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Published in Print: December 16, 1998, as 'Zero Tolerance' of Sex Abuse Proves Elusive

'Zero Tolerance' of Sex Abuse Proves Elusive

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Last of three parts

It's all but impossible to find an educator, politician, or parent who thinks sex between school staff members and students is a good idea. Most consider it an egregious violation of society's trust.

Yet in 20 states, sex between a student and an adult employee is perfectly legal, as long as the young person is at least 16. And if the student is 17, add three more states to the list.

No one argues that criminalizing all staff-student sex would stamp out misconduct in the schools. But the lack of such a blanket ban is one of many ways in which states and districts, however unintentionally, send a message of tolerance that can undermine the faith communities place in their schools.

"I think you can get anybody to say it's inappropriate for a teacher to have sex with a student," said Paul Longo, the recently retired director of the professional-practices division of the California Commission on Teacher Credentialing. "The problem is the system saying it's wrong, and once it says it's wrong, being able to do something about it."

Clearly, no state or district condones staff-student sex, and many have policies and practices designed to do exactly the opposite. But a six-month Education Week examination of schoolhouse sexual misconduct found that many of those efforts are falling short of the mark. As a result, many scholars, legal experts, victims' rights advocates, and educators see a clear need for stronger commitment at the state, local, and national levels.

"On a scale of one to 10, with 10 being maximum appropriate effort nationally," said Edward F. Stancik, the special investigator for the New York City schools, "I would say we're at a two."

Reform Proposals Varied

Education Week's examination suggests that, to move higher on that scale, districts and states should consider preventive measures that would:

  • Explicitly prohibit staff-student sex;
  • Make it harder for employees accused of misconduct to slip away quietly to another job;
  • Increase state and local resources for screening prospective employees; and
  • Improve awareness among educators and students about the dynamics of sexual abuse in schools.

Just as important, schools, districts, and states should consider actions aimed at improving their response to sexual abuse when it happens. That means, among other steps, showing greater sensitivity to student victims and managing the backlash against them by students and staff members.

Also needed, many experts agree, are policies that lay out clear and specific reporting requirements and mandate that districts aggressively investigate suspected wrongdoing.

And to lessen the risk that such incidents will be mishandled, districts should consider training for educators in how to respond when sexual abuse is suspected, disclosed, witnessed, or actually experienced.

While such efforts could go a long way toward minimizing misconduct, it is unlikely that they will be enough, those involved in such cases agree. Change must also encompass the attitudes that shape not only official policies but also the actual responses of those who must deal with specific allegations of sexual abuse in the schools.

"In general, the overwhelming sentiment is, 'We've got to protect the kids,' " said Raymond M. Schlather, a trial lawyer in Ithaca, N.Y., who has represented students in civil lawsuits. "The problem is when you apply that general principle to a particular set of circumstances."

For that reason, experts say tougher laws and regulations are only a start.

"You have to change the hearts and minds of the people," said Douglas F. Bates, the director of school law, legislation, certification, and equity for the Utah Office of Education.

Gray Areas Perceived

While virtually no one approves of staff-student sex, not everyone perceives the issue in black-and-white terms, especially when it comes to consensual sex involving older adolescents.

"The big gray area is if the student showed any interest, or didn't report it, or went along with it," said Charol Shakeshaft, an expert on sexual harassment in schools who teaches at Hofstra University in Hempstead, N.Y. "Then for many people, that is not so terrible or not even anything to bother about. The older the child is, the more likely they are to say that."

As matters stand, 20 states do not make it a crime for teachers, coaches, or other school employees to have sex with students who have passed their 16th birthdays, an Education Week survey found. In another three, it is not a crime if the adolescent is at least 17, and in an additional 25 states, it is legal if the student has turned 18.

Those figures suggest there is no national consensus on whether sex between school employees and older teenagers should be viewed exclusively as an ethical matter or as a criminal one as well. To some analysts, that argues against across-the-board prohibitions.

"The norms for relationships differ depending on where you are in this nation," said Julie Underwood, the general counsel for the National School Boards Association. "Where there are gray areas, I don't think we need to be ripping local control from the community schools."

Like the NSBA, neither the American Federation of Teachers nor the National Education Association has formulated a national policy on whether sex between school employees and students should be unconditionally outlawed.

"We really need to look at what the implications are when you make it illegal, and whether it's something we want to put people on trial for," said John O. Mitchell, the deputy director of the AFT's educational issues department. "It's inappropriate, but that's not to say that it's criminal."

But other educators strongly disagree.

"You need a statute in every state that is very specific stating that there is zero tolerance when a student is in school," said Chester Kent, a former teacher, principal, and superintendent who is now a scholar at the Tri-State Area School Study Council at the University of Pittsburgh in Pennsylvania. "Schools should be a sanctuary where parents know their children will be safe."

Loophole Closed

The trend in recent years has been toward tougher criminal penalties.

Sixteen states make it a crime for people in positions of trust and authority, such as teachers, administrators, or coaches, to engage in sex with students under 18. And at least one state, Ohio, makes it a crime even if the young person is 18 or older.

In several recent cases, the abuse-of-authority laws have been used to prosecute educators who otherwise might have escaped criminal charges.

Among them is a 40-year-old English teacher, school newspaper adviser, and soccer coach who pleaded guilty last month to having sex with a 17-year-old female student in Reno, Nev. And a 28-year-old teacher at a Roman Catholic school in Las Vegas pleaded guilty last month of having sex with two female students.

Both men were prosecuted under a 1997 Nevada law that makes it a felony for a school employee in a position of authority to engage in sex with a student under 18 at the same school.

In Washington state, meanwhile, a 30-year-old teacher was sentenced this past summer to 18 months in prison for abusing a 17-year-old student who was in his history class and who played on the softball team he coached. He was prosecuted under a state law that prohibits adults from engaging in sex with 16- and 17-year-olds who are either under their supervision or could be in the future.

Adoption of such laws often follows high-profile cases that galvanize activists and capture lawmakers' attention. In Nevada, the legislature acted after a male teacher from Pahrump, a small desert community near Las Vegas, avoided prosecution in 1995 because the girl with whom he admitted to having sex was 17 at the time.

Ohio in 1994 made it a felony for school employees in positions of authority to have sexual relations with students regardless of their age. The legislature acted after the Ohio Supreme Court ruled in 1993 that a teacher who was accused of having sex with a 16-year-old female student could not be prosecuted because the girl was above the age of consent.

Sending a Message

Even the strongest laws won't work without support from the various players needed to enforce them--from officials at the local school level to citizens who serve on criminal juries.

Still, advocates of tougher laws say they send a strong message that students are sexually off limits to those entrusted with educating them.

"Even if it's a 17-year-old sexpot who is the object of so many men's fantasies, it doesn't matter," said Mr. Bates of Utah, which passed its abuse-of-authority law in 1992. "You can go to jail for life."

The idea, he said, is to deter the kind of calculated seductions undertaken by educators in cases his office has handled and in others around the country. "We had teachers who were keeping track of birthdays of girls, and they would wait till the age of consent to put the final moves on them," Mr. Bates said. "Before that, they would just groom them."

Terri L. Miller, a mother from Pahrump, Nev., who pushed for that state's abuse-of-authority law, said it was needed in part because of the difficulties facing districts who try to dismiss teachers in the absence of criminal charges.

"Oftentimes, districts don't want to spend the time to go to court on these cases," she said. "The dollar signs start rolling, so they don't really pursue them."

In Ohio, the head of the state's AFT affiliate said the union did not object to that state's law against staff-student sex despite having some reservations about applying it in cases involving students in their late teens.

"Those are the kind of borderline issues that could come up that you could question," said Ronald E. Marec, the president of the Ohio Federation of Teachers. "But in general, parents really want assurance that their children are going to a place where adults act responsibly."

Professional Standards Differ

Many experts caution, however, that it is important for states and districts to avoid relying too heavily on the criminal-justice system.

Simply because an employee's conduct may not have risen to the level of a crime--or because prosecutors are unable to prove in court that it did--does not necessarily mean that he or she has remained within acceptable boundaries.

"Juries may say she was a seductive little thing, or she was leading him on," said Sanna Green, the executive director of Alaska's Professional Teaching Practices Commission. "But to us, the professional is the responsible party."

Because of that difference in perspective, said Robert J. Shoop, a Kansas State University professor and an expert on preventing sexual harassment in schools, "you have to make sure that you don't allow the law to determine what the standards of the profession are."

For districts, that means defining clearly what constitutes unacceptable behavior with students and the procedures for reporting and handling suspected breaches of that code. Armed with such policies, it then falls on superintendents to get the message out.

The goal is to create a climate in which "every employee knows that if you engage in this, it will not be tolerated," said Mr. Kent of the University of Pittsburgh. Principals must then follow through by aggressively investigating and recording incidents of questionable behavior so that any suspicious patterns are documented, he said.

State Uniformity Urged

States can help in that process by providing strong guidance to districts on what their anti-abuse policies should contain. States can also enforce high standards through their systems for revoking professional licenses and resolving disputes over attempts to dismiss tenured employees.

A key to making that happen, many experts say, is to afford state officials the resources and expertise to conduct their own investigations when cases have not been resolved satisfactorily in other venues. That way, students, parents, or others with complaints about sexual misconduct have somewhere to turn if they hit a stone wall at the local level.

The aim is to provide some statewide uniformity in the standards of conduct expected of school employees.

But devoting public money and manpower to policing the education profession can be politically tricky, given the reluctance of many policymakers and educators to project an image of widespread wrongdoing in the schools.

"A state wants to protect its students without suggesting that its students need protection," Mr. Longo observed. "It's important that somebody do it, but it's also important that it be done relatively quietly."

Some states are taking visible steps to improve the protection they provide. In Missouri, for example, the state created a five-person professional-practices unit in July to handle the work formerly assigned to a single lawyer.

Still, marked disparities between states remain, said Gary W. Jones, the director of that new unit in the Missouri education department. "Every state is concerned about this issue," he said. "But how they are going about implementing laws and how they develop units in the education department to deal with the problem is another story."

Conduct Called 'Stupid'

Even with greater attention to the problem at the state level, the outcome of individual cases is often unpredictable.

That was illustrated by case that arose last year in the Lyons Central School District east of Rochester, N.Y. In February 1997, Robert Bloomer, then a 49-year-old high school teacher, was accused by a 16-year-old student of fondling her breasts, thighs, and buttocks while having a "snowball fight" alone with her in his truck, and then trying to cover up what he had done.

The 1,200-student district moved to fire him, and after a series of hearings, an arbitrator found the well-liked teacher guilty as charged. But the arbitrator also concluded that the teacher should not lose his job, and instead fined him $30,000, prohibited him from being alone with female students, and ordered the district to reinstate him.

The arbitrator, who was chosen from a list provided by the New York City-based American Arbitration Association, said the "lesser but severe penalty" would make "clear to him that his activities in this matter were dangerous, unacceptable, unprofessional, and I might add, stupid."

A public outcry ensued, and after initially reinstating Mr. Bloomer, the district reached a deal that allowed him to retire early and surrender his state teaching license last spring. Attempts to reach him were unsuccessful.

Mary Ellen Mangold, the supervisor of the employer-employee relations unit of the New York state education department, called the arbitrator's ruling "an aberration." Typically, she said, educators found to have fondled students do lose their jobs.

The lawyer who represented the district, Wayne A. VanderByl of Williamson, N.Y., said the ruling was far from unique, however. "You would find other cases in which similar offenses as this one would result in reinstatement," he said.

But Mr. VanderByl predicted that may change. While "sexual harassment was swept under the rug in the past," he said, schools and the public are becoming less forgiving. That attitude shift, in turn, may prompt arbitrators confronted with similar situations in the future to respond differently.

"The standards that arbitrators apply will reflect the standards that the employer applies," Mr. VanderByl said.

Importance of Training

One tool for raising those standards--and for fostering a climate of zero tolerance of sexual misconduct by staff members--is through training for educators both before they begin their careers and during their working lives.

Mary Ann Werner, the founder of a national network called Survivors of Educator Sexual Abuse and Misconduct Emerge, or SESAME, believes that training in adolescent development and professional ethics should be required for all school employees.

"Everyone connected with educational endeavors needs to learn the dynamics and damage of child sexual abuse and exploitation," she said. "These topics deserve an entire semester course."

On-the-job training is equally important, many experts and advocates say, not only for educators but also for bus drivers, custodians, and cafeteria workers. Such training should help set the ground rules for appropriate behavior and ensure that employees know what to do if they suspect the rules are being broken.

And schools need not be afraid of stating the seemingly obvious about staff-student sex. "For most of us, it's an assumption that everybody knows it's wrong," said Mr. Shoop, a professor of educational administration at Kansas State who offers in-school training on preventing sexual harassment. "But that's a faulty assumption."

Greater Candor Urged

Students, too, need training on such matters, experts and activists say. Instruction on distinguishing "good touch" from "bad touch" has become a staple in school systems. Yet it is rarer for students to receive specific instruction about sexual harassment or abuse by school employees, including sexual activity to which students consent.

"You need someone to go in and talk about this abuse of power," said Donna Covello, a 39-year-old occupational therapist from Hempstead, N.Y., who is the president of SESAME. "As long as you're not clearly educating the students, the abuses are going to continue under this mask of romanticism."

Ms. Covello, who has widely recounted that she was sexually abused for years in the 1970s by her New York City high school guidance counselor, has unsuccessfully sought clearance from the city school district to discuss her experience in the schools. Both she and Ms. Werner, whose son was allegedly abused in high school by a male teacher in Copake, N.Y., argue that schools should be more open to hearing from victims of sexual misconduct.

"Who better understands the dynamics of the grooming of victims?" asked Ms. Werner, 68. "How better can all school personnel become aware of possible risky behaviors by their colleagues and the environmental laxities that allow for such offenses to occur?"

Not everyone agrees on the best means of drawing attention to such issues, or on the level of detail that is appropriate in training geared to students or staff members. In approaching the issue, Mr. Shoop said, school leaders need to "walk a fine line."

"You have a double-edged sword," he said. "By heightening people's awareness, you can make people believe every teacher is a bad person, and that clearly is wrong. But by pretending it doesn't happen, you create conditions that allow it to keep happening."

Vol. 18, Issue 16, Pages 1,12-15

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