Nebraska Bill Seeks to Hold Schools, State Employees Liable for Child Abuse

This article was originally published in Nebraska Examiner.

LINCOLN — Officials in public schools or other Nebraska political subdivisions could be held liable if they fail to protect children in their care through a proposal inching forward in the Legislature.

Legislative Bill 25, introduced by State Sen. Justin Wayne of Omaha, was the subject of multiple days of debate and negotiations that ultimately resulted in a replacement of Hastings State Sen. Steve Halloran’s LB 341 on Tuesday to become Wayne’s LB 25. The changes also leaned closer in some provisions involving legal liability to LB 325 from State Sen. George Dungan of Lincoln.

The amended LB 25 could allow lawsuits — in the case of child abuse or sexual assault of a child — against political subdivisions or their employees who have a duty to protect children against the crimes.

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The harm must be a “proximate result” of the political subdivision’s failure or an employee’s failure to exercise “reasonable care” to care for a child in their care or custody.

“Nothing is going to make these individuals completely whole,” Wayne told the Nebraska Examiner after the votes. “We’re just trying to provide the best remedy we can under the law.”

Wayne offered the amendment, which was adopted 32-15. Lawmakers then voted to advance LB 25 on a 26-14 vote, with eight lawmakers “present, not voting.”

Opening ‘Pandora’s Box’

State Sen. Carolyn Bosn of Lincoln, a former prosecutor, led opposition to the measure, arguing that if school officials have knowledge of wrongdoing and fail to investigate, which is required under “reasonable care,” they can already be held accountable. She ultimately did not vote on LB 25 or any amendments.

Dungan and Wayne, who are also  lawyers, disagreed that the law Bosn pointed to would be adequate.

Bosn said she negotiated on a possible amendment with State Sens. Ben Hansen of Blair and Mike Jacobson of North Platte, possibly to cap recovery damages at $500,000.

Jacobson said those conversations also included whether to limit the scope of the bill to K-12 schools or add options for victims beyond lawsuits. Bosn said she wanted support on the front end and not after a harm has occurred.

LB 25 could favor attorneys representing families or children who have been harmed, Jacobson argued, as lawyers would be looking for “deep pockets.”

“I’m just saying you’re opening up Pandora’s Box when you go this route,” Jacobson said.

Dungan said there may always be “ambulance chasers” seeking money, but he joined Wayne in stating that lawyers have an ethical duty not to file frivolous lawsuits and noted that judges can throw cases out if they determine the actions are frivolous.

Goals of ‘protecting children’

State Sens. Steve Erdman of Bayard and Julie Slama of Dunbar both criticized opponents to Wayne’s bill who have said they want to protect children but voted against Wayne’s bill.

Erdman, who often is closely aligned with Halloran, defended the effort as targeting schools that aren’t doing everything right. If they are, “they have nothing to fear.”

He said he couldn’t understand why LB 25 was controversial and that when he returns to his district in western Nebraska, he can say he did everything to protect Nebraska’s most vulnerable while some of his colleagues thought protecting the state was more important.

“When you vote, you will clarify to the voters, to the public, where you really stand on protecting children,” Erdman said.

Slama pointed to other bills that were debated this session with a stated goal to protect children from certain library books or to define public K-12 bathrooms and sports teams as male or female based on students’ sex at birth. The introducers of those bills, State Sens. Joni Albrecht of Thurston and Kathleen Kauth of Omaha, opposed Wayne’s amendment and voted against advancing LB 25.

Halloran told the Examiner he was happy there would be some parity to hold public schools accountable when similar lawsuits are already allowed against private schools.

Some opponents argued allowing lawsuits against public schools would increase property taxes.

Slama challenged opponents on that point.

“How many child molesters is your school district employing if it’s going to impact your bottom line?” she asked.

Accountability and recovery

State Sen. Christy Armendariz of Omaha said she supports suing any entity if its employees  commit crimes against children but wanted LB 25 to be more refined, such as more closely targeting criminals.

“We have very little, if any, control over policies, hiring, employee practices within a school building,” Armendariz said. “To reach out to the taxpayer to pay the financial penalty would be extremely ineffective at changing the culture we’re trying to change.”

Armendariz told the Examiner that LB 25 is an opportunity to put everyone on notice that harming a child is “absolutely not acceptable,” but she said the bill “completely misses that point.”

She said holding employees financially accountable could change a culture and suggested that lawmakers should allow victims to go after funds the employee may be connected to, such as employee unions or health care and pension plans.

“That’s outside of the box thinking, but maybe those pension funds need to be held accountable to the offenders that they support,” Armendariz said.

Wayne said once a perpetrator is behind bars, there may be no financial recovery left, but he said a bigger issue is whether schools, cities or counties are aware that harm is possible and that if they don’t act, that should come with some liability.

“I’m proud of this Legislature today, and I think we’re passing a bill that can help kids,” Wayne said.

With three days left in the legislative session, LB 25 will need to return for debate sometime Wednesday. If it advances, the final vote will be taken on the last day of the session: April 18.

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