Teachers and the Law: Basic Rights and Duties of Educators

Magazine Issue
Spring 2017
Read Time: 19 minutes

What are my responsibilities to report suspected child abuse?

State statutes on who is a mandated reporter of child abuse vary. There are states in which only select classes of individuals are mandated with the duty to report suspected child abuse. Such classes often include law enforcement officials, medical personnel, and educators. In other states, such as Utah, all adults are mandated reporters of child abuse. This imposes the duty on mandated reporters to report suspected conditions likely to lead to child abuse or neglect, which can also include psychological abuse.

Teachers should not wait to find clear evidence of physical injury before asking themselves whether they should visit with child welfare services or other agencies. The intent of these statutes is to encourage reporting and then let agencies determine whether the report has merit or not. Reporting in good faith, even if erroneously, is almost always protected by statute from legal repercussions for the reporting educator or person, even if the report is mistaken but made in good faith.

Failure to report suspected child abuse may invoke criminal penalties on mandated reporters. Most such statutes require that to be protected as a mandated reporter, a teacher must report to the nearest office of law enforcement or official agency of child protective services in the state. These agencies go by various names in different states. When deciding whether to report to the police or to a state agency, it may be preferable to report to the agency charged with protecting children because these agencies are often given a statutory duty to investigate such reports, whereas it may be discretionary for law enforcement agencies to pursue an investigation.

Reporting to the school counselor or to the principal alone usually does not protect the mandated reporter. It is wise to counsel with such professionals while developing your own suspicion of child abuse. However, protection from failure to report and its attendant legal penalties is usually only provided when reporting to law enforcement or the child protective services agency of the state.

There are some statutes that require suspicions that a school employee is abusing a child be reported to the school principal. The attendant penalty for failure to report focuses on the potential for professional discipline, not criminal penalties. Best practice is probably to counsel with the principal, and then if your suspicions continue after that report or conversation, also report to law enforcement or child protective services.

As a teacher, how do I protect myself from false accusations of child abuse or pedophilia?

Really, an attendant question would be “What are the behaviors that can sometimes be associated with pedophilia?” It is possible that during an educational career a colleague’s behavior may give you pause. From my experience, which covers some years, the associated behaviors of those who are accused of sexual impropriety with students fall into at least three major categories discussed briefly below. Avoiding these behaviors, in my opinion, offers the best defense against a false accusation being leveled against an innocent educator, and noting such behaviors in a colleague may invoke a duty on you to report if you suspect conditions likely to lead to child abuse.

  • Avoid regular and extended privacy with minor students, especially one-on-one. This is why we often have windows in doors of classrooms: to deny this privacy while allowing for some confidentiality and a quiet learning environment. Meet with students and spend time with them in the light of day and in open settings. I personally never have my office door completely closed at the university when I am with someone of the opposite sex or if I am ever with a minor. Let your colleagues know that this and/or other open practices are your constant habit and professional practice.
  • Maintain adult boundaries. Do not discuss dating or the student’s private life too extensively nor give too sympathetic an ear in such discussions, including relatively open discussions of their families and their relationships with their parents.
  • Don’t be misunderstood in terms of physical boundaries. While it is true that just receiving a hug from a young student isn’t necessarily problematic, especially if it is in group settings, it is good to recognize that pedophiles are known to “groom” victims. This usually entails beginning with apparently inoffensive and appropriate touching that grows in frequency and intensity. Ensure that it is clear to all that your behavior does not mirror such behavior. Also, making sure that you are not alone regularly with students in a setting that affords privacy will help reinforce the positive message you wish to convey.

What about student speech? How far can students’ speech be regulated? Do I have to put up with uncivil, indecent, or angry speech in order to protect students’ speech rights and my own rights as a teacher, balanced with the school’s right or duty to operate effectively?

Student speech is protected and regulated a bit differently from employee speech. Again, merely as a general overview, students do have the right of free speech in a public-school setting under the First Amendment. This was established back in the 1960s in this Supreme Court statement: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” As a result of this decision, and in harmony with subsequent decisions, courts have generally held that you can’t restrict student speech based on an “undifferentiated fear” of disruption or problems from the speech. There must be an actual material and substantial disruption of the educational day and process, or there must be a robust reason to predict that there will be a material and substantial disruption.

However, in the 1980s, as a gloss on this reasoning, the Supreme Court held that a school can require that speech in the school setting fit the norms of civility for public discourse, and schools and teachers can insist that student speech not be hostile, uncivil, suggestive, or indecent. In other words, teachers do not have to put up with bad language in their classrooms and in other parts of the school setting and process. The court found that this was part of the educational function of the school: to teach and model civility and appropriate communication standards that students will encounter in the adult world. Such discipline and enforcement does not violate minors’ First Amendment rights in public school K–12 settings as long as no particular political or other appropriately stated—and age-appropriately discussed—viewpoint is repressed merely because of its viewpoint.

Another step that teachers and those engaged in pro-scribing student conduct must engage in is determining if a communication by a student is an “actual threat.” Regularly, students affirm that their speech—perceived as threatening, bullying, or hateful—was meant to be humorous. This can be a significant challenge when one considers the edgy types of “humorous” speech students are exposed to in media outlets, in presidential campaigns, and on TV programs. Generally, because of concerns regarding terroristic threats and state and district policies regarding bullying and cyberbullying, schools and teachers tend to err on the side of caution and take very seriously any speech that can reasonably be seen as threaten-ing, bullying, or inciting violence.

Unfortunately, in the cyber world speech is often stripped of context, vocal inflection, or other cues that help those receiving messages in person to detect humor. Parents and students will need to learn to be careful with forms of humor and settings for humor that could reasonably be misunderstood, because teachers and educators have wide latitude to discipline for such speech.

In 1988 the U.S. Supreme Court held that the school can disallow, censor, or edit speech that could reasonably be seen as “bearing the imprimatur” of the school (giving official approval/representing the school) as long as such speech regulation or suppression is based on a legitimate pedagogical purpose. Thus teachers and schools in most states can censor, disallow, limit, or edit student speech in the school newspaper, with the notable exception of at least Arkansas, California, Colorado, Iowa, Kansas, Massachusetts, and North Dakota—states that have provided additional protections for high school newspapers from administrative censorship.

In most states, however, school newspapers, the choice of drama productions, and—I would submit—even posters hung in visible places in the school can be censored or regulated if there is a legitimate pedagogical purpose and the speech could reasonably be seen as bearing the imprimatur of the school. The speech need only be likely to be perceived as speech of the school itself. It would clearly be a legitimate pedagogical purpose to censor speech that is indecent, that refers in a positive way to illegal drugs or alcohol consumption by minors, or that could be perceived—or misperceived—as racially discriminatory.

What are the limits of my speech rights as a teacher? Can I give my opinion regarding evolution, my favorite sports team, the next general election, or rap music?

Teachers are state employees, but they are also generally U.S. citizens, and if such employees are not citizens, their speech rights are still probably protected under the Fourteenth Amendment since they are still “persons” within the jurisdiction of the United States.

What are the limits of that protected speech? There is something known as the Pickering Balance from a 1968 United States Supreme Court case. This basically says that as an employee of the state, you have not totally lost your right to speak without fear of employment retaliation when speaking on a matter of public concern. However, the other side of the balance is that not all things you might wish to say about your public employer are matters of public concern. Even though your employer is a public school—and public schools are important in our democracy—you are not free to speak directly or rudely about individuals or matters germane only to the operation of the school unless you can tie it to a matter of public concern upon which any citizen ought to be allowed to comment.

The other side of the Pickering Balance, though, is that the school, as a public entity, gets to run reasonably efficiently as a business entity, even though it is a state entity, and does not have to allow all types of speech from employees without any consequence. So, in general, you can speak in the papers and in the lunchroom, and to some extent in the classroom, on your belief that the school board should seek a bond to build a new school or should not close a neighborhood school, etc. You can speak in public venues on whether you think the county should develop a park trail system, etc. These are clearly matters of public concern. However, aggressively telling your principal that you believe she or he is a bad person because you have not been provided with a preparation period at a certain time is not necessarily a protected matter of public concern, even if spoken in public.

What about “zero-tolerance laws” used to discipline students in public schools? Do I have to be a part of expelling a student whose parent unknowingly leaves a butter knife in the child’s lunch brought from home?

So-called “zero-tolerance laws” are intended to remove discretion from educators in dealing with some narrow areas of student conduct. Such laws became widespread in the 1990s because of a federal law that required all schools to suspend for one year any student who, for example, brought a gun to school. If the law is applied as intended, educators may have to help administrators apply these laws when a student possesses on school grounds, for whatever reason, an object fitting the definitions of the statute, often included in school district regulations with benign names, such as the district Safe School Policy. Teachers should become familiar with their district’s policy and definitions within the policy of items and behaviors that may be punished with a lengthy expulsion and those that must, mandatorily, be punished with a lengthy expulsion.

My experience is that most of the educators I deal with are loath to strictly apply the law to unreasonably punish a child or burden a child’s future by applying zero tolerance in instances that do not fit with their own discretionary ideas and values. It is hard not to applaud such shielding of kids from the impact of a relatively rigid and procrustean law or policy. However, teachers and administrators who feel it is a good idea to take the butter knife (actual case) or the tiny charm bracelet pistol (another actual case) or who remind the student who had been duck hunting and had left a shotgun in the gun rack of his pickup in the parking lot not to do it again (yet another actual case) rather than see the student expelled for an inordinately long time are the ones bearing the risk should such a student actually do harm with the object or weapon, or facsimile of a weapon, later. This is part of the reason that the American Bar Association has called for the repeal of zero-tolerance laws in schools, to return discretion to educators based on the facts of the case and the nature of the student’s culpability or danger to the school environment. So far, legislators have not responded by changing zero-tolerance statutes fundamentally in most instances.

At the very least you should know your district policy and know that a shielding educator—if a student does violence with the item that should have caused heavy penalties or does act violently after the behavior you let slide—may be in some legal jeopardy, especially if it becomes known that the educator was aware of the item or behavior. Educators who do not agree with these zero-tolerance laws and who do not wish to incur any risk to protect students would do well to obey such laws strictly for the present while focusing their energy on having such laws repealed, limited, or clarified.

For additional information, check out the BYU Education and Law Journal at digitalcommons.law.byu.edu/elj. This is a peer-reviewed law review that is a joint production of the Department of Educational Leadership and Foundations in the McKay School of Education and the J. Reuben Clark Law School. It is a highly respected journal with regular submissions from the most notable experts in the field. In many ways it is for specialists, but many articles are reasonably accessible to a teacher audience. If there are questions regarding the journal or submissions, Scott Ferrin is the faculty advisor to the journal.

 

Written by Scott Ellis Ferrin, JD, EDD

Photography by Bradley Slade