Michelle MurphyAlexander Halpern LLC

1426 Pearl Street, Suite 420Boulder, Colorado 80302

303-449-6180

Educator/Student Relationships

Objective

I. Enable school district employees to identify and respond to incidents of educator sexual misconduct.

II. Provide an awareness as to those behaviors which increase an educator’s risk of exposure to claims of misconduct, including appropriate use of the internet, email and text messaging.

Educator Sexual Misconduct: A Synthesis of Existing Literature

2004 Report Issued by the

U.S. Department of Educationhttp://www.ed.gov/rschstat/research/pubs/misconductreview/report.pdf

Percent of Students In Grades 8 to 11 Who Have Experienced Educator Sexual Misconduct

• 9.6 % reported contact and/or noncontact educator sexual misconduct that was unwanted

• 8.7 % reported only noncontact misconduct

• 6.7 % reported only contact misconduct (some reported both types)

Percent of Student Targets by Job Title of Offender

• Teacher-18%• Coach-15%• Substitute Teacher-13%• Bus Driver-12%• Teacher’s Aide-11%• Other School Employee-10%• Security Guard-10%• Principal-6%• Counselor-5%

Sex of the Offender

• 57.2 % of the time the offender was male

• 42.8 % of the time the offender was female

Sex of the Student

• 56 % of the time the student was female

• 44 % of the time the student was male

Which Students Are Most Likely To Be Selected?

• Students estranged from their parents• Students who are unsure of themselves• Student who engage in risky behavior• Students whose parents are engaged in

risky behavior• Students who are more likely to maintain

silence

Inappropriate Relationships Do Not Happen All of A Sudden!

• Develop over a period of time• With some students it might be over a

brief period of time• Other students take more “grooming”

Grooming of A Student

• Process where an abuser – selects a student, gives the student attention and

rewards, provides the student with support and understanding

– while at the same time slowly increasing the amount of personal closeness through increased communication (text-messaging, telephone calls, MySpace/Facebook), touch and eventually sexual behavior

Grooming of A Student

• Purpose is to: – Test the child’s reaction to such behavior– Increase the level of familiarity– Gain approval from parents– Determine the child’s ability to maintain secrecy– Desensitize the child through progressive sexual

behaviors– Learn information that will discredit the child

Difficult to Determine

• Activity takes place in private• If the Student doesn’t want the relationship,

he/she might not report it because– Student does not want to get anyone in trouble

– Student just wants the conduct to stop

– Student doesn’t think anyone will believe him/her

• Who will believe a student over a 20-year employee?

Difficult to Determine

• The most problematic situation of all:

–Student is not upset by the relationship

Notice of Educator Sexual Misconduct

• Formal complaints

• Informal complaints

• Observed suspicious behaviors

• Rumors and/or anonymous reports

Watch for Red Flags

• Don’t wait until you have absolute proof (very seldom do you know absolutely)

• Watch for “conduct that is not indicative of a professional teacher/student relationship”

• While not all educator misconduct involves a sexual relationship, inappropriate relationships that could lead to further involvement must not be permitted

Watch for Red Flags

• Change in student’s behavior– Inappropriate sexual behavior, late arrivals to

class, changes in personality, increased time with one school employee

• Rumors about a student and a teacher• Behavior of the adult

– Close personal relationships with students, time alone with students, time before and after school with students, time in private spaces with students, flirtatious behavior with students, off-color remarks in class

– Text-messaging with students, participation in MySpace/Facebook with students

Watch for Red Flags

• Behavior becomes “apparent” after misconduct is revealed

• There will be many “missed opportunities” because:– People are not sure about the conduct they

observed– People don’t want to wrongly accuse someone

for fear of a lawsuit– People don’t want to become involved

Duty to Report Sexual Involvement Between School Employee and Student

Colo. Rev. Stat. §19-3-304: School district employees and officials who have reasonable cause to know or suspect that a child is being subjected to abuse or neglect shall immediately report or cause a report to be made of such fact to the county department of social services or local law enforcement. Abuse includes unlawful sexual behavior.

Duty to Report Sexual Involvement Between School Employee and Student

Colo. Rev. Stat. §22-32-109.7: If an employee of a school district is dismissed or resigns as a result of an allegation of unlawful behavior involving a child, including unlawful sexual behavior, which is supported by a preponderance of the evidence, within then business days after the dismissal or resignation, the board of education shall notify the department of education. A public school or charter school shall not enter into a settlement agreement that would restrict the school from sharing any relevant information related to the crime with the department, another school district or charter school pertaining to the incident upon which the dismissal or resignation is based.

District Liability

A student may recover from a school district for sexual harassment by an employee only of the student can establish that an appropriate person had actual notice of and was deliberately indifferent to the misconduct.

Actual Notice

• Must be reported to a person with authority to take corrective action.

• Notice as to harassment of other students may provide the requisite notice.

• Requires more than a simple report of inappropriate conduct.

• Schools must have actual notice of a substantial risk of abuse to students.

• Prior instances need not be clearly credible because at some point a supervisory official knows that an employee poses a substantial risk.

Deliberate Indifference

• District will be liable where response is “clearly unreasonable in light of the circumstances.”

• Must take “timely and reasonable measures” to end the harassment.

• Liability has been imposed where (i) Districts fail to investigate and/or inform law enforcement or student’s parents; (ii) fails to discipline offender; and/or (iii) fails to take additional steps if harassment continues.

• Not required to take any particular disciplinary action;

• Victims do not have the right to seek particular remedial demands.

How Does A School District Protect Itself?

• Have a policy that addresses sexual harassment (student-on-student, employee-on-student, employee-on-employee) and establishes procedures for one to follow if subjected to sexual harassment

• Designate an employee to coordinate the school’s responsibilities

• Provide staff in-service• Orientation for all students• Copy of policies and procedures given to

all students and employees

How Does A School District Protect Itself?

• Assurance that students who make complaints or provide information will be protected against retaliation

• Assurance that the school will protect the confidentiality of harassment complaints to the extent possible

• Assurance that the school will take immediate and appropriate corrective action when it determines that harassment has occurred

Preventing Sexual Harassment in Schools

1. Never use sexually explicit language or tell sexually explicit/off color jokes in the presence of students.

2. Never display sexually explicit or pornographic pictures/materials on school property and never show such materials to students.

3. Avoid engaging in excessively personal conversations, both in person and on the phone, with students.

Preventing Sexual Harassment in Schools

4. Avoid sending personal letters, cards or gifts to students and don’t engage in text-messaging or MySpace/Facebook communication with students.

5. Avoid commenting on the physical appearance, including manner of dress and specific physical attributes of students. Educators should always dress professionally.

6. Avoid to the greatest extent possible physical contact with or touching of students.

Preventing Sexual Harassment in Schools

7. Avoid giving students rides home alone or even in groups where eventually only one student will remain in the car alone with the adult.

8. Avoid off-school property, one-on-one meetings alone with students, especially in the home of the student or the adult.

Preventing Sexual Harassment in Schools

9. Never plan or take unchaperoned overnight school trips with students and, on properly chaperoned trips, exercise the highest degree of caution and propriety regarding interaction with students.

10. Never date students under any circumstances. Issues of power differential, consent and credibility make such relationships untenable within any level of educational institution.

Claim of Harassment

• Promptly investigate

• Take immediate and appropriate corrective action

Q&A