A SAN DIEGO SCHOOL SUES THE FEDS OVER THEIR MOLESTER TEACHER. THEY HAVE NO CHANCE, BUT THE CASE IS CURIOUS.
Summary: John Kinloch, a former Chula Vista teacher, was arrested in December 2012 on allegations of molestation and possession of child pornography. Kinloch had previous involvement in a child pornography distribution ring, but was afforded immunity from the U.S. government. Kinloch’s previous involvement never turned up on Chula Vista’s background check before hiring him in 2000. However, they are not absolved of guilt; they could have done more to protect their children, and that is why they will not win their case against the Department of Justice.
Last September, Chula Vista Elementary School District filed a suit against the United States Department of Justice. Their case is that their former teacher, sexual predator John Kinloch, was known by the government to have previously been involved in a child pornography ring, but that information didn’t turn up when the school conducted a background check on Kinloch prior to hiring him in 2000. Kinloch was arrested in December 2012 on allegations that he molested a former student, and possessed child pornography to lure boys to expose themselves online. There’s a measure of credence to their suit. In 1998, it had been discovered by U.S. authorities that Kinloch had been sharing child pornography over the internet with an English man since 1995. It’s important to note that using the internet for this type of crime was a relatively new crime, and perhaps is why the U.S. government struck a deal with Kinloch: immunity in exchange for his testimony in English court, which he complied with. Chula Vista’s case is predicated on the fact that the government knew about his checkered past before they hired him. Unfortunately for the school district, the case goes completely downhill from here.
It’s fair to state that the internet had hardly reached its full potential when Kinloch was hired by the school district in 2000. However, it’s also fair to state that the ability to conduct basic internet searches. Popular search engines such as Yahoo! and Google, along with the popular AOL search engine were all in existence as early as 1998. Perhaps if the school district had done its own due diligence and conducted a basic search online, they could have turned up this story. Ironically enough, the San Diego Reader published a story titled, “A Unique Warmth for Youngsters” about Kinloch’s role in the case, so there was also information locally available in the newspapers. This information comes in handy when considering that the school district not only didn’t conduct internet searches on potential employees back then, they still don’t today. The point of the matter is that the school district had ample resources to find this information out on their own; oversights like these tend to speak for themselves, and this case is no different.
This continued oversight isn’t limited to just Chula Vista; in fact, a 2009 survey indicated that only 45% of businesses (of all kinds) conducted social media searches on potential clients. The number might be disconcerting at first, but in the context of the study, that number represented a two-fold increase from the previous year, and it’s reasonable to assume that the number today is higher. Furthermore, a separate study indicated that of the businesses that do use search engines, 63% found information that resulted in the candidate being dismissed from the hiring process. This underscores the larger issue; there are many organizations (including schools) that are way behind the power curve.
The success rate of conducting free, online searches is alarming. This is a plus, especially in this case study; it’s possible that Kinloch’s court or arrest records were unavailable because he was never formally charged in San Diego. The rest of the court documentation, including the immunity arrangement and correspondence with both the US and Great Britain during the case, are currently protected by the Freedom of Information Act (FOIA), which is what the school district is challenging in their suit. Hindsight is always 20/20; in this case, it revealed that doing their own research, whether it is on the internet or checking his references on his application, could have turned up this valuable information.
Worse yet for Chula Vista, half-assed background checks are not the only way they can be held liable in this case. We went into their website (www.cvesd.org) to search for their hiring policies, fingerprinting and/or background check policy, employment references, along with staff and faculty development policies. Their Employment References was of no use in this context; it discussed separation from the district…still not sure how that relates to “employment,” but they surely have their reasons. Their staff development plan, looks decent on paper, but lacks enforcement measures on the document. Their competency evaluation discusses certification of teachers, but is very broad in its definition and implementation. Their evaluation and supervision policy simply notes that it will be done in accordance with state regulations. That’s fine, but do teachers know where to find these regulations? It would be much more helpful to state the regulations on their policy, as to provide clearer guidance to the teachers. But what stood out the most to me is that a teacher can work up to ten days without any evidence of submitting fingerprint cards. They will literally allow anyone with a teaching certificate to teach in their schools for up to two weeks without any vetting.
To make an educated assessment of liability in a case like this, reviewing the school district’s policies like we did in the previous paragraph is necessary; this is what the courts would do. It’s nice that they have policies that discuss these key topics, but unfortunately they are far from being directive policies, and do little to actually explain what the school does or should be doing in these areas. Simply, there are too many ways a school district like Chula Vista could be held liable in this case. If they used the lack of government assistance with the background check, the finger gets pointed back at them for not doing enough on their own. If they claim that they have policies to govern against these types of heinous crimes, the finger gets pointed at their lack of authority and clarity in their policies. If they claim that there is no reasonable way to have identified his tendencies, the finger gets pointed back at them that the teacher supervision was inadequate, that the leadership at the highest levels of the school failed the children, and that they’re flatly wrong.
Time will tell whether the Chula Vista Elementary School District will be sued in conjunction with Kinloch’s arraignment, but if they are, they had this one coming to them because of the institutional failure to protect their students from a sexual predator. The government, for all of their problems both domestic and abroad, is legally correct here. This seems to be a case where the letter of the law insufficiently aligns with the “spirit of the law.” If judging the government on the basis of the latter, there is a degree of moral fault. Ultimately with the government though, they have to juggle between many important issues, and sexual abuse is just one of those many things they have to juggle – the school district needed to step up here. Moving forward, one could hope that this case serves as the catalyst to aligning the letter and the spirit of the law into the same piece of legislature.
Estey & Bomberger is fully committed to victims of institutional abuses, especially in cases where an innocent child is involved and the institution misguides your trust by failing to provide a safe environment for your child. We will tirelessly exhaust all available assets and resources to provide the best case possible to hold unsafe institutions accountable.