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72 Lab. L.J. 229 (2021)
Placing Students in Harm's Way? Exercising Due Diligence: Negligent Hiring and School District Liability

handle is hein.journals/labljo72 and id is 236 raw text is: Placing Students in Harm's Way? Exercising Due Diligence: Negligent Hiring and School District Liability By Todd A. DeMitchell V p 4 TODD A. DEMITCHELL (B.A., M.A.T. University of La Verne; M.A. University of California, Davis; Ed.D. University of Southern California; Post-Doctorate, Harvard Graduate School of Educa- tion) is Professor Emeritus of Education Law & Labor at the University of New Hampshire (Formerly John & H. Irene Peters Professor of Education, Lamberton Professor of Justice Studies, & University Distinguished Professor). He is a former teacher, principal, director of personnel & labor relations, and superintendent. I. WHOM WE HIRE MATTERS Parents generally do not have the power to hire and fire the specific employ- ee who cares for their child and, therefore, rely heavily on the institution to hire appropriate personnel. This reliance permits a cause of action in negli- gent hiring when the institution fails to exercise the requisite care in select- ing and hiring employees and in determining the employee's competency. Liability for negligent hiring arises only when a particular unfitness of an applicant creates a danger of harm to a third person which the employer knew, or should have known, when he hired and placed this applicant in employment where he could injure others.2 C.A. was around 14 to 15 years old when the harassment and abuse by his school counselor, Roselyn Hubbell, the head counselor of Golden Valley High School, started. The abuse allegedly began in January of 2007 and ended in September of 2007. The counselor began spending many hours with C.A. both on campus and off campus driving him from school. Exploiting her position of authority and trust, Hubbell engaged in sexual activities, including sensual embraces and massages, masturbation, oral sex, and intercourse.3 The adolescent plaintiff suf- fered emotional distress, anxiety and nervousness and fear.4 The student sued for damages arising out of the sexual harassment and abuse. The trial court sustained the school district's demurrer, which was affirmed in a split decision by the Court of Appeal holding that the misconduct of the guidance counselor cannot be considered within the scope of employment, thus vicarious liability was rejected.' On appeal the question before the California Supreme Court was whether the district may be found vicariously liable for the acts of its employees - not the acts of the counselor, which were outside of the scope of her employment, but for the negligence of supervisory or administra- tive personnel who allegedly knew or should have known, of the counselor's propensities and nevertheless hired, retained and inadequately supervised her.6 The California Supreme Court answered yes; vicariously liability for negligent ©2021 BY TODD A. DEMITCHELL 229 WINTER 2021

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