far from the last. It is clear from a review of the criteria published in recent disclosures from multiple schools that while the criteria for disclosure of names differ in their description, they share common attributes. [See the Appendix below for the actual criteria used by the various schools.] First, and perhaps most important, the investigator or school must have made a decision that the report of abuse or misconduct is credible. In other words, the investigator has concluded that the abuse or misconduct occurred based, at a minimum, on the legal standard of a preponderance of the evidence. Quite simply, consideration for disclosing a name should only occur if it is more likely than not that the abuse occurred.

Yet even when this initial threshold is met, nearly all schools have required something more before disclosing names. The "something more" is usually corroborating evidence, such as "multiple credible accounts," or "repeated instances" with more than one student. Nearly every letter or report that we have reviewed included among the criteria for disclosure of names the existence of multiple reports (presumed to be credible), an admission from the perpetrator, documentary evidence such as letters (which may amount to an admission) or judicial findings. In short, for most schools, a determination that abuse occurred by a preponderance finding is a necessary prerequisite to disclosure, but is not a sufficient basis for that disclosure.

Until recently, none of the schools had specifically referenced the criteria for disclosure by citing the higher legal standard, but each of them had articulated evidence greater than a mere preponderance to meet the threshold of disclosure. On January 5, 2018, the Nichols School released a report of investigation which states in a footnote in reference to the criteria used to determine whether to disclose the names of faculty and administrators: "In short, we have adopted a standard analogous to 'clear and convincing' evidence for identifying teachers by name, and a standard similar to the lesser "preponderance of the evidence" to report misconduct without attribution to an identified teacher." In light of the recent guidance from the United States Department of Education giving schools the option to use the higher standard of proof in sexual misconduct investigations and proceedings, it is likely that in the future more schools, including non-Title IX schools, will reference the higher standard as the threshold for disclosing names of educators believed to have engaged in sexual misconduct with students.

1 St. George's School, Phillips Academy, Milton Academy, Phillips Exeter Academy, Pingry School, Choate Rosemary Hall, Emma Willard School and St. Paul's School.

Appendix: School Criteria for Disclosure of Names in Cases of Historical Educator Abuse

By: David Wolowitz, J.D. (Revised January 2018)

PHILLIPS ACADEMY

Published August 30, 2016

"Our threshold for public disclosure of past sexual misconduct is established by considering a series of factors:

  1. The severity of the misconduct, its effect on the former student(s), and/or whether the school was made aware of multiple concerns of misconduct;
  2. Whether there exists an ongoing current risk to students at Andover or elsewhere;
  3. Whether the behavior of the faculty member violated Andover's expectations; and
  4. Whether the allegations could be corroborated."

ST. GEORGE'S SCHOOL

Published September 1, 2016

"To strike the appropriate balance between identifying perpetrators, protecting the identity of alumni who wish to keep their identities confidential, and taking every reasonable step to avoid the possibility of making unfair public accusations against faculty and staff, we have adopted the following practice:"

Editor's Note: Criteria are shortened to exclude extraneous information.

  1. We have identified by name the faculty and staff members who engaged in, or allegedly engaged in, sexual or personal misconduct when allegations against them are supported by multiple credible accounts or independently corroborated evidence.
  2. We have chosen not to identify students who sexually assaulted other students by name.
  3. We have not reported allegations when, in our judgment, a witness's account was not credible.
  4. In a small number of instances, we find the evidence equal in weight on each side of an allegation, and we have therefore been unable to reach a clear credibility assessment. In the small number of instances that fall in that category, we decided not to include allegations we heard.

MILTON ACADEMY

Published February 21, 2017

"In determining our threshold for naming publicly these former employees, we carefully considered several factors including:

  1. The severity of the offense;
  2. Whether the individual engaged in sexual misconduct with students in repeated incidents;
  3. Whether there exists a potential risk to public safety today; and
  4. Maintaining a victim's request for privacy, where disclosure would compromise that privacy."

PHILLIPS EXETER ACADEMY

Published March 2, 2017

"Below are the principles of disclosure adopted by the Trustees of Phillips Exeter Academy. In defining these principles, the Trustees reviewed current best practices as well as the perspectives from sexual assault survivors, professionals in the sexual assault field, and legal counsel. The principles are meant to serve as a guide to the Academy in making decisions regarding the possible public disclosure of allegations of misconduct against former faculty and/or staff of the Academy."

Editor's Note: Absent minor formatting changes, the following text is taken directly from the report.

  1. After a careful review of the available evidence, does the Academy have a good faith belief that an allegation of misconduct against a faculty or staff member is well-founded? If the answer is yes continue with the analysis.

    1. Is there an admission to the truth of the allegation by the alleged perpetrator of misconduct? If the answer is yes, the Academy should consider making a public disclosure using factors one through seven, infra.
    2. If there is no admission to the truth of the allegation, has the alleged perpetrator been investigated and found guilty by a competent authority (for example, by court of law and/or state agency, employing the appropriate due process standards)? If the answer is yes, the Academy should consider making a public disclosure using factors one through seven, infra.
    3. If there is no admission and no due process finding, the Academy may still consider making a disclosure. The most significant factor must be the reasonableness of the Academy's good-faith belief that an allegation is well-founded, as well as the harm sought to be alleviated. Additionally, the factors below must be considered and weighed in making a decision.
    4. Affirmative answers to the questions listed below weight in favor of making a public disclosure, though an affirmative answer to any one question standing alone may not merit a public disclosure. Instead, the totality of all the factors listed below should inform the decision about disclosure.
  2. Is the alleged perpetrator a current or ongoing risk to members of our community or the public?
  3. Is there the potential for other unidentified victims of the alleged perpetrator?
  4. Would the alleged misconduct, if committed today, violate the Academy's Faculty Handbook, Staff Handbook, or E Book?
  5. Has the Academy commissioned a full and fair investigation of the alleged misconduct, the result of which was a finding that the alleged misconduct in fact occurred?
  6. Has the Academy received multiple allegations of misconduct against the same perpetrator?
  7. What effect will disclosure have on the Academy's former students?
  8. Are the allegations raised against the perpetrator already in the public domain?

PINGRY SCHOOL

Published March 27, 2017

Pingry's investigators used a "preponderance of the evidence standard."

Editor's Note: The following factors are not listed as naming criteria, but represent the only mentioned guidance used in the naming calculus.

  1. Individuals were not named where "a lack of information from witnesses with firsthand knowledge about the others, as well as a paucity of corroborating evidence."

CHOATE ROSEMARY HALL

Published April, 2017

"One issue we confronted when preparing this report was whether to name adults accused of sexual misconduct. We carefully considered this question for each individual we investigated and reached different decisions based on the scope of our mandate and the information we learned. When making these decisions, we weighed a number of factors. We made a holistic assessment regarding each individual's conduct, rather than trying to follow a strict formula."

"The factors we weighed when deciding whether an adult accused of sexual misconduct should be named in Section IV are as follows:

  1. The severity of the individual's conduct, and whether it involved sexual intercourse or sexual assault, as those terms are defined under Connecticut law.
  2. Whether the individual's conduct involved either physical or emotional coercion.
  3. Whether we received credible reports of the individual having engaged in incidents of sexual misconduct with multiple students.
  4. Whether the individual was the subject of one or more direct reports in our investigation or if our information about the individual came from other sources.
  5. Whether we were able to corroborate the incident(s) we are describing and the amount and quality of this corroborating evidence.
  6. Whether Choate received an earlier report of potential sexual misconduct by the individual, either at the time of the incident or at a later point, and whether we believe that the school's handling of that earlier report is particularly relevant.
  7. Whether the individual taught at other secondary schools or other educational institutions after leaving Choate and whether Choate assisted the individual in finding other employment and/or the individual currently works in education."

THE EMMA WILLARD SCHOOL

Published April, 2017

"Key factors in the determination to include respondent names included those matters where the"

Editor's Note: Criteria were originally found in paragraph form.

  1. Matters where the information arose through a first person account;
  2. There was contemporaneous corroborative information (including in some instances, an admission);
  3. The conduct was already of public record; and/or
  4. The conduct was criminal in nature.

ST. PAUL'S SCHOOL

Published May 20, 2017

Editor's Note: The following criteria are not explicitly described as criteria used to determine whether a name would be made publicly available, but rather criteria used to place alleged perpetrators of sexual misconduct into three separate groups based on the evidence and seriousness of the allegations against them. Names would then be made public based on the level of substantiation of the sexual misconduct. The report did not name faculty members where allegations were not well-substantiated.

  1. The nature and severity of the sexual misconduct involved, including whether the faculty member or staff engaged in activities such as rape, sexual intercourse or sexual assault.
  2. The degree of harm and lasting impact to the victim(s) resulting from the sexual misconduct.
  3. Whether the faculty member engaged in repeated sexual misconduct with one student or a pattern of misconduct with multiple students.
  4. Whether the alleged misconduct, if committed today, would violate SPS' written policies concerning faculty conduct and expectations.
  5. The availability and reliability of oral or written victim accounts, corroborating witness accounts, admissions by faculty or students, or other documentary evidence to substantiate sexual misconduct.

NICHOLS SCHOOL

Published January 5, 2018

"We have not identified in this Report any former students – whether reporters or victims – by name or class year, in order to protect their privacy... Likewise, we have not referred to faculty and administrators by name, except where we have credible evidence that: 1) they engaged in inappropriate conduct with a student or students; or 2) they were aware – or reasonably should have been aware – of such misconduct and failed to take appropriate action to address it...

The decision to identify by name a teacher whom we believe engaged in inappropriate conduct with a student was not taken lightly – either with respect to those we name in Section II.A., or those whose conduct we describe in Section II.B., but do not name. We believe that the reports in both Sections are credible, that the teachers described in both Sections violated Nichols' and their students' trust in them, and that students were harmed as a result. But we also are aware of the need to balance the benefits to the victims and to the School community of holding wrongdoers publicly accountable, against the interests of individuals in not being publicly identified as a wrongdoer where we have less supporting evidence, or the conduct is less severe, than that attributed to the teachers whom we do name.

Thus we have identified teachers, and have attributed conduct to them by name, where we have a credible first-hand account of misconduct, supported by other extrinsic evidence, or a credible second-hand account supported by other factors, such as a first-hand report of similar behavior (i.e., "pattern evidence"), combined with some other compelling factor, such as severity or harm caused. See II.A., below. In Section II.B., below, we report credible accounts of misconduct attributed to faculty members whom we do not name, because, while we believe the reports are credible, they are almost all second-hand accounts, and lack the compelling support of those in Section II.A..."

Footnotes

1. "In short, we have adopted a standard analogous to "clear and convincing" evidence for identifying teachers by name, and a standard similar to the lesser "preponderance of the evidence" to report misconduct without attribution to an identified teacher."]

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