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Creating Constructive Change at Christian Schools

By Peter J. Kraybill
Attorney with Gibbel Kraybill & Hess LLP

When a scandal rocks a Christian school, a common instinct is to react with surprise and dismay, and then to dismiss the incident as an outlier. The reality is that many Christian schools face the same threats as other institutions whether Christian or secular, and may face even more threats than a public school or other type of charitable nonprofit organization.

Nurturing institutions such as Christian schools may unintentionally become ideal settings for predators to carry out child abuse, embezzlement, affinity fraud and other malicious acts. The caring constituencies supporting Christian schools should be aware of red flags and seek best practices to overcome typical vulnerabilities and improve the safety and circumstances of a Christian school’s students and served communities.

In Matthew 10:16, Jesus exhorts the disciples to be “as wise as snakes and as innocent as doves”, but similar to the disciples, Christian schools may find they are also “as sheep in the midst of wolves”.

When a predator strikes, there often is a trail of predictable behaviors that, like breadcrumbs, a scrupulous Christian school could have spotted to mitigate or reasonably anticipate harm, but that in the absence of policy controls or measures of accountability, could occur with relative impunity. It is not appropriate for a school to only emphasize forgiveness while lacking reasonable accountability standards, since that combination acts as an invitation to predation.

The trusting environment of a Christian school that lacks rigorous accountability standards is what a predator seeks to exploit. A trusting environment with Christian beliefs held in common across a close-knit group of people with similar culture and lifestyle, makes it possible for someone within the same affinity group to perpetrate affinity fraud or other potentially horrific acts – whether embezzling funds, abusing teachers or students, defrauding donors or organizations, or other harms.

Christian schools may lack many typical and appropriate policies, such as for child safety, avoiding inappropriate touching, non-discrimination, appropriate speech/avoiding hate speech, appropriate conduct to avoid creating a hostile workplace environment, funds flow control, appropriate donor messaging, criteria for gift acceptance, staff and leadership 360 degree employment reviews, outside investigation upon a harmful event, whistleblower, and other policies. Leaders at a Christian school may argue instead that simply following the example of Jesus and having more religious activities should be sufficient. There always is a need for prayer, but best practices for nonprofit schools generally would include implementing at least a minimum of policies including child safety, whistleblower and gift acceptance policies. For Christian schools particularly, where affinity fraud is a heightened risk, it would be appropriate to have a minimum of two persons responsible for receiving gifts, making financial reports, and controlling the flow of significant funds.

Different actors within a Christian school may have the power to derail efforts to enact constructive change toward decreased vulnerability. Most nonprofit institutions including Christian schools have one or more centers of power, whether that is the administrator/principal, board of directors/trustees, donors, teachers, related church or denomination, among others. The relevant centers of power in an organization typically can unilaterally act to quash constructive change, or foster attention and energy toward constructive change. If the relevant power center resists reasonable, constructive change, then intervention directly to the Board or legal action against the School may be necessary to implement essential changes.

The legal governance and ultimate authority of a Christian school typically lies with its Board. The Board is the “brain” of the organization, and when it acts as a body (individual Board members/directors/trustees typically lack authority to act) its actions are the actions of the organization. Board members for a school are often directed by the school’s attorneys and the school administration to only discuss school matters within the Board, and not with outsiders. Many schools require that persons serving on the Board must sign a nondisclosure agreement to keep matters that the school wants to be confidential, kept confidential. If a criminal investigation is underway, the Board will have been advised by the school’s attorneys and law enforcement to not discuss or disclose matters under investigation outside of the Board. However, nothing would prevent concerned individuals from informing Board members individually or collectively about a concern and the specifically desired changes that the Board should implement. In other words, the flow of information may well be a one-way delivery from the concerned individual to the Board member(s), but even that would likely be productive if a Board member is inspired to begin to carry out the relevant suggestion by raising the point at a formal Board meeting. The Board is the key to enact best practices, since the Board has ultimate authority to hire/fire personnel, impose policies, and require accountability from administrators, teachers and students.

Any concerned individuals seeking to inspire change at a Christian school should observe some basic rules to avoid bigger problems. First, to avoid liability for defamation written or spoken, don’t repeat unsubstantiated rumors or state something false and defamatory. Defamation only occurs if the matter is both false and defamatory. It is not defamation to mistakenly assert, for example, when the sun rose in the morning, since even falsely stating “4 am” is not defamatory to anyone. It is defamatory to falsely state that someone has a loathsome condition such as an STD or a diagnosis of pedophilia, if that is not actually true, since such statement would be defamatory for the subject person. The key to avoid defamation liability is to not make any false statements, and if making statements that would be defamatory to someone’s character or reputation, to have confirmed that all of the asserted “facts” are true. Truth is an absolute defense to defamation liability — but it may not be a defense to invading someone’s privacy if the matters are personal.

Second, individuals seeking to inspire change at a Christian school should pursue constructive change that not only benefits the students but also benefits the school. This is not an occasion to address personal pet peeves, resolve personality conflicts between individuals, or simply seek attention. Nor is it an occasion to inspire a mob of angry people to do something violent or unlawful. Constructive change best happens when multiple people acting together seek reasonable change, similar to how placing individual pebbles of constructive criticism can add up to a great weight in a push for change, rather than attempting to lob a boulder to devastating effect. The goals should be positive and beneficial, not bad-tempered and outrageous. Note that substantively and truthfully criticizing the school’s actions or omissions may end up causing considerable harm to the school, if the substantive criticism empowers a potential plaintiff to recover significant dollar damages in a lawsuit against the school. Most well-meaning donors and parents don’t seek to open the school to major liability, but instead want to strengthen the school by fostering accountability. The goals of a victim of harm may substantially diverge from the goals of a school where the harm arose.

Before any criminal charges are filed or any civil lawsuits are filed, a key question is whether the school was put on notice of the risk of harm, which a reasonable person would then have taken steps to avoid. A school can be on notice when a teacher hears a student’s concern, or when an administrator receives an anonymous tip, or when anyone with authority within the school’s organizational hierarchy received knowledge on behalf of the school. The notice can be considered sufficiently given when such allegations are raised that a reasonable person would see cause to report it up the chain of authority within the school, and undertake or invite investigation, and take steps to reduce or avoid further harm.

The desire to “duck and cover” when facing a harmful allegation is strong at a nonprofit or public institution generally, and within the leadership of Christian schools supported by often precarious donor contributions, that desire can be acute. Denial and pushback from the Christian school’s leadership may follow. Angry donors or parents are among the most difficult situations that leaders of Christian schools can face. When a crisis is unfolding, a Christian school will often be advised to inform constituents at least in writing that the school is taking reasonable steps to address the circumstance, that an investigation is underway, and if applicable, that the school is cooperating with police. Then the school administration may offer a public meeting with parents or donors or other constituents to air grievances, but without providing reciprocal substantive details pending the outcome of investigation – to allow time for the dust to settle.

Often a school’s insurer will motivate changes in policy and policy implementation. If a school is sued for a relatively minor liability, the potential for settlement is higher if the insurance deductible is high – since the school would rather pay out an amount up to the deductible, than have the lawsuit’s settlement by insurance counsel result in the need to pay the full deductible. Also, if a school is repeatedly sued or the liabilities of the school are perceived by an insurance underwriter to be considerable, the school may have difficulty obtaining insurance at a reasonable cost. An insurer may require that a school impose certain policies so that predictable liabilities do not arise – such as a sexual harassment policy, a data privacy policy, a child safety policy, a whistleblower policy, and a gift acceptance policy, among other policies. Such policies can substantially reduce the risks of harm or liability to a school, but only if those policies are implemented with accountability. Often school leaders must make an annual statement to the school’s insurer asserting that certain policies exist and are followed. A demanding insurer may independently inspire constructive change for a school as a result.

The measures a good Christian school should take to protect students and create a healthy educational environment require not only strong leadership, but also accountability for the broader school community through reasonable policies administered attentively. By enhancing clarity in its policies for accountability, a Christian school can lessen its risk of allowing predators to bring harm to students, teachers and donors.