Since the Mutual Educational and Cultural Exchange Act of 1961, the U.S. Department of State has been active in promoting educational and cultural exchanges, especially at the high school level where some 1,450 program sponsors facilitate the entry of more than 275,000 foreign exchange students each year. The students are secondary level students. Most of the students are 17 or 18 years of age, but some participants are as young as 15 years of age and often are away from home for the first time.
The Department of State has amended 22 C.F.R. § 62.25, effective May 4, 2006, in an attempt to provide greater security for foreign exchange students. For Program Sponsors, their personnel must be “adequately trained and supervised” and that any person who has “direct personal contact with exchange students” must be “vetted through a criminal background check.” Program Sponsors also cannot make student placements “beyond 120 miles of the home of a local organizational representative authorized to act on the sponsor’s behalf in both routine and emergency matters…” An “organizational representative” cannot serve as “both host family and area supervisor for any exchange student participant.” In addition, there must be, at a minimum, monthly schedules of personal contact with the student and the host family. The school must have contact information for the local organizational representative. § 62.25(d).
Prospective foreign exchange students must be secondary students in their home country and not have completed more than eleven (11) years of primary and secondary study (kindergarten excluded), or be at least 15 years of age but not older than 18 years and six months of age as of the program start date. § 66.25(e).
The Sponsor must “secure prior written acceptance for the enrollment of any exchange student participant in a United States public or private secondary school.” § 66.25(f)(1). In addition, the Sponsor “must provide the school with a translated ‘written English language summary’ of the exchange student’s complete academic course work prior to commencement of school, in addition to any additional documents the school may require. Sponsors must inform the prospective host school of any student who has completed secondary school in his/her country.” § 66.25(f)(4). Also, Sponsors “may not facilitate the enrollment of more than five exchange students in one school unless the school itself has requested, in writing, the placement of more than five students.” § 66.25(f)(5).
Sponsors are also required to better prepare exchange students, especially “how to identify and report sexual abuse or exploitation.” The exchange student will also receive a “detailed profile of the host family” as well as a “detailed profile of the school and community” where the student will participate. The exchange student will be issued an identification card, with contact numbers should there be an emergency. § 66.25(g).
Host families must be screened, which must include “an in-person interview with all family members residing in the home.” A host family must have a good reputation and character. This must be supported by at least two (2) personal references “from the school or community attesting to the host family’s good reputation and character.” Each member of the host family who is 18 years of age or older must undergo a criminal background check. Also, “[e]xchange students are not permitted to reside with relatives.” § 66.25(j).
Sponsors must report immediately to the Department of State “any incident or allegation involving the actual or alleged sexual exploitation or abuse of an exchange student participant.” This would be in addition to any State or local reporting requirement. § 66.25(m).
Tragedy In Wisconsin
Although the Department of State did not indicate any precipitating event for the amendment of its regulations to require more direct involvement of Sponsors and the closer scrutiny of host families, the case of Kristin Beul, a 16-year-old German exchange student, and her tragic placement in a dysfunctional Wisconsin family had to be a primary motivation.
In Beul v. ASSE International, Inc., 233 F.3d 441 (7th Cir. 2000), the U.S. 7th Circuit Court of Appeals let stand a jury verdict of $649,000 against a non-profit corporation that operates international student exchange programs. Beul paid ASSE a $2,000 fee in order to secure a year in the United States. She was placed with the Bruce family in Wisconsin. The family consisted of Richard, the father (40 years of age); his wife; and their 13-year-old daughter. The Bruce family was selected by Marianne Breber, ASSE’s Area Representative.
As a Sponsor, ASSE was subject to regulations by the Department of State, U.S. Information Agency, that require Sponsors to train their agents, monitor the progress and welfare of the exchange visit, and require a regular schedule of personal contact with the student and the host family. Violations of these regulations are evidence of negligence as they define the duty of care a Sponsor owes to an exchange student. See 22 C.F.R. §§ 62.10(e)(2); 62.25(d)(1), (4). 233 F.3d at 444-45.
Beul arrived in Wisconsin from Germany in September of 1995. She was met at the airport by the father of the host family, Richard Bruce. Breber did not go to the airport to meet her. In fact, from September to January 21, 1996, Breber met only once with Beul and that was at a shopping mall for a brief orientation. Berber gave Beul her telephone number. Breber did call the host family a few times and spoke once or twice with Beul during these conversation, but Breber made no effort to ensure her conversations with Beul occurred outside the presence of members of the host family. Breber never spoke with Mrs. Bruce, who had concerns her husband “seemed to be developing an inappropriate relationship with Kristin.” Id. at 445-46.
Beul had “led a sheltered life in Germany. She had had no sexual experiences at all and in fact had had only two dates in her lifetime.” Id. at 446. In November of 1995, Bruce entered her bedroom and raped her. This began “a protracted sexual relationship.” In the following months, Bruce would call the high school Beul was supposed to be attending and report her ill. With his wife at work and his daughter at school, Bruce and Beul could continue their sexual relationship. By February of 1996, Bruce had reported Beul as ill 27 times. He showed Beul a gun and told her that should she tell anyone about their relationship, he would kill himself. Id.
In January, Bruce called Breber and told her that his wife “appeared to be jealous of the time” that he spent with Beul. He invited Breber to dinner on January 21, 1996. During this time, Breber did not meet privately with either Beul or Mrs. Bruce, and she did not observe anything out of the ordinary. In February, Mrs. Bruce told Breber that she and her husband were getting divorced, and Breber found another host family for Beul. Beul did not want to leave the Bruce residence. Breber brought a sheriff’s deputy to the Bruce house to remove Beul. During this time, the deputy asked Beul–in front of Bruce–whether any inappropriate sexual activity had occurred. Beul answered “no.” Breber learned that same date of Beul’s many absences from school when Breber called to indicate Beul would be living with a different host family. Id.
Beul lived with Breber for a few days until the new host family situation could be finalized. During the period, Breber never inquired about a possible sexual relationship between Beul and Bruce. Breber advised the host family that Beul was not to contact Bruce for a month, but Breber never informed Bruce he should not contact Beul. They continued to communicate. Beul “decided that she was in love with Bruce and considered herself engaged to him.” Id.
In April, Mrs. Bruce discovered some of Beul’s love letters to Bruce and alerted law enforcement. A deputy interviewed Bruce. Bruce had a previous conviction for having sex with a sixteen-year-old girl. The day after the interview, Bruce killed himself, leaving a suicide note expressing fear of jail. “It is undisputed that the events culminating in Bruce’s suicide inflicted serious psychological harm on Kristin[.]” Id.
The 7th Circuit rejected ASSE’s argument that Beul’s determination to conceal her relationship with Bruce negated any failure of ASSE’s agent–Breber–to maintain closer contact with Beul, the Bruce family, and the high school. There is no causal relation between ASSE’s negligence and Beul’s harm, ASSE argued.
But it is improbable, and the jury was certainly not required to buy the argument. Suppose Breber had inquired from the school how Kristin was doing–a natural question to ask about a foreigner plunged into an American high school. She would have learned of the numerous absences, would (if minimally alert) have inquired about them from Kristin, and would have learned that Kristin had been “ill” and that Richard Bruce had been home and taken care of her. At that point the secret would have started to unravel.
Id. at 447. The 7th Circuit opined that the high school would not be liable for the consequences of Bruce’s sexual activity with Beul, even if the high school should have reported her frequent absences to Breber. The criminal sexual activity and resulting suicide were not foreseeable by the school.
But part of ASSE’s duty and Breber’s function was to protect foreign girls and boys from sexual hanky-panky initiated by members of host families. Especially when a teenage girl is brought to live with strangers in a foreign county, the risk of inappropriate sexual activity is not so slight that the organization charged by the girl’s parents with the safety of their daughter can be excused as a matter of law from making a responsible effort to minimize the risk. [Citations omitted.] Sexual abuse by stepfathers is not uncommon [citation omitted], and the husband in a host family has an analogous relationship to a teenage visitor living with the family.
Id. at 448. The court also found that ASSE was “standing in the shoes of the parents of a young girl living in a stranger’s home far from her homeland and could reasonably be expected to exercise the kind of care that the parents themselves would exercise if they could to protect their 16-year-old daughter from the sexual pitfalls that lie about a girl of that age in those circumstances. ASSE assumed a primary role in the protection of the girl.” Id.
Indiana has a statutory reference to foreign exchange students. It can be found at I.C. § 20-26-11-10(b). The relevant language is reproduced below.
I.C. § 20-26-11-10 Tuition for Children of Certain State Employees and Foreign Exchange Students
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(b) A foreign student visiting in Indiana under any student exchange program approved by the state board is considered a resident student with legal settlement in the school corporation where the foreign exchange student resides. The student may attend a school in the school corporation in which the family with whom the student is living resides. A school corporation that receives a foreign student may not be paid any transfer tuition. The school corporation shall include the foreign student in computations to determine the amount of state aid that it is entitled to receive.
In essence, a foreign exchange student placed with an Indiana host family through an approved student exchange program has “legal settlement” in the public school district where the host family resides and may attend the public school without payment of transfer tuition. The statutory provision does not address a host of other concerns, such as whether a foreign exchange student who completes all graduation requirements (including passing the Graduation Qualifying Examination) can receive a high school diploma (the student can); who determines whether a foreign exchange student has met all State and local graduation requirements (the local public school district does); and who is responsible for providing to the public school district a translation of the student’s transcript from the student secondary school program in the student’s home country (under federal regulations, it is the Sponsor’s responsibility, see supra).
The Indiana Department of Education also maintains information for schools, Sponsors, and students at its web site. See http://www.doe.state.in.us/opd/studentexchange/stu_exch.html. The web site contains a Question-and-Answer document on various issues as well as links to pertinent federal agencies involved or interested in foreign exchange students.
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