Tuesday, August 18, 2009

Background checks, teachers accused of sexual misconduct and true child protection

The Indianapolis Star had this editorial today which comments on public school teachers who have been accused of sexual misconduct being asked to leave with a severance package. Please read this editorial and then my comments.

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Easy way out is hard on the kids

Lawrence Township school officials and their attorneys say they had no choice.

Faced with credible allegations of sexual misconduct against four teachers, the district tried to fire them, concluded it would be too difficult to substantiate the accusations, worried about legal liability and finally opted for what an assistant superintendent calls "the lesser of two evils."

That is, the school system paid Clifford Campbell, George Fallowfield, Michael S. Graham and Thomas Woodward to hit the road -- and kept the reasons for their departure secret, freeing them to work with vulnerable young people somewhere else.

Whether or not that outcome truly was unavoidable, it is in no way satisfactory to educators, parents or the public. State Superintendent of Public Instruction Tony Bennett and state teachers union official Dan Clark, among others, said as much when apprised of a StarWatch investigation published Sunday.

In sympathy toward Lawrence Township, no criminal charges were filed against the teachers and none has conceded guilt. Proving the claims would not have been easy, especially with minors having to come forward as witnesses.

But, as Bennett points out, the standard of proof for teacher malfeasance is lower than that for criminal prosecution. He intends to investigate the matter himself to determine whether the four should continue to hold licenses. Meanwhile, the State Board of Accounts has asked the Marion County prosecutor to look into the technicalities of the payouts.

More broadly, this sad episode points to gaps in Indiana law. Unlike some other states, school districts here are not required to report the circumstances behind employee departures to the state department of education. Also, some states forbid the kind of secret deal Lawrence Township and the four teachers struck. The cases came to light only after The Star pressed in federal court for the release of information.

The Indiana General Assembly, which only recently tightened criminal background checks for school job applicants in response to another Star investigation, needs to correct the statutory flaws regarding existing and departing teachers. The Lawrence Township affair may well be the tip of an iceberg.

At this point, no one knows the extent of the practice of covering up alleged reprehensible behavior by school employees. The state needs to know, and it needs more power to provide recourse to both accusers and accused. School districts also must ask themselves a hard question: Is the easy way out the only way out? Indiana's children deserve better than a choice between evils.

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The Star must be commended for their continuing efforts to investigate these matters and protect children. The difficulty in asking who is acting in the best interest of our children is that, whether through delusion, perceived legal obligation or actually doing it, most people believe they are even when acting opposite of each other.

In the immediate instance we have four teachers who have been accused of sexual misconduct but no criminal charges were filed. Although there is no requirement that a teacher be criminally charged or convicted to be fired the district still felt it would be difficult to substantiate. A dismissal for 'sexual misconduct' would make it difficult for a teacher to get hired in most school districts and thus could effectively deny to these teachers the opportunity to work in their chosen field.

So a school district must be very careful in stating a reason for a dismissal as it could result in a lawsuit and in these cases it was determined that they most likely would have sued. So now these educators are free to work in other school systems.

I choose to address this because I wondered two things; Why this happens; and, Is this a bad thing.

It seems to be a simple proposition, if there is a credible accusation against a teacher of having inappropriate sexual contact with a child then fire that teacher and let others know the reason. However, the standard of defamation intercedes in the process at this point. If a teacher wanted to sue for damages to his or her reputation he or she would need to show that the accusation was not credible, that it resulted in some type of public ridicule or scorn and that the teacher was financially aggrieved such as not being able to find similar employment.

The problem the school district here faced is that the public scorn element would be easily satisfied by the large number of people who have no respect for our constitutional protection of innocent until proven guilty. Does this mean we allow sex offenders to remain in the classroom until they are convicted? Absolutely not. We have administrative procedures available that maintain sufficient due process which, I feel, should have been used. The civil standard of proof by a preponderance of the evidence is satisfactory.

My local school district, the Lebanon Community School Corporation, recently implemented a policy stating that parents who want to come see their children at school other than at regular performances like sporting events must submit to a criminal background check. I oppose this and all similar policies that rely on arbitrary standards to attempt to weed out sex offenders or other who may be believed to pose a danger to children. The four teachers in this immediate case have nothing on their records and can be back in the classroom with students while no one would know of the accusations without specifically searching for it elsewhere.

It is time that school administrators start to earn their $100,000+ per year salaries and make administrative decisions rather than relying upon pieces of paper to make decisions for them. The policies and paperwork they rely upon have made teacher hiring and firing or admission of visitors almost as automated as applying for a mortgage. Administrators could soon be replaced by kiosks strategically placed throughout the buildings. If this is the way they are going to continue to administrate then I am all for it. Save us taxpayers some money. However, there is still something to be said for instinct and a 'gut feeling'.

Secondly, as a society we need to start accepting that there are distinctions in sexual offenders and that not all sex offenders are a danger to children. The paranoia about sex offenders could possibly keep any of the four teachers in this instance from seeking the counseling and treatment any of them may need if they did indeed commit any of the acts for which they were accused.

Surprising to most people is that the largest group of kiddie porn producers in the United States are roaming the hallways of schools on a daily basis and there is little the schools are doing to stop it. Tech savvy teenage girls produced and distribute their productions across the web and through other electronic means moreso than any other demographic.[1] More alarming is that they number in the millions. The federal courts cannot even begin to keep up with the prosecutions. Over 99% of kiddie porn producers will never be prosecuted. Children attending high schools will continue to interact with kiddie porn producers on a daily basis even if background checks were applied to students. Many of these, being females, will go on to being school teachers or parents visiting the school. Yet, as a society we will still remain heavily dependent upon sex crime prosecutions as a means to purportedly protect our children, but the effect may be the exact opposite.

As a young man I spent a period of time in federal prison which I have long called the most important and valuable education in my life. I learned about the motivations, actions and consequences that many criminals faced. Whether it was already in me and I honed the skill or learned it while there, I became an instant judge of character. I spent most of my time in level 5 or 6 institutions including Terre Haute USP. Level 6 inmates are the most severe offenders.

Being among that type of crowd it was important to know those around me. Will this guy fight to protect me based upon some loose allegiance or shank me in the back? By the time I was released I could rather easily identify sexual aggressors [rapists], sexual facilitators, drug-dealers, violent offenders and those who just 'puffed up' but otherwise wouldn't fight. I also knew who would physically fight to defend me and thus got accepted into my association. As a 'jailhouse lawyer' I had access to case files and was able to confirm my feelings. I give you this background for perspective on what I have to say now.

Criminal background checks in school corporations are nothing more than window dressing. These are feel good measures and they work. Many people feel good about these 'protections' and the effort the schools are making to 'protect' their children. That is just the legal standard that needs to be met coincidentally. If a child is abused and the school is sued they can be assured that they have a paper trail of feel-good efforts they undertook that will convince enough jurors not to find them liable.

If you have ever worked with Venn diagrams you can plot this and see what is left. Most sex offenders who get convicted were obvious about it and do not re-offend. For some it is because of treatment to control a compulsion while for others it was simply a one-time or one-victim situation such as the future spouse/mate. Those who haven't been caught fall into two categories; 1) those who haven't been caught yet, and; 2) those who are so persuasive or skilled as to never get caught. A criminal background check can work as an effective filter. The effect it has concerns me though.

Those with prior convictions who have been counseled and now pose no threat to students along with those who may be identified and watched closely for good cause are eliminated from the teacher/visitor pool. We then have those who are so convincing, trusting and skilled at child-molesting that they will never be caught. With them are those who simply haven't been caught which is the mix of the remaining teacher/visitor pool. Thus the odds of your child interacting with an active child molester are increased by criminal background check elimination.

There are some simple solutions to protecting children that require everyone to take responsibility. The first and most effective is to teach your children about sexuality at a young age and what is appropriate. I am not saying the good touch bad touch except for the youngest with appropriate follow-up as they mature. Although I believe it is acceptable for parents to teach adolescents that touching themselves for sexual satisfaction is normal and better than molesting someone else it is still illegal under Indiana law [2] for parents to do that.

Schools should mandate that all employees having regular contact with students take an introductory class about children, sexual attraction and appropriate contact. Those who wish to take follow-up classes, either as therapeutic for themselves or to learn more about it, could do so confidentially.

Schools should also do more to ensure that children know what is appropriate and that they are encouraged to come forward if they feel something inappropriate has happened. When I was in elementary school a student may have had a bad day and let loose in a crying fit for whatever reason. It was not unusual for a teacher to set the child on her lap and provide comfort that may have ended with a kiss on the forehead. It was exactly what was needed. That teacher would likely get fired today. I seriously doubt she was getting off on some child's snot dripping down her blouse though.

The schools also need to eliminate the opportunities available for inappropriate activity rather than trying to eliminate those they feel may engage in such. It is much easier to prevent the situation than it is to establish some tool to guess who would be the offender. There should still be a human element in deciding who is appropriate. Maybe it is time to hire those who spent a long time in prison to do evaluations of potential hires.

Those who are so quick to jump up and say castrate the guy who has only been accused are the reason the schools are afraid to label someone as a sex offender. Wendy McElroy has addressed the issue of false allegations which is why it is good that these teacher were able to leave the school system in the manner they did. In one study it was found that 40% of rape accusations were false[3]

We also have those people who want someone else to take responsibility. They want a background check and other artificial methods of 'protection' because they don't want to have 'the talk' with their own child or be the one to answer "Why did you hire that person?". These are the people who allow children to be endangered and are equally to blame when a child is abused.

As a society we should not be so hung up on sex. Nearly all of us came into the world that way. Understand that offenders need treatment and that to truly protect children, opportunities, not people, need to be avoided. It is time to put people back into the equation. That may be yourself. It all starts with you and your own child and ends with those who have custody of our children during the day, administrators, making decisions. Next time a child is abused you may need look no further than yourself and the policies you supported as one of the culprits.

1] The National Campaign to Prevent Teen and Unplanned Pregnancy. 22% of female teens in a survey response indicate they have produced photos of nude or semi-nude [topless] young girls.
2] Indiana Code 35-42-4-6 makes it a crime for any person to "urge" or "advise" a child "less than sixteen (16) years of age" to engage in any "touching intended to arouse or satisfy the sexual desires of . . . the child."
3] Eugene Kanin of Purdue University

Stuart Showalter

Indiana Custodial Rights Advocates

©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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