School May Be Liable for Counselor’s Hanky Panky

(CN) - A high school guidance counselor who allegedly collected students' belts as proof of his sexual conquests may have violated the rights of a student even if she was over the age of consent at the time of the alleged contact, a federal judge ruled.

Palmer High School in Massachusetts hired Patrick Van Amburgh as a guidance counselor in 2005.

Shortly after taking on the role of assistant football coach in 2006, a police investigation found that Palmer had sex with a student. Van Amburgh denied the allegation, but admitted that he failed to always maintain properly boundaries with students. One law enforcement official noted that the school officials wanted to "sweep the situation under the rug."

But the allegations resurfaced in 2008 when a 17-year-old who did stats for the football team reported that she had sex with Van Amburgh. In a federal complaint, the student, whose identity is protected, said Van Amburgh never tried to have a more professional relationship with female students.

"Instead, he openly failed to maintain proper boundaries with students, bragged about having sexual relations with female students, and bragged about participating in a 'contest' with another school employee to see who could have sex with the most female students," according to the court's summary of Jane Doe's complaint. "As part of the contest, Van Amburgh and the other employee allegedly collected the belts of the students they had sex with as proof."

Doe says Van Amburgh invited her to his apartment twice in October 2008, and they had sex during her second visit. The two allegedly exchanged 1,300 text messages between Oct. 3 and Oct. 18.

When Doe's mother learned of the relationship, she complained to Palmer Public Schools Superintendent Gerald Fournier, who fired Van Amburgh in November.

Fournier later testified that he had observed Van Amburgh was too "cozy" with female students. "He observed a female student in Van Amburgh's office wearing a short skirt with her feet on Van Amburgh's desk and took action to stop the conduct," according to the court's summary of Fournier's testimony. "Fournier also observed that Van Amburgh kept numerous pictures of female students on his wall and directed him to remove the pictures."

Fournier also claimed that he intended to, but did not, transfer Van Amburgh to the middle school where he would be less likely to act inappropriately with female students.

He is named as a defendant in the amended complaint along with Van Amburgh, principal Bonny Rathbone, the town of Palmer, the Palmer School Committee and six individual committee members.

U.S. District Judge Michael Ponsor dismissed Doe's claims against the individual school employees last week, but upheld several claims against the school committee, the town of Palmer, Fournier in his official capacity, and Van Amburgh.

Ponsor said he was unwilling to find that "consensual sexual relations with a student over the age of consent can never constitute a substantive due process violation."

"The inherent imbalance of power between a guidance counselor in a public school and a student may render opportunistic sexual predation sufficiently shocking, even with a 'consenting' student over sixteen, to form the basis of a substantive due process claim," the 49-page decision states.

"Although the actions defendants took after the mother's complaint may eventually defeat plaintiff's claims, it can be sufficiently inferred from the pleadings that school officials exhibited a 'deliberate indifference' to the rights of their students by their earlier failure to investigate and supervise," Ponsor added.

Palmer and the school may also be responsible for Van Amburgh's alleged misconduct. "Even though Van Amburgh's actions were not authorized - and even prohibited - by the school, a reasonable jury could nevertheless find that he was acting under the color of state law," Ponsor wrote.

"Van Amburgh enjoyed the opportunity to harass Plaintiff and solicit sex from her by virtue of the authority he had as a high school guidance counselor and football coach," he added. "The fact that some of the relations he had with Plaintiff took place after school and not on school property does not change the fact that he was 'clothed with the authority of state law' at the time."

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