David's Texas Senate Education Committee Testimony 12/7/2015
Mr. Chairman and members of the Texas Senate Education Committee: Thank you for the invitation and opportunity to testify before you today and for your selfless service and advocacy on behalf of the schoolchildren of Texas.
My name is David Thompson, and I am currently a professor of educational leadership at The University of Texas at San Antonio whose interests center on legal and ethical issues facing PK-12 educators. I’m honored to be serving in my 28th year as a Texas public educator at both the PK-12 and higher education levels, where I have served in teaching, coaching, and administrative capacities. I’m humbled to have co-authored what appears to be the only book devoted exclusively to the Texas Educators’ Code of Ethics. Most importantly, my wife and I are proud parents of our daughter, who as we speak is embarking on her career as a Texas public school teacher; and our son, a multiply-disabled eighth grader who absolutely loves his teachers in the North East ISD.
If nothing else, students deserve the opportunity to attend our schools in an environment that is safe. This safety must extend to the opportunity to be free from sexual or romantic predation suffered at the hands of the very educators whom the people and taxpayers of Texas entrust to teach our children. Elsewhere today, you will likely hear statistics that demonstrate a 53 percent increase in the number of “inappropriate relationship/sexual misconduct” investigations opened by the Texas Education Agency over the past seven reporting years. One investigation is one too many, and the 188 investigations opened in the 2014-2015 school year are a sign that significant action should be taken. As such, I applaud Lt. Governor Patrick for charging the Senate Education Committee to study this critical issue, and I wish you the best as you grapple with this topic.
My comments today will touch on the following topics:
social media and its role as a catalyst in educator sexual misconduct;
child abuse reporting;
the interaction between school districts and law enforcement in investigating reports of educator sexual misconduct;
recognizing signs of sexual grooming of children;
educator preparation and continuing professional education for educators in the area of educator ethics and ethical decision-making; and
Failing to disclose to prospective employers the substantiated sexual misconduct of an educator.
As appropriate, my comments will also include considerations and recommendations.
It is no secret that social media is playing a more prominent role in inappropriate educator-student relationships, as it provides the adult educator with what amounts to unsupervised access to students and minors. This was recognized by the State Board for Educator Certification in its 2010 revision to the Texas Educators’ Code of Ethics, when it added Standard 3.9 to the Code prohibiting inappropriate communication, including electronic communication, between educators and students/minors. While our research group at UTSA is analyzing the past 15 years of Texas educator discipline records to gain an empirical sense of the prevalence of social media in inappropriate educator-student relationships, more recent media accounts have detailed how social media plays a role in educator sexual misconduct. For example, a July 2015 Dallas Morning News article (Haag, 2015) published the number of text messages exchanged between a teacher who pleaded guilty to an improper educator-student relationship and the student on whom she preyed. That number: a staggering 15,371. Another media story from 2015 reports that a Texas teacher interacted with two of his female students on a “fetish” site prior to engaging in sexual misconduct with both students (Campbell & Vanderlaan, 2015). In fact, it appears the role of social media in educator sexual misconduct is the rule rather than the exception. Couple this with the fact that, in a 2012 CNN survey, roughly 70% of teens reported hiding their online activity from their parents, and you have what amounts to the Internet as a playground for sexual predators and our children as the unsupervised targets.
Our research group at UTSA, including doctoral student Catherine Robert, herself a former Executive Director of Human Resources, has for nearly the past year collected and presented our analysis of 300 randomly-selected Texas school districts and their social media policies and employee handbook social media provisions. Among our major findings are:
Less than one-half (48%, or 144) of the 300 districts posted their employee handbooks in the public domain where parents could have access districts’ employee social media conduct expectations.
91% of the 300 school districts use the model policy recommended by the Texas Association of School Boards.
81% of the 144 school districts who posted their 2014-2015 employee handbooks in the public domain use the TASB model employee handbook or variations thereof.
16% of the 144 school districts who posted their 2014-2015 employee handbooks in the public domain had no restrictions on employees’ text messaging with students.
63% of the 144 school districts who posted their 2014-2015 employee handbooks in the public domain prohibit direct electronic communication with students during certain hours of the day, typically between the hours of 10 PM and 7 AM.
Based on our findings, we advanced the following recommendations and considerations (happily, some of these recommendations have been adopted by a significant number of school districts for the 2015-2016 school year):
As part of their required postings, Texas school districts should be required to post their employee handbooks in the public domain.
Text messaging should be addressed and restricted in all employee handbooks to a limited class of certified educators and only for designated purposes related to the scope of their employee duties specific to their area (e.g., for extracurricular sponsors, only for purposes related to that activity).
Direct communication, particularly text messaging, between educators and students should be copied to parents and the educator’s supervisor (TASB has recommended this provision in its 2015-2016 model employee handbook).
Educators should receive annual professional development on proper use of electronic media.
Child Abuse Reporting
Having taught education law for 22 years, and having conducted professional development on educator ethics a great deal over the past several years, I’ve come to the conclusion that there is as great deal of either misunderstanding or ignorance of educator responsibilities when it comes to child abuse reporting. Among two of these misunderstandings are that educators may delegate their mandatory duty to report real or suspected child abuse or neglect, and that they must first report their suspicions to school officials prior to making the required report. More recently, a media report (Emily, 2015) detailed what has resulted in a retaliation lawsuit alleging that a high school principal reprimanded a teacher who reported her suspicions of child abuse to local police without notifying the principal or school district police beforehand. Responding in part to similar incidents, the 84th Legislature passed HB 1783, which explicitly permits educators to report crimes witnessed at school to the law enforcement agency of their choice without first having to report their suspicions to supervisory school officials. Texas school districts have very clear and legally solid child abuse reporting policies. Thus, understanding child abuse reporting responsibilities is an ongoing professional development issue for teachers, school administrators, and other school employees, and should be part of educator preparation and continuing professional education.
Interaction and Collaboration among School Districts and Law Enforcement
This past summer, I spent a great deal of time traveling across Texas providing professional development to school-based law enforcement officers with the Texas School Safety Center and to school districts on ethical conduct, ethical decision-making, and responsible use of social media. Anecdotally but consistently, one of the themes I heard from both law enforcement officers and school officials is the increasing frustration expressed by law enforcement officers that school administrators are not doing their best to investigate reports of educator sexual misconduct. Specifically, their frustration is that school administrators, and particularly principals, do not understand when educator sexual misconduct ceases to be a school matter and becomes a law enforcement matter. Further, many school-based law enforcement officers with whom I interacted this summer do not fully believe that school leaders are taking this matter as seriously as they should. Again, I believe this to be a professional development issue for principals, and I also believe that increased collaboration between law enforcement (school-based and non-school based) is necessary to do justice to investigating and, as warranted, properly prosecuting reports of educator sexual misconduct.
Recognizing Signs of Sexual Grooming of Children
It’s important to remember that the overwhelmingly majority of educators are not sexual predators. Nonetheless, with the increase in inappropriate educator-student relationships, it is important that educators understand the signs of sexual grooming of children so that the profession can monitor its own conduct. This does not mean that educators should be peeking around every corner trying to “catch” their colleagues; however, the signs of grooming are sufficiently widely-researched and recognized that professional educators, when observing these signs among their colleagues, including those whom they supervise, can intervene so that the child is not sexually or romantically victimized by an educator. Further, this intervention might also save a career.
Grooming is defined as:
A process by which a person prepares a child, significant adults and the environment for the abuse of this child. Specific goals include gaining access to the child, gaining the child’s compliance and maintaining the child’s secrecy to avoid disclosure. This process serves to strengthen the offender’s abusive pattern, as it may be used as a means of justifying or denying their actions. (Craven, Brown, & Gilchrist, 2006, p. 297)
Charol Shakeshaft (2013, pp. 9-10), a pre-eminent researcher on educator sexual misconduct, has identified through her work two types of abusers in education: fixated abusers and opportunistic abusers. According to Shakeshaft, fixated abusers are typically found in elementary and lower middle school grades (that is, teaching in these grades), are more likely to be male, are generally regarded to be good educators, and often receive support from the community when their misconduct is discovered. Opportunistic abusers (i.e., those not necessarily “exclusively attracted to children” [p. 10]) are typically found in upper middle and high school grades, may never have emotionally left their middle and high school years, and may hang out with students too much in their attempts to be “cool” (p. 10). Shakeshaft asserts that roughly 1/3 of abusers in schools are “fixated,” while the other two-thirds tend to be opportunistic. In either event, there are warning signs associated with both types of abusers, and one such list (Knoll, 2010, p. 376) notes that groomers tend:
To spend excessive time alone with students, particularly outside of class and in private places;
To single out students for preferential treatment;
To intentionally befriend parents/caregivers;
To act as a student’s confidante;
To give gifts, cards, letters and other tokens;
To communicate inappropriately with students, including through social media;
To display overly and overtly affectionate, even flirtatious, behavior; and
To be known by students, who may even gossip or joke about what is obvious to them but not to others.
Again, recognizing the signs of sexual grooming is a professional development issue; however, acting on this recognition is an ethical decision-making issue, which I will discuss next.
Educator Preparation and Continuing Professional Education on Educator Ethics and Ethical Decision-making
Unfortunately, and with a few exceptions, precious little time is devoted in teacher and, I suspect, other educator preparation programs to the Texas Educators’ Code of Ethics, much less ethical decision-making. For teacher preparation programs, SBEC requires “300 clock hours of coursework and/or training” (19 Tex. Admin. Code § 228.35 [a] ); for principal and superintendent certification programs, SBEC requires 200 clock hours (19 Tex. Admin. Code § 228.35 [b]). While the standards for teacher and professional certificates require instruction in the Texas Educators’ Code of Ethics and ethical decision-making, there are currently no required clock hours for this type of instruction. With regard to continuing professional education requirements, SBEC requires 150 clock hours every five years for standard teacher certificate holders, and 200 clock hours every five years for master teacher and professional certificate holders (please see generally 19 Tex. Admin. Code § 232.13). The provisions (19 Tex. Admin. Code § 232.11 [c]) for continuing professional education requirements as it relates to “professional ethics and standards of conduct” (and legal issues, for that matter) are permissive rather than mandatory. For individuals holding the standard education aide certificate, there are no requirements for continuing professional education (19 Tex. Admin. Code 232.13 [i]). Surely the people, taxpayers, and school children of Texas deserve better. Indeed, this must change, and the regulatory authority exists for SBEC to require that a certain number of clock hours be devoted to educator ethics and ethical decision-making in both preparation programs and continuing professional education. Further, the Legislature could also draft and pass statutory language that requires SBEC to set a minimum number of clock hours for these topics and to, within reasonable guidelines, describe the desired content of these topics.
Failing to Disclose to Prospective Employers the Substantiated Sexual Misconduct of an Educator
This phenomenon, often called “passing the trash,” occurs when a school district or similar education entity knowingly fails to disclose to a prospective employer the substantiated sexual misconduct of an educator. To be honest, I do not know if, or how often, this phenomenon occurs in Texas education; further, I would not recommend policy initiatives until this phenomenon has been studied. However, I will tell you that in 2011 the Missouri Legislature enacted the “Amy Hestir Student Protection Act,” the namesake of which was a middle school student sexually abused by a teacher in the mid-1980s, after which the teacher moved from district to district until his retirement, even though Ms. Hestir had reported the misconduct in the interim. The most relevant requirements of this act include:
School districts may not investigate educator sexual misconduct alleged by a student; the “children’s division” must investigate these reports to determine whether such allegations are substantiated. School officials may investigate to the extent that it is necessary to determine the employment status of the accused educator;
School districts must adopt a written policy on the information it shares about former employees with prospective employers (§ 162.068  R.S. Mo. 2015); this policy must include who is permitted to respond to prospective employers’ requests and the information that must be disclosed;
School employees are immune from civil liability to the extent that they are permitted to respond to employers’ requests and to the extent they communicate only the information allowed by the policy. School employees who are sued may request that the state’s attorney general defend him or her, with limited exceptions (§ 162.068  R.S. Mo. 2015).
School districts/charter schools are “directly liable for damages to any student of a subsequent employing district or charter school who is found by a court of competent jurisdiction to be a victim of the former employee’s sexual misconduct, and the district or charter school shall bear third-party liability to the employing district or charter school for any legal liability, legal fees, costs, and expenses incurred by the employing district or charter school caused by the failure to disclose such information,” if the sending school district fails to disclose substantiated allegations of sexual misconduct when furnishing an employment reference for an employee who has resigned or been terminated for such misconduct (§ 162.068  R.S. Mo. 2015); and
Protects school employees who, in good faith, report educator sexual misconduct, from discharge or any other discrimination. (§ 162.068  R.S. Mo. 2015).
Again, thank you for the opportunity to offer these comments and for your service to the schoolchildren of Texas. At your pleasure, I will be happy to answer your questions.