Closing Loophole in Law Protecting Students Against Sexual Predators

Carly Sitrin | February 14, 2018 | Education
Right now, teachers accused of sexual misconduct can change schools without a report about their behavior following them

Credit: NJTV News Online
Assemblyman Jay Webber
Your child tells you they were abused by their teacher, a sexual predator, and you bring this to the school administration. The school system immediately takes action by suspending the teacher but also agrees to a nondisclosure agreement that allows the teacher to resign and find a job elsewhere without informing their new employer about the allegations.

That’s the situation currently in New Jersey due to a loophole in the laws regarding sexual misconduct and sexual assault in Garden State schools.

The Assembly Education committee debated the issue for nearly two hours on Tuesday, as legislators considered what wording would lead to always supporting the child, rather than the adult, and if that was appropriate. The committee was considering a package of bills addressing sexual misconduct and sexual assault in New Jersey schools, and they were split over language, but eventually voted to release the bills to the floor.

Package of four bills

The series of four bills released Tuesday would require school districts to adopt sexual-abuse education and awareness programs as part of the Core Curriculum Content Standards; develop a curriculum centered on the consequences of sending sexually explicit material through social media; mandate instruction in the intricacies of consent; and require schools to look into sexual abuse history of potential employees.

The NJEA testified that it was in support of the bills but objected to the wording, since it could deny teachers due process. They argued there could be false allegations that would forever impact a teacher’s career.

The legislation comes amid the national #MeToo movement drawing attention to the sexual misconduct of powerful men in the public eye, including Hollywood producer Harvey Weinstein and Olympic physician Larry Nassar. It’s also enmeshed in state issues including the recent Star Ledger investigation into a practice known as “passing the trash,” in which several teachers in the state under investigation for sexual abuse or misconduct jumped from district to district without informing employers of the past allegations.

As is being discussed nationally, a question in the legislative debate is when to believe a child, rather than an adult. Child advocates expressed alarm that an adult would be believed over a child.

Legislation similar to the current bills died in the State House last year when the NJEA declined to take an official position.

Assemblyman Jay Webber is sponsoring one of the bills (A-2199) modeled after regulations in Pennsylvania that would require all schools in the state to review potential teachers’ employment history, looking specifically for allegations of sexual misconduct or child abuse.

“We have a problem in our state,” said Webber (R-Morris). “We have a big loophole for child predators who work with our children in schools, who can commit heinous acts, begin to be investigated about those acts, and then agree to resign before any conclusions are drawn.”

NJEA concerns about bill

Ginger Gold Schnitzer, director of government relations for the NJEA, testified at the meeting that the organization has some concerns about the bill in its current form.

“This bill contains contradictions and inconsistencies that will prevent it from effectively achieving its purpose of protecting students,” Gold said.

Those “areas of concern” are mostly centered on legal definitions laid out in the bill with the intention of protecting accused teachers. The NJEA takes issue with the bill’s legal definition of “child abuse,” which they say is framed in a way that could have an outsized effect on teachers. The bill requires reporting if an individual “reasonably believes” that abuse has occurred. The NJEA in a written critique of the bill argued that it “should be limited to cases in which abuse has been found to be ‘substantiated’ or ‘established’ as defined by the Department of Children and Families.”

They further request that the definition of “unsubstantiated” be clarified and a standard of evidence drawn up to determine whether or not an allegation is “substantiated.” They write “those who are not found guilty should not have their future destroyed because it was expedient for a prior employer to dispose of them.”

Without the NJEA offering their explicit support of the legislation as written, the bills will have a tougher time with approval, and could lead to the same inaction as last year.

Protecting teachers

Some lawmakers are looking for ways to strengthen the bill’s protection for accused teachers. Assemblyman Joe Danielsen (D-Somerset) said that the bill’s 20-day requirement for districts to disclose information about teachers to new employers could put an undue cost burden on schools or invite malicious efforts to stain a teacher’s reputation.

“It would not be unheard of where educators fall into internal politics and are the victims themselves sometimes,” Danielsen said. He said the possibility exists for employers or vengeful students to “gin up allegations” in retribution against a teacher.

The issue of building in more protections for those accused of sexual misconduct reflects a long and controversial debate about how best to deal with sexual assault allegations. President Barack Obama’s 2011 guidelines on Title IX (the federal law that protects students from being sexually harassed on school grounds) set forth the instruction that schools nationwide have a responsibility to respond to all allegations of sexual misconduct. Last September, however, the federal Department of Education under Betsy DeVos rescinded the requirement that schools use the more lax “preponderance of evidence” legal standard in sexual assault cases, instead directing schools to use a “clear and convincing” evidence standard, which puts a burden on those who come forward with accusations.

Advocates consulted

In an effort to protect all parties when drafting the Assembly bill, 18 advocacy organizations were consulted when drafting the legislation, including the New Jersey Coalition Against Sexual Assault (NJCASA) and Prevent Child Abuse New Jersey (PCANJ).

Patricia Teffenhart, NJCASA’s executive director testified in passionate support of the bills and underscored the importance of acknowledging a larger cultural attitude that shames those who come forward with allegations. In their efforts to encourage survivors to speak out, NJCASA established a confidential statewide 24-hour crisis hotline for victims of sexual assault. That number is 800-601-7200.

“The false allegations for sexual assault are no greater than any other crime,” Teffenhart said. “It is clear that no matter how many times we’ve said that message so far, it’s still not being heard.”

She took specific issue with Assemblyman Danielsen’s concern that “ginned up” allegations against teachers could ruin their reputation and ability to seek employment in the state. Teffenhart said that it’s language like Danielsen’s that derails the conversation from assisting and supporting those who are victims of sexual assault in their journey to come forward.

“I was struck by how incongruent our statements can be,” Teffenhart said. “Within one conversation we say we want to protect children, but then we allege that children that are disclosing that they’ve been sexually assaulted are potentially lying.”

Teffenhart said she doesn’t believe the language debate will hamper the bill’s progress to Gov. Phil Murphy’s desk. Murphy himself has said that if legislation closing the sexual predator loophole comes across his desk, he will sign it.

The legislation is scheduled for a vote on Thursday.