State tweaks definition of educators' sexual misconduct

Sunday, January 14, 2018

Editor’s Note: This is part of an ongoing series of stories examining educator sexual misconduct. A copy of the comptroller’s report is available with the online version of this story.

One may think sexual misconduct is easy to define, but the state comptroller’s office says Tennessee does not do a good job describing what is inappropriate interaction between a teacher and a student.

Nor is it easy to approve stricter rules to protect students.

A Tennessee Comptroller’s Office of Research and Education Accountability (OREA) report issued last week details weaknesses in the way state and school district officials protect students from educators who commit sexual misconduct.

One Tennessee lawmaker has spoken out in regard to the report.

“This issue is something that should concern all of us in the Tennessee General Assembly, in our communities and in our schools,” State Rep. Jay Reedy, R-Erin, said in a statement. “It is important to note that a child cannot consent to any manner of sexual activity at all. The frequency of child sexual abuse is problematic to determine because it is often not reported.”

Tennessee law contains no specific definition of educator misconduct, the report says. It uses the phrase in both the criminal and education sections of law to refer to situations that require reporting of incidences of child sexual abuse to the Department of Children’s Services.

Directives conflict

Because school district policies for the safety of students are written to follow state law, most are also not specific about what constitutes sexual misconduct between school personnel and students, the report says. OREA found that few district policies concerning child abuse and neglect also refer to “child sexual abuse” in the context of school employee misconduct. State law requires that school officials, personnel, and local board of education members report any allegation, including child sexual abuse, to DCS, law enforcement or juvenile court. Two separate district policies may apply to some of the same offenses committed by educators who have inappropriate contact, but, in most districts, the two policies contain different reporting requirements.

State law contains the Tennessee Educator Code of Ethics, a violation of which can result in the termination of an educator’s contract, but the code does not explicitly address appropriate relationships and boundaries between educators and students.

License lingo

The State Board of Education created a revised teacher licensure rule in mid-2016 following a scathing report by a USA Today series on states’ handling of teacher misconduct, the report states. A board subcommittee wanted to have more descriptive language defining sexual misconduct, including specific examples of behavior and actions that were inappropriate.

The subcommittee presented a new rule to the board that for the first time defined and gave examples of certain inappropriate behaviors and actions and giving a range of disciplinary actions against teachers’ licenses. The board adopted the rule on Oct. 20, 2016. The rule was set to become effective 90 days later on July 19, 2017. But on July 10, 2017, the Tennessee Education Association (TEA) asked for a public hearing, which delayed the rule’s implementation.

On July 28, 2017, the board approved the new rule as a temporary emergency measure, which is allowed in cases of immediate danger to the public. The board took that action, it said, because of a December 2016 chancery court order related to a former educator convicted of statutory rape. That court ruling told the board to not consider an applicant’s prior convictions that had been expunged, nor rely on the “other good cause” category in the previous rule. The board previously had relied on the “other good cause” wording to act against teacher licenses. The board had to reinstate the teacher’s license despite having admitted to statutory rape. So the board believed the court order was an immediate danger to the public.

Some educators object

A rulemaking hearing was held on Sept. 19, 2017, in which TEA voiced concerns with the board’s authority to issue rules on the revocation, suspension and formal reprimand of license holders and inconsistent definitions and language within the rules. The board updated and clarified the definitions.

Board members appeared before the Joint Government Operations Committee on Nov. 15, 2017. The Professional Educators of Tennessee and Tennessee Organization of School Superintendents spoke in favor of the rule. Two representatives of the Tennessee Education Association spoke against the rule.

The emergency rule is in effect until March 4. A revised version of the rule has been approved by the Attorney General and will become effective on March 5. The rule will go to the Government Operations committee “in early 2018.” If the committee denies the rule, it will expire on June 30, 2019. If the rule is approved, it will not expire.

One example of inappropriate communication listed in the emergency rule is: “Inappropriate Communication (Explicit) - Any communication between an educator and a student that describes, represents, or alludes to sexual activity or any other illicit activity.”

The emergency rule handles non-explicit communication too: “Any communication between an educator and a student that is beyond the scope of the educator’s professional responsibilities. Examples of such non-explicit inappropriate communications include, but are not limited to, those communications that discuss the teaching staff member’s or student’s past or current romantic relationships; those that include the use of profanities or obscene language; those that are harassing, intimidating, or bullying; those that attempt to establish a personal relationship with a student; and those that are related to personal or confidential information regarding another school staff member or student.”

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