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In a unanimous decision Thursday, the California Supreme Court ruled that the William S. Hart Union High School District bears a measure of responsibility for alleged sexual molestation incidents involving a female guidance counselor and a male student at Golden Valley High School five years ago.

The case pertains to Roselyn Hubbell, a school counselor who was arrested in June 2008 in connection with the ongoing molestation of a 15-year-old boy from January to September 2007.

According to court papers filed by attorneys for the boy, Hubbell drove the victim home from school “and spent long hours with (him) on and off the high school premises. The guidance counselor performed a variety of sexual acts on (the victim) and required him to perform a number of sexual acts on her.”

Hubbell’s charges were ultimately reduced to one misdemeanor count of annoying or molesting a minor. In April 2009 she pleaded no contest to that charge and was placed on three year’s probation. A “no contest” plea cannot be used as an admission of guilt in a civil court.

Attorneys for the victim’s family filed a civil lawsuit against the school district, alleging the district knew Hubbell had a history of child molestation before it hired her and did nothing to warn people about it or prevent it from happening in the future.

The Hart District won at the trial court level and the Appeals Court upheld the decision. According to court documents, the appellate court ruled that even if the district knew about Hubbell’s history before it hired her, the district can’t be held laible if she did it again.

The question for the California Supreme Court was whether the appellate court decision was correct. It said no.

The specific issue for the high court was this:

“When a school district’s employees hire, retain or supervise a school guidance counselor they know or have reason to know has a history of child molestation, can the school district be vicariously liable for that negligent hiring, retention or supervision under Government Code section 820 if that counselor molests a student entrusted to her – or is the molested student unable to sue the school district because there is no separate statute imposing direct liability on the district for that conduct, as the Court of Appeal majority held in its published opinion in this case?”

Writing for the Supreme Court, Justice Kathryn Mickle Werdegar said, “We conclude plaintiff’s theory of vicarious liability for negligent hiring, retention and supervision is a legally viable one. Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable.”

In other words, yes, a school district can be sued for damages if it knew or should have known about an employee’s history of child molestation.

Which is well and good from a theoretical standpoint.

But the underlying question remains:

Before she was hired into the William S. Hart Union High School District, did Roselyn Hubbell have a history of child molestation that the district knew or should have known about?

The Supreme Court assumed she did.

But that “fact” has never been proved in a court of law.

When the plaintiffs initially sued the Hart District, the school district filed a demurrer, alleging the court lacked statutory authority to hear the case because the Hart District (thought it) couldn’t be held liable. The trial court agreed, and the facts of the case – Did Hubbell have a history or not? – were not argued.

Plaintiffs appealed the trial court’s decision to uphold the demurrer, meaning the appellate court only ruled on whether the Hart District could be sued. It didn’t delve into Hubbell’s history.

At the Supreme Court level, Hubbell’s history was not open to debate. The only question was whether a school district could be held liable IF it knew an employee had a history.

In a statement Thursday from the law firm handling the matter for the Hart District – whose costs were covered under the school district’s insurance policy – attorney Steve Harber of McCune & Harber said the case is in the “allegations stage. It is one thing to make allegations; it is another to establish facts.”

At this point, the idea that Hubbell had a history of child molestation is merely an allegation – as is the idea that she molested the boy at Golden Valley, from the court’s standpoint. Because Hubbell’s “no contest” plea in the criminal court can’t be used as an admission of guilt in a civil court, the “fact” that she molested the boy at Golden Valley hasn’t been established in the civil case against the Hart District.

Hubbell was a Hart District employee from August 2002 to June 2008. When she was hired, state law required school district employees to be fingerprinted for background checks. Hart District administrators were not immediately able to give details about Hubbell’s background check Thursday – and aren’t likely to do so because it’s a matter of pending litigation – but if she was cleared in the background check, she might not have had a criminal history.

“When the true facts come out, they will show that the (school) district appropriately screens its teachers and counselors,” Harber’s statement said. “The alleged perpetrator here was found out, arrested and prosecuted because of the district’s vigilance.”

The public is likely to find out whether Hubbell had a prior history of child molestation – and whether the Hart District knew or should have known about it. That’s because Thursday’s Supreme Court decision opens the door for the victim’s attorneys to bring the case back to the trial court and argue the facts for the first time.

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