State comptroller: Are we doing enough to protect students?

Published 12:08 pm Tuesday, January 23, 2018

The ‘#Me Too’ campaign taking the country by storm could be applied to at least four recent Tennessee school district cases of sexual misconduct. The Tennessee Comptroller’s Office just released a report examining current sex abuse policies in public schools and his office’s take on the improvements needed to handle the issue.

A popular national news magazine, the comptroller report states, graded Tennessee among the lowest of the low due in large part to accepted hiring practices. The 2016 article looked at how each district went about finding and weeding out those with a criminal history of sexual abuse. The story focused on the ease with which a perpetrator can move, seemingly undetected, from school district to school district.

The Comptroller’s Office of Research and Education Accountability (OREA) looked at policies, practices and state laws to determine areas of risk or weakness.

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In particular, OREA looked into the portion of the ‘Every Student Succeeds Act’ that requires states and school districts to insure that no educator be hired from another district who has previously committed sexual misconduct with a student.

According to the findings, Tennessee has yet to address this requirement.

State schools use criminal history fingerprint background checks, conducted by the Tennessee Bureau of Investigation (TBI), when hiring. Districts are also expected to check the Department of Children’s Services Registry, which lists those substantiated perpetrators of child abuse, severe child abuse, child sexual abuse or child neglect. The Department of Health Registry, handling abuse of ‘vulnerable people,’ and the TBI Sexual Offender Registry are two other agencies schools must use when detecting undesirables. State law prevents districts from hiring any person whose name is on any of these databases.

An internal audit by the Department of Education (DOE) in 2013-14 showed that not all districts were compliant in conducting background checks at the time of hire.

In Tennessee, the individual districts must determine whether an applicant meets the baseline requirements. Other states require that the applicant be responsible for completing the background and database checks when seeking a license to teach.

Both approaches have risks, according to the OREA report. Requiring that school districts ensure that all the steps are completed at the time of hire means that some steps may not have been consistently followed. An individual could be hired for whom clearance has not been fully vetted. Requiring that individuals seeking a teaching license initiate all criminal background checks would free districts from this responsibility, but it might also mean a lag time between completion and the time a person is hired, the report states.

The OREA also investigated district safety policies. The report states that it is ‘unclear’ just what students are taught in grades K-12 in order to keep them safe from predators.

One of the findings shows inconsistencies in organizing and maintaining records of those charged with teacher misconduct. This inconsistency could affect the accuracy of the information in the State Board of Education database, which is responsible for tracking the status of teacher licenses.

According to the report, the state board is already working on this deficiency. However, lack of staff and capacity could affect the speed with which the requirement is met.

The report also finds that Tennessee law does not specifically define educator misconduct and that district policies lack clarity on just what is sexual misconduct by a teacher toward a student.

The report states that the Teacher Code of Ethics, found in Tennessee law, does not refer to appropriate boundaries between educators and students.

The Claiborne school district has incorporated sexual misconduct policies. Page 70 of the Employee Handbook Code of Ethics spells out acceptable case management options when dealing with the issue.

Findings of educator to student misconduct will result in immediate dismissal upon the first offense.

When sexual misconduct occurs between two adults or when a student or students are found guilty, one of three options can be considered. A finding of ‘mostly aggravating’ would lead to immediate dismissal.

The milder one, that takes into consideration mitigating circumstances, calls for an official reprimand on the first offense, followed by suspension and dismissal for the second or third.

If the facts in the case show a ‘relatively equal’ status of misconduct, the perpetrator will face suspension for the initial offense, followed by dismissal for a second or third incident.

Once an employee is charged with sexual abuse, that person must report it to his or her immediate supervisor within 72 hours of the incident. The supervisor must then immediately notify the director of schools, who will report the incident to the school board as soon as is practical.

The director or designee must then notify the appropriate outside agency which could include law enforcement, social services or the State Board/State Department, where mandated.

Dr. Joseph Miller, director of Claiborne schools, said in an interview that to the best of his knowledge, there have been no recent reports of sexual misconduct within the county public school system.

“If we were ever to have a situation like this, that were to arise in our district, obviously, we would exercise due diligence with all parties – all stakeholders involved – to insure that the law is followed and adhered to,” said Miller.

On page 59 of the handbook, sexual harassment is defined as any act or failure to act that involves unwelcomed sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature.

Submission to or rejection of such conduct, explicitly or implicitly, is deemed sexual harassment when the action is presented as a term or condition of a person’s employment or educational development, the basis for employment or education decisions or when it has the purpose or effect of unreasonably interfering with an individual’s work or educational performance.

When the action creates an intimidating, hostile or offensive work or educational environment, it is harassment.

Some examples include touching, indecent exposure, sexual contact, unwelcomed requests for sexual favors, propositions or pressure for sexual activity and continued suggestions for a date or social activity outside the workplace once made clear the suggestion is unwelcomed.

Offensive flirtations, jokes, suggestive remarks, sexual innuendos and lewd comments are considered harassment. So is the display of pornographic or sexually suggestive images, objects, written materials, emails, text messages or faxes. Leering, whistling or sexually suggestive gestures, movements or facial expressions are also considered sexual harassment, according to the Claiborne school system Code of Ethics.

Some Tennessee school districts conduct periodic background checks to insure that the information is up-to-date.

Other states like Pennsylvania requires anyone working with children to renew their background checks every five years.

The ‘Rap Back’ program, now used in several states, was first developed to increase the odds of detecting misconduct once the new hire settles into his or her job. The lone ‘snapshot in time’ presented by the initial background check upon hire is insufficient to keep abreast of potential ongoing acts of sexual misconduct, according to the OREA report. States using the Rap Back program are able to receive continuous updates on employees who work with children.

There are no current processes in place requiring districts to audit contractors and vendors to make sure those companies are doing background checks on their employees who work within the school setting.

In Claiborne county, however, the school board initiates background checks of every volunteer who might come into contact with students.

Tennessee is among 49 states or jurisdictions that have entered into an interstate agreement to share information via the National Association of State Directors of Teacher Education and Certification (NASDTEC). The clearinghouse sifts through the licenses and teacher certificates, looking for those individuals who have had actions taken against them.

New legislation could very well be on the horizon. The Comptroller’s findings were reported to the Tennessee Senate Education Committee on Jan. 10 for review.