Bills to Crack Down on Educators’ Misconduct with Students Need Careful Drafting

SB 7 by Sen. Paul Bettencourt (R-Houston) and SB 653 by Sen. Van Taylor (R-Plano) are bills that would strengthen and expand the reach of penalties for inappropriate relationships maintained by educators and other education employees with student in Texas public schools. The bills have been inspired by recent news reports of increased incidence of improper relationships between educators with students—resulting in the opening of 222 cases last year by the State Board for Educator Certification. A particular target of the bills is the failure by school administrators in some cases to disclose allegations or findings of such misconduct when a former employee seeks a new job in another district.

In testimony before the Senate Education Committee on Thursday, February 23, Texas AFT gave the bills mixed reviews, lauding their purpose but raising some questions about potentially overbroad language. Texas AFT’s testimony echoed concerns raised by Sen. Royce West (D-Dallas), who pressed SBEC witnesses on the seeming vagueness of language asserting that educators could be liable for failing to disclose what they “should have known” about another educator’s misconduct. West was incredulous when a member of the SBEC legal staff defended the “value of vagueness” because it would encourage more disclosure.

Here’s what Texas AFT legislative counsel Patty Quinzi said about both bills, which were left pending but are likely to win committee approval in revised form at some point soon:

We agree with the authors that the misconduct by educators these bills would address is intolerable and merits severe sanctions. We want to ensure the sanctions are well thought out and do not hit anybody they are not meant to hit.

The new training requirement on appropriate educator-student relationships will be helpful and is something educators, particularly new ones, need. We also support the requirement for schools to implement local policies on one-on-one electronic communications, which would also allow educators to opt out of providing email and cell-phone information.

We do have some questions about provisions in both bills requiring sanctions for an employee who “assists” and “knows or should have known” another employee “engaged in misconduct.” We think this language does not provide clear notice of what is expected.

How can an employee be held to a standard of “should have known” if the other employee has not been investigated, indicted, or charged with a crime against a child? Is an employee expected to accept gossip or innuendo about another educator as fact? What about a comment on Twitter? Facebook? Snapchat? If an educator has not been reported or investigated, how is another employee in a position that they “should have known”? Shouldn’t some standard of actual knowledge be set for this offense?

Regarding provisions on the investigation records of the board included in both bills, we welcome the language in the committee substitute for SB 7, which allows all investigation records of the board to be used in a disciplinary hearing “if admissible under the rules of evidence.” This language is more detailed than the language in a similar section in SB 653, which would allow the admission of any written statements from an investigation even if the statements contain hearsay or irrelevant information not admissible under the rules of evidence.

In section 2.12 of SB 653, there is a procedure for temporarily suspending certification of an educator if a majority of the board determines the educator poses an “imminent threat to the safety and welfare of students, educators, or school personnel.” A pre-deprivation (deprivation of property interest, which teachers have in their licenses) hearing is constitutional, provided that there is notice and an adequate post-deprivation hearing and appropriate remedies. However, the U.S. Supreme Court (Cleveland Board of Education v. Loudermill) requires pre-deprivation due process to include both notice and an opportunity to respond. SB 653 provides for notice, but it does not provide the affected educator with an opportunity to respond before the educator’s certification is suspended pending the preliminary hearing.

An employer may suspend an employee without pay because if the employee wins at the post-deprivation hearing, the employee is entitled to reinstatement and back pay. Suspension of certification is a different matter and there is no adequate remedy.

Regarding the revocation of public pensions in SB 653, rather than attacking pension entitlements as such, we think a more appropriate way to send a strong message to parents and the public that serious educator misconduct will not be tolerated is through the penal code by increasing criminal penalties for those convicted. An appropriate alternative would be to suspend a portion of the employee’s pension sufficient to cover court fines, fees, and any court-ordered restitution.