This article is written to treat the supervisory Agents’ civil liability in varied types of Sexual Infringement that happen in schools, including sexual harassment, sexual abuse and sexual assault. Especially, the interpretation trend of U.S. case law that apply U.S. Civil Rights Act and administration guidelines based on the law to real case is revealing.
Sexual violence cases of minority occurred in elementary, middle and high schools are classified to ① student sexual infringement committed by students, teacher sexual infringement committed by students, sexual infringement committed by the third party excluding school members, ② sexual infringement inside the schools and outside of the schools by the relation between the party concerned and locations. The Supervisory Agent’s(including School district), civil liability and its range are the followings in the party’s point of view.
First, in case of sexual infringement committed by school employees like teachers, they try to relax the Supervisory Agents’ civil liability and expand the range of its liability by applying Restatement second of the “Pure Agency” standard, or adopting theory of strict liability around some states. Even the incident arisen outside of the teacher’s business domain, respondent superior is admitted if the employer has cognitive negligence, or the existence of the user’s authority or deputy relation promotes those illegal acts. That shows the range of liability is more expanded than the liability of Korean Civil Code Article 756 or the State Tort Liability Act Article 2 Section 1.
Second, in terms of sexual infringement cases between students, the school authority has its liability as a supervisor only when the victim student is in hostile educational environment since the school intentionally disregarded the series of sexual infringement even though they had recognized it. Then, so-called deliberate indifference standard is adopted and inference application of Agency principles is excluded.
Third, the stance of precedent that repudiated the school liability of teacher sexual infringement committed by students is altered. That is to say, in case of the reward type of sexual infringement, there is no room to affirm the school’s liability since students do not have any rights and capability to impact financially on teachers. However, in case of hostile environment type of sexual infringement, the school’s user liability is confirmed when the school did not notify the case or the teacher proved that the school intentionally disregarded according to the legal principle of negligence standard. The legal principle can be evaluated as a driving engine to protect teachers’ authority and improve educational environment. In spite of distinction of the educational superintendence and financial aid system, it would be a weighty lead for Korean legislation policy or the interpretation of legal principles.