David's Texas House Public Education Testimony 5/11/2016

Mr. Chairman and members of the Texas House Public 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. Chairman Aycock, a special thank you for your leadership in Texas public education. May the next phase of your life be fruitful, and I sincerely hope you stay engaged in public education policy.

My name is David Thompson, and I am currently a professor of educational leadership and policy studies 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 completing 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 completing her first semester as a Texas public high 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 Speaker Straus for charging the 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:

  1. preliminary findings from research we are conducting at UTSA to better describe this issue;

  2. reporting requirements placed on superintendents and open-enrollment charter school directors;

  3. school district and open-enrollment charter school employment policies, including the failure to disclose to prospective employers the substantiated sexual misconduct of an educator; and, if time permits;

  4. pre-service preparation and continuing professional education for educators in the area of educator ethics and ethical decision making; and,

  5. the interaction between school districts and law enforcement in investigating reports of educator sexual misconduct.

As appropriate, my comments will also include considerations and recommendations.

Preliminary Findings from Research at UTSA

For the past year, a small group at UTSA, including me and Catherine Robert, doctoral research fellow and a former Texas school district executive director of human resources, have been archiving and analyzing the first part of 15 years of Texas educator discipline data obtained through public information requests from TEA. To date, we have archived and analyzed data from mid-2008 through 2014 for educators whose last names range from A to R, inclusive. A summary of our findings follows:

  • 2,067 educators received sanctions to their certificates

  • Of those 2,067, 29.1% have received sanctions for “inappropriate relationships with students or minors” (IRWSM), and 7.5% have received sanctions for sexual misconduct, as those offenses are classified by the Texas Education Agency.

  • Thus, combining these two categories of offenses, over 36% of sanctions issued during this time period are for either sexual misconduct or IRWSM.

  • Nearly 82% of educators sanctioned for sexual misconduct have either surrendered their certificates or have had their certificates revoked.

  • Nearly 70% of educators sanctioned for IRWSM have either surrendered their certificates or have had their certificates revoked. Importantly, not all of the sub-classifications under IRWSM involve contact with students; for example, one sub-category is titled “poor judgment in maintaining boundaries.” Further, we have yet to fully examine individual cases to uncover the type of sanction associated with each offense.

  • To date, our most significant recommendation is that centralized data management processes be reviewed and, as necessary, modified to ensure an accurate portrayal of educator sanctions. Importantly, this is an issue with which many state education agencies are struggling,[1] and the timely and accurate reporting of data can prevent sanctioned educators from moving between states and harming more students.

Superintendent Reporting Requirements

In Texas, a public school superintendent and open-enrollment charter school director (as well as others) must notify SBEC if an educator is terminated, in relevant part, based on a determination that the educator “abused or otherwise committed an unlawful act with a student or minor” or “was involved in a romantic relationship with or solicited or engaged in sexual contact with a student or minor.”[2] Further, the superintendent or charter school director (hereafter referred to CEO) must also make the same notification if “the educator resigned and there is evidence that the educator engaged in [the same] misconduct.”[3] The CEO must make this notification within 7 days of the employee’s resignation or termination,[4] notify his/her board,[5] and complete any investigation commenced for the two offenses named above, even if the educator resigned.[6] Also, the CEO must make a report to SBEC for the same misconduct “within seven calendar days of the date the person first obtains or has knowledge of those circumstances.”[7] Moreover, the CEO is immunized from civil and criminal liability for making a good faith notification,[8] but is subject to certificate sanctions for failure to make this report.[9]

Over time, including more recently, there have been documented incidents of superintendents or other CEOs (and I hasten to add that nearly all CEOs discharge this duty routinely) not timely filing a report, or not filing a report at all. The obvious consequence of not filing the report is that the educator’s certificate is not flagged for investigative review, which enables the educator to move to another district, placing children in the receiving district at risk. While the possibility of a certificate sanction for failure to report can act as a deterrent, I believe it is not enough. Thus, I encourage the committee and the Legislature to consider a continuum of policy responses to failing to report. These responses could include, at a minimum, a criminal penalty for the CEO’s knowing failure to report that results in “a student in a subsequent employing district or charter school [being] found by a court of competent jurisdiction to be a victim of the former employee’s sexual misconduct.”[10] This provision would limit the criminal liability to one category of employee (superintendents) for a very narrow set of facts, and incorporates the “knowing failure” standard for failing to report child abuse found in Chapter 261 of the Texas Family Code. The criminal sanction should be the same for a professional’s knowing failure to report child abuse, i.e., a Class A misdemeanor. The committee could also consider a range of civil penalties for a CEO’s knowing failure to report that results in the educator being criminally adjudicated for sexual misconduct or abuse of students.

Failing to Disclose to Prospective Employers the Substantiated Sexual Misconduct of an Educator/Severance Agreements

Related to a CEO’s knowing failure to report to SBEC discussed in the previous section, the failure to disclose educator sexual misconduct to prospective employers is often called “passing the trash,” and occurs when a school district or similar education entity knowingly fails to disclose to a prospective employer the substantiated sexual misconduct of an educator. While I cannot say how often this occurs, when it does, it erodes the public’s trust in our elected and appointed school officials. The federal government and three states have recently taken legislative action to stem this phenomenon and protect students.

Federal government. In the recent reauthorization of the Elementary and Secondary Education Act of 1965, now known as the “Every Student Succeeds Act,” the U.S. Congress now directs states, state education agencies, or local education agencies that receive federal financial assistance under ESSA to “have laws, regulations, or policies that prohibit any individual who is a school employee, contractor, or agent, or any State educational agency or local educational agency, from assisting a school employee, contractor, or agent in obtaining a new job, apart from the routine transmission of administrative and personnel files, if the individual or agency knows, or has probable cause to believe, that such school employee, contractor, or agent engaged in sexual misconduct regarding a minor or student in violation of the law.”[11] Thus, federally-assisted states and local education agencies will have to review and, as necessary, revise their policies to reflect this federal directive.

Missouri. 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;[12]

  • School districts must adopt a written policy on the information it shares about former employees with prospective employers. This policy must include who is permitted to respond to prospective employers’ requests and the information that must be disclosed;[13]

  • 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;[14]

  • 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;[15]

  • Protects school employees who, in good faith, report educator sexual misconduct, from discharge or any other discrimination.[16]

Oregon. In 2010, Oregon enacted comprehensive legislation governing local school district employment practices, including severance agreements. The highlights of this legislation follow:

  • Before a school district or other education provider can hire an applicant, the applicant must provide (1) a list of all previous education employers; (2) a written statement as to whether an applicant “has been the subject of a substantiated report of abuse or sexual conduct[,] or is the subject of an ongoing investigation related to a report of suspected abuse or sexual conduct;” and (3) a written authorization to all previous education employers to disclose whether the applicant “was the subject of any substantiated reports of abuse or sexual misconduct related to the applicant’s employment” with prior education entities.[17] The educator’s refusal to provide this information renders the educator ineligible for employment, with limited exceptions.[18]

  • Requires the education provider to contact the applicant’s three most recent employers and request the information noted immediately above.[19]

  • Designates one person and an alternate to “receive reports of suspected abuse of sexual conduct by school employees” and to carry out the investigation.[20]

  • Provides that the education provider’s disciplinary records of an employee who is convicted of certain crimes, including abuse and sexual conduct, are not exempt from disclosure under the state’s public information act, and must be disclosed to any person on request.[21]

  • Prohibits an education provider from entering into a severance or other agreement that:

  • ​“Has the effect of suppressing information relating to an ongoing investigation related to a report of suspected abuse or sexual conduct or relating to a substantiated report of abuse or sexual conduct by a current or former employee;

  • Affects the duties of the education provider to report suspected abuse or sexual conduct or to discipline a current or former employee for a substantiated report of abuse or sexual conduct;

  • Impairs the ability of the education provider to discipline an employee for a substantiated report of abuse or sexual conduct; or

  • Requires the education provider to expunge substantiated information about abuse or sexual conduct from any documents maintained by an education provider.”[22]

Pennsylvania. Act 168, enacted in 2014, also seeks to address many of the issues elaborated thus far. Modeled in part after the Oregon legislation, Act 168 does the following:

  • Requires an applicant for a position at a school entity who will have direct contact with children to disclose, on a state-promulgated form, much of the same information as required in Oregon prior to receiving an offer of employment. However, the statute goes further in what it requires the applicant to disclose as part of the application process, namely, whether the applicant:

  • “has been the subject of an abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency or child protective services agency, unless the investigation resulted in a finding that the allegations were false;

  • has ever been disciplined, discharged, nonrenewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of abuse or sexual misconduct as described in [above] were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct as described in above; or

  • has ever had a license, professional license or certificate suspended, surrendered or revoked while allegations of abuse or sexual misconduct as described [above] were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct as described [above].”[23]

  • Requires prospective employers to request dates of employment from prior education employers listed by the applicant as well as the information specified in the clear bullets above.[24]

  • Requires previous employers to disclose the requested information, again on a state-promulgated form, within 20 days after receiving the request.[25]

  • Provides that information disclosed under this act are public records.[26]

  • Immunizes from civil liability disclosures that are not “knowingly false.”[27]

  • Prohibits severance and other similar agreements in a manner akin to Oregon.

  • Empowers the state education department to assess, after a hearing, civil penalties not exceeding $10,000 for willful violations of this act.

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;”[28] for principal and superintendent certification programs, SBEC requires 200 clock hours.[29] 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.[30] The provisions[31] for continuing professional education requirements as it relates to “professional ethics and standards of conduct” are permissive rather than mandatory. For individuals holding the standard education aide certificate, there are no requirements for any continuing professional education.[32] 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.

Interaction and Collaboration among School Districts and Law Enforcement

In summer 2015, 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 last 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.

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.

[1] Steve Reilly, Broken Discipline Tracking Systems Let Teachers Free Troubled Pasts. USA Today, February 14, 2016, http://bit.ly/1TzLF5D (last visited May 9, 2016).

[2] Tex. Educ. Code § 21.006.

[3] Tex. Educ. Code § 21.006 (b)(3).

[4] Tex. Educ. Code § 21.006 (c).

[5] Tex. Educ. Code § 21.006 (d).

[6] Tex. Educ. Code § 21.006 (b-1).

[7] 19 Tex. Admin. Code § 249.14 (d).

[8] Tex. Educ. Code § 21.006 (d).

[9] See note 3, supra.

[10] §162.060 R.S. Mo. (4)

[11] 20 U.S.C. § 7926.

[12] § 160.261 (11) R.S.Mo.

[13] § 162.068 (1) R.S.Mo.

[14] § 162.068 (3) R.S.Mo.

[15] § 162.068 (4) R.S.Mo.

[16] § 162.068 (6) R.S.Mo.

[17] ORS § 339.374 (1) and (2).

[18] ORS § 339.384 (1).

[19] ORS § 339.374 (2).

[20] ORS § 339.372 (4).

[21] ORS § 339.388 (8)

[22] ORS § 339.392 (1).

[23] 24 P.S. § 1-111.1.

[24] 24 P.S. § 1-111.1 (b)(2).

[25] 24 P.S. § 1-111.1 (d).

[26] 24 P.S. § 1-111 (d)(4).

[27] 24 P.S. § 1-111 (d)(5)

[28] 19 Tex. Admin. Code § 228.35 (a)(3).

[29] 19 Tex. Admin. Code § 228.35 (b).

[30] See generally 19 Tex. Admin. Code § 232.13.

[31] 19 Tex. Admin. Code § 232.13 (i).

[32] Id.

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