Judge Rules Records Public In Certification Revocation
In a case that has pitted Washington State's chief school officer against one of its largest newspapers, a Spokane judge has ruled that the public has a right to view school records when a teacher's certification is revoked.
Thurston County Superior Court Judge Paula Casey handed down the decision in a lawsuit over the right of a newspaper to information on alleged child molesters in the state's public schools. The ruling would allow the Cowles Publishing Company, publisher of The Spokesman-Review and Spokane Chronicle newspapers, access to school files on 89 cases in the past 10 years in which teachers have either voluntarily surrendered their certificates, or had them revoked by the state office of public instruction.
Newspaper officials requested the access under Washington's open public records act in order to obtain information about teachers accused of sexual misconduct. The public, they argued, has a right to know how the state has handled such cases.
"Over the past few years, we've consistently picked up reports that there are problems in some schools of teachers taking advantage of students,'' said Chris Peck, managing editor of the two papers.
He also charged that Washington is far behind most states in its investigation of teacher misconduct.
But State Superintendent of Public Instruction Frank B. Brouillet argued that the closed cases should be exempt from open-records laws because much of the information included in the files was considered confidential, such as student records, psychological profiles, and interoffice communications.
Mr. Brouillet, who is currently considering an appeal of the recent ruling, filed suit to block the newspapers' request.
Making such information public could hinder official investigations of misconduct charges, he says.
He also insists that release of some information in school files would violate the teachers' right to privacy.
"The question isn't whether the public should have the information, but how much information should be given out,'' Mr. Brouillet said. "We don't think the newspapers need the gory details.''
Making such information public, Mr. Brouillet added, "could really have a chilling effect on our ability to police our own ranks.''
'A Fine Line'
The lawsuit highlights key questions in an unsettled area of education policy that has gained new importance for school officials responding to allegations of misconduct, particularly in the socially sensitive area of child sexual abuse.
Experts said last week that only a few states--Florida and California among them--have developed clear rules and procedures to answer such questions as: What is the role of school officials in protecting children against abuse? How much does the public have a right to know? And what are the rights of an accused employee?
"It's a fine line between an individual's right to privacy and the public's right to know,'' said Gary D. Marx, associate executive director of the American Association of School Administrators.
But Duane M. Swinton, a lawyer representing Cowles Publishing, said the issue is strictly a matter of determining what is public record.
"We feel that if inappropriate contact between a student and a teacher is cause for the loss of certification, and if the agency makes that determination, then it's a public matter,'' he said.
Dealing With Accusations
In most states, Freedom of Information statutes permit public access to records of public employees. But state policies vary widely regarding whether or not school employees fall under those open-records laws, especially when the issue is the sexual abuse of children.
Washington, like many states, allows teachers accused of child molestation to surrender their certification voluntarily and thus avoid a public revocation hearing.
In those instances, records on whether the charges are determined to be true or false remain closed to the public, and school findings are turned over to the police, according to Ralph E. Julnes, Mr. Brouillet's legal counsel.
Teachers accused of molestation who voluntarily surrender their certification may never teach in the state again, but could apply for certification in another state. And if references were not carefully checked, they could teach again.
In many cases, Mr. Peck noted, schools do not investigate charges of sexual abuse, and allow the alleged offender to slip away quietly.
"We're not trying to point the finger at any one person,'' he said. "But there's a whole level of accountability necessary here.''
And even if schools wanted to investigate such charges, he added, many are deterred by such "roadblocks'' as the cost of an investigation, a lack of trained investigators, and union contracts protecting teacher privacy rights.
The Right To Know
The legal dispute in Washington began in January when the newspapers, as part of a story on teacher-student misconduct, requested state records on all cases involving sexual misconduct within the past 10 years. That request was later limited to the 89 cases involving loss of certification for any reason.
Saying that the laws were not clear regarding whether school records fall under open-records laws, Mr. Brouillet filed suit on April 29 to block release of the records. Two weeks later, the Washington Education Association, citing teachers' privacy rights, joined the suit. The union also sued 10 school districts to prevent them from releasing their records.
Most of the 89 teachers who lost their certificates gave them up willingly. Only three had their certificates revoked in public hearings, according to Mr. Julnes.
"Releasing some of this information could destroy someone's reputation within the community,'' Mr. Julnes said, noting that the records in question hold more than certification information. They include, he said, the teachers' entire employment history: previous arrest records, psychological profiles, transcripts, telephone messages, and confidential interoffice communications
"The newspapers take the attitude: 'Give us the information and we'll be discreet','' Mr. Brouillet said. "That may be true in most cases, but some will not be so responsible.''
But Mr. Swinton countered that "the issue is whether this is public record, not what the party will do with the information.''
Right Said Not Protected
In her ruling, Judge Casey noted that the privacy right of students is protected by the federal Family Educational Rights and Privacy Act--known as the Buckley Amendment--passed by the Congress in 1974. That law prohibits the release of student records to a third party without consent of the students or their parents.
Records on a teacher's loss of certification, however, are not protected and should be a matter of public information, the judge said in an oral ruling.
She rejected Mr. Brouillet's contention that public access to the information would impede any investigation into the matter. He had argued that many students involved in sensitive investigations would not testify in the future if they knew their words would be made public.
Judge Casey also rejected Mr. Brouillet's argument that the information should be protected by the same privacy laws that protect police officials when they investigate a crime. She said such laws would not apply because schools are not law-enforcement agencies.
The judge's written order on the case was not expected to be released until late last week. She agreed to delay release of the teachers' records for another week while lawyers for the school system seek a stay from the state court of appeals.
The case is expected to be decided by the state supreme court.
'Shocking' Articles Planned
With or without the records, the Spokane newspapers are planning to run a "troubling and shocking'' series of articles in late September, Mr. Peck said.
Mr. Brouillet, meanwhile, said he was continuing a year-long effort to "tighten up'' his policies regarding professional conduct and certification revocation.
Last month, the superintendent proposed the development of a new code of professional conduct, which would deal specifically with sexual misconduct and abuse. The state board of education is scheduled to hold public hearings on the new policy in September.
"We're trying to clean up our own act,'' Mr. Brouillet said. Though he denied that his office knowingly allowed accused sexual offenders to slip through the cracks, he agreed that Washington needs to clarify its policy on the issue.
"It's laudable that Dr. Brouillet has begun work on a code of ethics,'' Mr. Peck said. "But where was it all the years he's been in office, and where will it be when he leaves?''