Transcript Legal, Ethical, and Professional Issues In Teaching Dr. Erma Jean Sims, J.D. Literacy Studies and Elementary Education Department School of Education Light Bridge Project Sonoma State.

Legal, Ethical, and Professional Issues
In Teaching
Dr. Erma Jean Sims, J.D.
Literacy Studies and Elementary Education Department
School of Education
Light Bridge Project
Sonoma State University
Legal Seminar Topics Include:
ILLEGAL DISCRIMINATION
SEXUAL HARASSMENT
MANDATORY CHILD ABUSE
REPORTING
SIGNIFICANCE
It is important that teachers know and
understand their professional, legal and
ethical obligations within an educational
setting (TPE 12).
ILLEGAL
DISCRIMINATION
California Code of Regulations
80338 Discrimination Prohibited.
A certificated person shall not, without good cause, in the
course and scope of his or her certificated employment and
solely because of race, color, creed, gender, national
origin, handicapping condition or sexual orientation, refuse
or fail to perform certificated services for any person.
California Education Code
Section 200
It is the policy of the State of California to afford
all persons in public schools, regardless of their
sex, ethnic group identification, race, national
origin, religion, mental or physical disability, or
regardless of any actual or perceived
characteristic that is contained in the definition of
hate crimes set forth in Section 422.55 of the Penal
Code, equal rights and opportunities in the
educational institutions of the state.
California Penal Code
Section 422.55.
For purposes of this title, and for purposes of all other state law unless an
explicit provision of law or the context clearly requires a different meaning,
the following shall apply:
a)
"Hate crime" means a criminal act committed, in whole or in part, because
of one or more of the following actual or perceived characteristics of the
victim:
1)
2)
3)
4)
5)
6)
7)
Disability
Gender
Nationality
Race or ethnicity.
Religion
Sexual orientation
Association with a person or group with one or more of these actual or
perceived characteristics
Scenario: Illegal Discrimination
Ms. Olsen is very uncomfortable with second language learners. She has
seated all of the Spanish speaking students at table 5 in the back of the
classroom. She has admonished them from speaking Spanish in her
classroom.
Miguel complains to his parents that his teacher is rude to him and makes
snide remarks about him and his culture in front of his classmates.
Ms. Olsen sends Miguel to the office for getting a drink of water without
permission. While there, Miguel tells the principal he is being mistreated
by Ms. Olsen.
The principal, Mr. White, disregards Miguel’s comments and admonishes
him to stop making trouble in the classroom and then sends him back to
his class.
Questions for Discussion
1. Is Miguel being discriminated against by his
teacher, Ms. Olsen?
2. Does the principal have a responsibility to
investigate Miguel’s complaints about Ms. Olsen?
3. What rights does Miguel have to protest
discrimination based on race/ethnicity and
language?
Scenario: Sexual Orientation
Matthew, a high school junior, has shoulder length blonde hair
and frequently wears pink and purple clothes and talks in a
high-pitched voice.
Mr. Jones, a teacher, has heard many students at the school
routinely refer to Matthew as a “faggot” in the hallways and in
his classroom. And recently, he heard rumors that Matthew has
AIDS.
The Winter Ball is coming up and everyone is looking for
dates. Matthew asks Mr. Jones if he thinks it would be a
problem if he brought his boyfriend to the dance.
Mr. Jones tells Matthew “you should not make yourself more
of a target of ridicule and teasing, why don’t you ask Susie to
the dance? She’s a nice girl and she is interested in you”.
Questions for Discussion
1.
Does calling Matthew a “faggot” constitute illegal
discrimination? If so, what type?
2.
Does Mr. Jones have a responsibility to address the
name calling and rumors about Matthew? If so,
how?
3.
Did Mr. Jones respond to Matthew’s question
regarding the Winter Ball dance in a way that would
prevent him from being accused of illegal
discrimination?
SCENARIO: RELIGION
Lelia Ahmad is a fifth grader at Heart Elementary School. She
recently arrived in the United States from Palestine. Lelia is
very religious and a practicing Muslim. As part of her religious
duties, she must pray 5 times a day one of which is at Noon,
the same time that all 5th grade classes at Heart Elementary
School have recess.
Lelia asks her teacher, Ms. Hartless, if she can pray inside the
classroom since the other students will be at recess.
Lelia tells her teacher she’d feel safer praying in the classroom
because some of the students have been calling her a
“Terrorist” and pushing and shoving her at recess.
Questions for Discussion
1.
Are students allowed to pray at school?
2.
Should Ms. Hartless grant Lelia’s request to
pray inside the classroom at recess?
3.
Does calling a student a “Terrorist” constitute
illegal discrimination?
4.
What responsibility does Ms. Hartless have to
address the name calling and bullying that Lelia
has shared with her?
Sexual Harassment Definition
California Education Code
Section 212.5
Sexual harassment means unwelcome sexual advances, requests
for sexual favors, and other verbal, visual, or physical conduct of
a sexual nature, made by someone from or in the work or
educational setting.
Such behavior is illegal if it creates a hostile or intimidating
environment, if it interferes with an individual’s work or school
performance, or if acceptance of the harasser’s behavior is made
a condition of employment or academic achievement.
California Code of Regulations
80377 - Sexual Harassment and Retaliation Prohibited
No certificated person shall directly or
indirectly use or threaten to use their authority
or influence to discourage, restrain, interfere
with, coerce, or discriminate against any
subordinate or any certificated person who in
good faith reports sexual harassment. This
provision specifically prohibits retaliation for
reporting or disclosing incidents of sexual
harassment.
Sexual Harassment
Typical Examples:
•Sexually oriented gestures, jokes, remarks that
are unwelcome
Example: a peer who repeatedly tells sexual jokes, post pornographic photos
or makes unwelcome sexual innuendos to another peer
•Repeated and unwanted sexual advances
•Touching or other unwelcome bodily contact
•Physical intimidation
Example: A person in position of authority who uses their power to coerce
another person to accept unwanted sexual attention.
Examples of other types of conduct that are
prohibited in many school districts and which may
constitute sexual harassment include:
Unwelcome leering, sexual flirtations or propositions.
Unwelcome sexual slurs, epithets, threats, verbal abuse,
derogatory comments or
sexually degrading descriptions.
Graphic verbal comments about an individual’s body, or overly
personal conversation.
Sexual jokes, stories, drawings, pictures, or gestures.
Sexual Harassment Examples Continued
 Spreading sexual rumors.
 Teasing or sexual remarks about students enrolled in a predominantly
single-sex class.
 Touching an individual's body or clothes in a sexual way.
 Purposefully limiting a student's access to educational tools.
 Cornering or blocking of normal movements.
 Displaying sexually suggestive objects in the educational environment.
 Any act of retaliation against an individual who reports a violation of
the district's sexual harassment policy or who participates in the
investigation of a sexual harassment complaint.
Sexual Harassment Reporting Procedures:
Certificated School Personnel Responsibilities
It is the teacher’s responsibility to take appropriate actions to
prevent and report incidents of sexual harassment to their
school site administration. Be sure to consult and follow your
school district’s policies and procedures on sexual harassment.
Suggested Reporting Procedures Guidelines
1. Keep accurate and detailed records of the sexual harassment
incident.
2. Report sexual harassment to the appropriate person at your
school site.
3. Follow your school district’s policies and procedures on sexual
harassment reporting.
Sexual Harassment
Scenario 1: Two Fifth Grade Students
• A fifth grade student, Sarah, is complaining about her
classmate Bobby. On several separate occasions Bobby
approaches Sarah and makes comments such as “I want to get
in bed with you” and “I want to feel your boobs”.
• In another instance, Bobby puts a door stop in his pants rubs
his body against Sarah in the hallway.
• Sarah reports these incidents, at time of occurrence, to her
teacher and her mother. She also informs the principal.
Questions for Discussion
1. Do Bobby’s actions constitute sexual harassment?
2. What actions can the teacher take to stop the sexual
harassment of Sarah?
3. Does the teacher have a responsibility to report
Bobby’s conduct and if so to whom?
Court Decision in Davis Case
Based on 1999 Supreme Court Case: Davis, as next friend of
LaShonda D v. Monroe County Board of Education et al.
Institutions covered by Title IX may be financially liable for sexual
harassment of students by other students if:
1)
a school official was aware of the misconduct and showing deliberate
indifference failed to take proper remedial action and
2)
the victim must demonstrate the harassment was “so severe, pervasive
and objectively offensive” that it effectively denied the victim access to
education opportunities or benefits provided by the school.
Sexual Harassment
Scenario 2: Teacher to Student
• Mr. Smith is a high school teacher. He has a student in his class named
Innocence whom he has known since she was in elementary school. Due to
school budget cuts to the Gifted and Talented Program which Innocence
participated in, Mr. Smith offers one-on-one instruction in advanced coursework
to Innocence, with school district approval.
• Mr. Smith frequently singles Innocence out for flattery and numerous
suggestive comments both in private and in front of other students. Innocence
believes this attention is due to her mentor/mentee relationship she has with her
teacher.
• Under the pretense of instruction, Mr. Smith visits Innocence in her home
while her parents are away. He takes this opportunity to kiss and fondles
Innocence. Mr. Smith begins a sexual relationship with Innocence, which
includes sexual intercourse.
Questions for Discussion
1. What steps as a teacher would you take, if Innocence
informed you of Mr. Smith’s behavior towards her?
2. If a school employee discovers the misconduct of a
teacher, what reporting responsibilities does the
employee have?
3. Can the school district be held financially liable for
Mr. Smith’s conduct?
Court Decision in Gebser Case
Based on 1998 Supreme Court Case: Gebser v. Lago
Vista Independent School District a student who is
sexually harassed by a teacher may only recover damages from a
school district if an official with authority over the teacher knew
about the misconduct and was “deliberately indifferent”
Mandatory Reporting of Abuse
Definition of Child Abuse:
1. A physical injury inflicted, not by accident, on a child by
another person
2. Sexual abuse of a child
3. Willful cruelty or unjustifiable punishment of a child, or
willfully inflicting unjustifiable physical pain or mental
suffering, or failure to safeguard a child from these injuries
when the child is under a person’s care or custody
4. Unlawful corporal punishment or injury resulting in a
traumatic condition
5. Neglect of a child or abuse in out-of-home care
California Penal Code
Section 11166
Any child care custodian, medical practitioner, nonmedical practitioner, or employee of a child protective
agency who has knowledge of or observes a child in his or
her professional capacity or within the scope of his or her
employment whom he or she knows or reasonably suspects
has been the victim of child abuse to report the known or
suspected instance of child abuse to a child protective
agency immediately or as soon as practically possible by
telephone and to prepare and send a written report thereof
within 36 hours of receiving the information concerning
the incident.
Mandated Reporters of Child Abuse
“Mandated Reporters” include virtually all school
employees. The following school personnel are required
to report:
Teachers, administrators, supervisors of child welfare
and attendance, certificated student personnel
employees, employees of a child care institution,
headstart teachers, school psychologists, licensed
nurses, counselors, presenters of child abuse
prevention programs and those instructional aides or
other classified employees trained in child abuse
reporting.
Duty to Report
A mandated reporter shall make a report to a child protected agency,
whenever the mandated reporter, in his or her professional capacity or within
the scope of his/her employment, has knowledge of or observes a child whom
they know or reasonably suspect has been the victim of child abuse. The
mandated reporter shall make a report to the agency immediately or as soon as
practically possible by telephone, and shall prepare and send a written report
thereof within 36 hours of receiving the information concerning the incident.
Definitions:
“Reasonable Suspicion” means that it is objectively reasonable for a person to
entertain such a suspicion, based upon facts that could cause a reasonable person
in a like position, drawing when appropriate on his/her training and experience, to
suspect child abuse.
“Child Protective Agencies” are law enforcement and child protective services
responsible for investigating child abuse reports, including the local police or
sheriff department, county welfare or juvenile probation department and child
protective services.
Reporting Procedures:
To report known or suspected child abuse, any employee shall report by telephone
to the local child protective agency. The telephone report must be made
immediately, or as soon as practically possible, upon suspicion. This report will
include:
1. The name of the person making the report
2. The name of the child
3. The present location of the child.
4. The nature and extent of any injury
5. Any other information requested by the child protective agency,
including the information that led the mandated reporter to suspect
child abuse.
When the verbal report is made, the mandated reporter shall note the name of the
official contacted, the date and time contacted, and any instructions or advice
received.
Reporting Procedures Cont.
Within 36 hours of making the telephone report, the mandated reporter will
complete and mail a written report which must include a completed Department of
Justice form (DOJ SS 8572) to the local child protective agency. Mandated reporters
may obtain copies of DOJ form from the district or local child protective agency.
Instructions are included on the form and site administrators may help in completing
and mailing form. However, the mandated reporter is personally responsible for
ensuring the written report is correctly filed.
Employees reporting child abuse to a child protective agency are encouraged to
notify the site administrator as soon as possible after the initial verbal report by
telephone. When notified, the site administrator will inform the Superintendent.
Notified administrators shall provide the mandated reporter with any assistance
necessary to ensure that reporting procedures are carried out in accordance with law
and district regulations. The principal may assist in completing and filling these forms
at the mandated reporter’s request.
If the mandated reporter does not disclose his/her identity to a district
administrator, he/she shall at least provide or mail a copy of the written report to the
district without his/her signature or name.
Legal Responsibility and Liability
1. Mandated reporters have absolute immunity. School employees required to
report are not civilly or criminally liable for filing a required or authorized
report of known or suspected child abuse.
2. If a mandated reporter fails to report an instance of child abuse he/she knows to
exist or reasonably should know to exist, he/she is guilty of a misdemeanor
punishable by confinement in jail for up to six months, a fine of up to $1000,
or both. The mandated reporter may also be held civilly liable for damages
resulting from any injury to the child after a failure to report.
3. When two or more persons who are required to report have joint knowledge of
a suspected instance of child abuse, and when they so agree, the telephone
report may be made by either of them and a single report made and signed by
that person. However, if any person knows or should know that the designated
person failed to make the report, that person then has a duty to do so.
4. The duty to report child abuse is an individual duty and no supervisor or
administrator may impede or inhibit such reporting duties. Furthermore, no
person making such a report shall be subject to any sanction.
When School Employees
are Accused of Child Abuse…
Regardless of who child abusers may be, the major responsibility of mandated
reporters are to (1) identify incidents of suspected child abuse, and (2) comply
with laws requiring the reporting of suspected child abuse to the proper authorities.
Determining whether or not the suspected abuse actually occurred is not the
responsibility of the school employee. Such determination and follow-up
investigation will be made by a child protective agency.
Pending the outcome of an investigation by a child protective agency and
before formal charges are filed, the employees may be subject to reassignment or a
paid leave of absence.
Upon filing formal charges or upon conviction, the district may take
disciplinary action in accordance with the law, district policies, regulations and/or
collective bargaining agreements. The Superintendent or designee shall seek legal
counsel in connection with either the suspension or dismissal of the employee.
Scenario: Child Abuse
For the past couple of weeks Katrina has come in with
several bruises on her arms.
Her teacher, Mr. Chang has observed that Katrina is
moody and somewhat withdrawn. Frequently, she is
observed playing very roughly with dolls and other
classmates.
On one occasion Katrina came to school with a black eye.
Mr. Chang suspects child abuse, but when he questions
Katrina, she said “I fell down on the way to school”.
Questions for Discussion
1.
Should Mr. Chang contact Katrina’s
parents about his suspicions of child
abuse?
2.
Does Mr. Chang have a responsibility
to report his suspicions of child abuse
and if so, to whom?
Frequently Asked Questions
•
Affection and hugs
•
After school activities with teacher
•
Pornographic sites
•
Discipline Gone Too Far?
•
Pet Names
Hugs and Affection
I am a lover of giving hugs, especially to those who do
not get enough at home. I feel that a hug is a positive
start to the day and it validates each and everyone of my
students.
Legally, what kind of physical interaction is
acceptable between teacher and student?
Does the gender or sexual orientation of the
teacher matter?
Pet Names
Can a classroom teacher refer to his/her
students as “honey” and “sweetie” without
being accused of sexual harassment?
After School Activities with Teacher
I know a male teacher who is taking girls shopping for high
heel shoes after school. I suspect there might be more to this
situation.
What do you do when you know (or sense) that a
teacher is doing something compromising?
PORNOGRAPHIC SITES
Two girls were looking at pornographic websites on a
computer. After telling the students to get off website, the girls
started laughing. One of the girls made a comment to the
teacher about her friend’s large breasts and said, “Wouldn’t
you like to touch them?”
Does the teacher have a responsibility to inform the
school administrator about the incident?
Could the students’ comments to the teacher be
considered sexual harassment?
Discipline Gone Too Far?
Jimmy is a Special Education student in Ms. Ruff’s class. He frequently wanders
around the classroom and disrupts other students. The Instructional Assistant has
observed Ms. Ruff dragging Jimmy by his arm back to his seat. When Jimmy
refuses to sit down, Ms. Ruff has on several occasions grabbed Jimmy’s shoulders
and forcibly sits him down in his seat. Jimmy then shows the Instructional
Assistant a bruise on his arm.
Does Ms. Ruff’s actions constitute child abuse?
Does the Instructional Assistant have a legal responsibility to
report Ms. Ruff’s actions?
Should the Instructional Assistant fear retaliation from Ms. Ruff?
CONCLUSION
As teachers, it is important to understand your
legal rights and responsibilities so you can
protect yourself and your school district from
legal liabilities. Knowing your rights and
responsibilities will help to ensure that your
classroom is a safe place where learning can
occur in an atmosphere conducive to the
learning process.
Legal References: Illegal Discrimination
California Education Code
Section 200 illegal discrimination
California Code of Regulations
80338 Discrimination, prohibited.
California Penal Code
Section 422.55 illegal discrimination
Website Resources
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www.aclu.org/StudentsRights/StudentsRights.cfm?ID=13147&c=155
www.aclunc.org/students/guide/disc.html
www.glsen.org/templates/student/record.html?section=105&record=525
www.usdoj.gov/crt/cor/coord/titleixstat.htm
bailiwick.lib.uiowa.edu/ge/
www.edc.org/WomensEquity/about.htm
www.aclu.org/StudentsRights/StudentsRights.cfm?ID=10356&c=155
www.aclu.org/StudentsRights/StudentsRights.cfm?ID=10299&c=155
www.aclu.org/StudentsRights/StudentsRights.cfm?ID=8735&c=155
http://hardtruthaboutaids.com/Misc/discrimination_in_public_schools.htm
http://www.aclu.org/getequal/timeline.htm#2000s
Legal References: Sexual Harassment
California Education Code
Section 212.5 Sexual harassment, defined
Section 230 Particular Practices prohibited
California Code of Regulations
CCR 80337
Website Resources
http://www.de.psu.edu/harassment/legal/
http://encarta.msn.com/encyclopedia_761579949/Sexual_Harassment.html
http://www.now.org/issues/harass/gebser.html
http://supct.law.cornell.edu/supct/html/97-843.ZS.html
http://www.alllaw.com/articles/education/article1/asp
http://www.wcwonline.org/harassment/resources.html
http://www.wgby.org/edu/flirt/fhmain.html
Legal References: Child Abuse
California Education Code
Section 33308.1 - Guidelines on procedure for filing child abuse complaints
Section 44690-44691 - Staff Development in the detection of child abuse and complaint
Section 48906 - Notification when student released to peace officer
California Penal Code
Section 273a Willful cruelty or unjustifiable punishment of child; endangering life or health
Section 11164-11174.3 Child Abuse and Neglect Reporting Act
Section 11165-11165.15 Definitions relating to child abuse
Section 11166-11170 Reporting known or suspected cases of child abuse
Section 11172 Immunity from liability
Website Resources
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http://www.sonoma.edu/cihs/mr/docs/traingen.html
http://www.accapc.com/mandated.cfm
http://www.co.sanmateo.ca.us/hsa.dir/childabusecouncil/facts.html
http://www.ebac.org/programs/school/cap.asp
http://www.smith-lawfirm.com/mandatory_reporting.htm
http://www.smith-lawfirm.com/teachers.htm
http://www.smith-lawfirm.com/Connsacs_brochure.html