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Published in Print: May 7, 2003, as No Easy Answers for Schools In Misconduct Inquiries

No Easy Answers for Schools In Misconduct Inquiries

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Four educators from the same high school outside Cincinnati have pleaded guilty since December to having sex with their students. As harrowing as those cases have been for school district leaders, the prosecutor in the case has nothing but praise for the officials' cooperation.

It's a very different story in the greater-Phoenix area, where school administrators involved in three highly publicized cases of alleged sexual abuse by teachers are being investigated by Arizona education officials for possible mishandling of the incidents. To prevent such problems in the future, the state issued a new handbook late last month spelling out Arizona educators' obligations to report suspected misconduct and warning them of the consequences if they don't.

"Protecting the health and welfare of students is the most important and fundamental responsibility of every professional educator," says the Arizona Department of Education guidebook. "Failure to comply with these laws can, above all, result in the needless victimization of children, and may also lead to criminal and administrative proceedings against those who fail to make the required reports."

Following the Rules

The Arizona Department of Education recently published guidelines to help educators in the state comply with statutes that require them to report alleged or suspected cases of sexual misconduct by educators against minors. Here is a summary of several sections from the guidelines:

  • A report must be made in writing or by e-mail to the state education department's investigative unit as soon as is reasonably practicable, but no later than three business days after the person first suspects or receives an allegation of misconduct.
  • All school district superintendents and chief administrators of charter schools are required to make such reports.
  • The standard for making a report is a reasonable suspicion or receipt of a reasonable allegation.
  • School personnel are not required to investigate allegations of misconduct prior to making a report.

  • If it is unclear what should be done, the best policy is to report the allegations to the proper authorities.
  • Reporting statutes grant those making reports immune from civil damages, provided that the report was made in good faith.

The handbook is intended as a resource for educators on how to react when they suspect sexual impropriety between students and school employees. By all accounts, school leaders across the country could use similar guidance.

Responding to suspected sexual wrongdoing by staff members can present school administrators with some of the most agonizing dilemmas of their careers. Because few school leaders have planned for the possibility in advance, they usually end up improvising.

The result is that in case after case, school officials have been faulted in civil lawsuits, and occasionally in criminal complaints, for failing to recognize, report, and properly act on misconduct in their midst.

One of the problems is that not all states have clear rules about reporting suspected misconduct to outside authorities, whether police, child-protection officials, or the state teacher-licensing agency. Moreover, the rules that do exist are not always well-understood by educators in the field, and often leave so much to personal discretion that even the best-intentioned administrator may be befuddled about what constitutes a reportable suspicion.

There's also the related question of how much school officials should investigate on their own when concerns arise, and how much they should leave to professional investigators. Even experts who have dealt with many cases of educator misconduct say that no hard-and-fast rules apply.

"There are lots of iterations of this that make it complicated," said G. Craig Wood, a lawyer in Charlottesville, Va., who is the immediate past president of the Education Law Association, a national organization based in Dayton, Ohio. "It's a terribly difficult situation."

'Playing Dick Tracy'

When principals and other administrators catch wind of employees' alleged abuse of students, many try to gauge whether the accusations or suspicions have merit by conducting at least some type of internal investigation.

In cases of sex between older teenagers and teachers, for example, they may confront the student, the teacher, or both. If either of them denies involvement, administrators may conclude that no further action is needed.

That sort of sleuthing is often a mistake, legal experts say. By trying to get to the bottom of cases themselves, school leaders run the risk of hindering the work of police and other authorities, causing further harm to victims, and exposing themselves to lawsuits and even prosecution.

And none of that sits well with those charged with enforcing laws against sexual abuse.

"Most police would say the last thing they want is some principal running around playing Dick Tracy," observed Robert J. Shoop, a professor of educational law at Kansas State University, in Manhattan, Kan., who has served as an expert witness in more than 30 cases of educator sexual misconduct.

Jon Scott, an investigator in the sexual-assault unit of the Las Vegas Metropolitan Police Department, says he has worked on many cases in which missteps by school officials undermined cases against abusive educators.

"Most administrators don't understand how much damage they're causing," Mr. Scott said.

And that damage extends to victims, says Terri L. Miller, the president of the advocacy network Stop Educator Sexual Abuse, Misconduct, and Exploitation, or SESAME. Speaking at a national conference she organized in Las Vegas on sexual misconduct by educators, she urged school officials to be sensitive to the vulnerability of victims as they follow up on allegations.

School leaders are often counseled to leave it to the professionals whenever there is a sign of sexual abuse.

G. Craig Wood

"School officials should treat these things as issues to be handled by the police, not as school issues to be treated by school people," said Mr. Wood, a former principal who has represented school districts in abuse cases over the past 20 years.

That's the approach officials in the West Clermont, Ohio, schools took when the first of the four teacher-abuse cases arose three years ago at one of the Cincinnati-area district's high schools.

Michael L. Ward

"We're not very good at investigating; we're not prepared for that," said Michael L. Ward, the superintendent of the 9,000-student West Clermont school system. "We found our sheriff's department to be very efficient."

One case led to the next, thanks in part to the district's decision to let law-enforcement officials take the lead, said Daniel J. Breyer, who heads the criminal division in the Clermont County prosecutor's office. He credits Mr. Ward, a 35-year educator who became superintendent in July 1999, for setting a tone of total cooperation.

"This guy is first class, and the way we have been received as an organization since this guy took over has been unbelievable," Mr. Breyer said. "He's like, 'Hey, whatever you guys need.' "

The prosecutor said Mr. Ward's attitude was particularly noteworthy given the "polarity of opinions" in the community over the assault cases against the educators, all of whom pleaded guilty to having sex with female students who were 17 or 18 at the time.

"The teachers were divided," Mr. Breyer recalled of faculty sentiment in the district. "Some would say that we're glad you got this guy, and others would say this is a witch hunt."

'No Harm, No Foul'

At the same, though, administrators run several risks if they simply hand over cases to outsiders.

For example, school leaders may be left holding the bag if the criminal- justice system resolves a case in an unsatisfactory manner.

"School folks get frustrated when the police do not prosecute aggressively enough," said Mr. Wood, who specializes in school law.

Police may not be able to press charges for reasons ranging from uncooperative students or parents, to the lack of a state law making sex between older teenagers and school employees a crime.

Even when charges are brought, plea bargains or acquittals may leave schools little evidence to go on when it comes time to try to fire employees or seek the revocation of their licenses.

"Juries just don't get it," said prosecutor Lisa Luzaich, the chief deputy district attorney in Clark County, Nev., which includes Las Vegas. "A kid will come in and say, 'Yeah, we did it, but it was OK,' and the jury will say, 'No harm, no foul.' "

For those and other reasons, experts say that schools cannot count on the criminal-justice system to rid their classrooms of sexual predators.

"It's inappropriate for the school system to freeze, just because it's in the criminal-justice system," said Mary Jo McGrath, a Santa Barbara, Calif.-based consultant.

In Arizona, the new guidebook says that educators do not need to investigate suspicions before reporting them, and should report to outside authorities if they have "any facts from which one could reasonably conclude that a child has been abused."

"Determining what should be reported will almost always require the educator to exercise some level of judgment about the allegations," the guidebook notes. "If it is unclear what should be done, the best policy is to report the allegations to the proper authorities."

Yet while the department's manual stresses that schools are not obligated to conduct their own investigations, agency officials acknowledge that districts may want to under certain circumstances.

"Could this office investigate every single allegation? No," said Vince Yanez, an investigator for the Arizona education department. "There are some investigations, especially the most serious ones, where we certainly want to take the point.

"School districts certainly have resources, and they can do some investigations on their own."

Thinking Ahead

If school officials back off while outside investigations proceed, then what should be done about the employees under suspicion? Should they remain on the job, for example, or be placed on leave?

The default response should be to put the employee on administrative leave, said Mr. Wood, the Virginia lawyer. At the same time, he cautioned, administrators must exercise care not to destroy the reputation of an innocent employee.

Many administrators hold off on suspending suspected employees out of just such a concern. But educators should err on the side of protecting children by removing employees if assessing the credibility of suspicions or complaints is likely to take awhile, Mr. Shoop argues. "If you can make a quick determination, OK," the Kansas State professor said. "But you don't want to put the child at risk."

The best time for school systems to consider such issues and work out understandings with local and state authorities on each agency's responsibilities is before a crisis arises, experts advise.

That way, each organization will have a sense of what to expect going into a situation. For example, if police know that school officials have done little to judge the merits of suspicions they report, detectives may proceed differently from how they would if they think the school has established the allegations' veracity, Mr. Wood said.

"That's where the proverbial trigger gets pulled too fast—when the police think the educators have done this thorough investigation," he said.

No matter how much school administrators prepare, cases of sexual misconduct are likely to continue testing their mettle. "It's very tricky stuff," Mr. Wood said, "and there are no easy answers."

Vol. 22, Issue 34, Pages 19-20

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